<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 9, 1998
Lone Star Industries, Inc.
(Exact name of registrant as specified in its charter)
Delaware 1-2333 13-0982660
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
300 First Stamford Place, P.O. Box 120014, Stamford, CT 06912-0014
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (203) 969-8600
<PAGE> 2
Item 7. Financial Statements and Exhibits.
(a) not applicable
(b) not applicable
(c) Exhibits
1.1. Form of U.S. Purchase Agreement by and between Lone Star
Industries, Inc., the Selling Shareholders named therein and the U.S.
Underwriters named therein.
1.2. Form of International Purchase Agreement by and between Lone
Star Industries, Inc., the Selling Shareholders named therein and the
International Managers named therein.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Lone
Star Industries, Inc. has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
LONE STAR INDUSTRIES, INC.
By: /s/ James W. Langham
--------------------------
James W. Langham
Vice President
Date: December 9, 1998
<PAGE> 1
================================================================================
LONE STAR INDUSTRIES, INC.
(a Delaware corporation)
1,200,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: December 8, 1998
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1. Representations and Warranties........................................................ 4
(a) Representations and Warranties by the Company................................. 4
(i) Compliance with Registration Requirements..................................... 4
(ii) Incorporated Documents........................................................ 5
(iii) Independent Accountants....................................................... 6
(iv) Financial Statements.......................................................... 6
(v) No Material Adverse Change in Business........................................ 6
(vi) Good Standing of the Company.................................................. 7
(vii) Good Standing of Subsidiaries................................................. 7
(viii) Capitalization; Plan of Reorganization........................................ 8
(ix) Authorization of Agreements................................................... 8
(x) Authorization and Description of Securities................................... 8
(xi) Absence of Defaults and Conflicts............................................. 9
(xii) Absence of Labor Dispute...................................................... 10
(xiii) Absence of Proceedings........................................................ 10
(xiv) Accuracy of Exhibits.......................................................... 10
(xv) Possession of Intellectual Property........................................... 11
(xvi) Absence of Further Requirements............................................... 11
(xvii) Possession of Licenses and Permits............................................ 11
(xviii) Title to Property............................................................. 12
(xix) Investment Company Act........................................................ 12
(xx) Environmental Laws............................................................ 12
(xxi) Registration Rights........................................................... 13
(xxii) Taxes......................................................................... 13
(xxiii) Maintenance of Adequate Insurance............................................. 14
(xxiv) Maintenance of Sufficient Internal Controls................................... 14
(xxv) Compliance with Laws.......................................................... 14
(xxvi) Government Regulations........................................................ 14
(xxvii) Year 2000 Compliance.......................................................... 15
(b) Representations and Warranties by the Selling Shareholders................... 15
(i) Accurate Disclosure........................................................... 15
(ii) Authorization of Agreements................................................... 15
(iii) Valid and Marketable Title.................................................... 16
(iv) Absence of Manipulation....................................................... 17
(v) Absence of Further Requirements............................................... 17
(c) Officer's Certificates....................................................... 17
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing....................................... 18
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
(a) Initial Securities........................................................... 18
(b) U.S. Option Securities....................................................... 18
(c) Payment...................................................................... 19
(d) Denominations; Registration.................................................. 20
SECTION 3. Covenants of the Company.............................................................. 20
(a) Compliance with Securities Regulations and Commission Requests............... 20
(b) Filing of Amendments......................................................... 21
(c) Delivery of Registration Statements.......................................... 21
(d) Delivery of Prospectuses..................................................... 21
(e) Continued Compliance with Securities Laws.................................... 22
(f) Blue Sky Qualifications...................................................... 22
(g) Rule 158..................................................................... 23
(h) Listing...................................................................... 23
(i) Company Restriction on Sale of Securities.................................... 23
(j) Reporting Requirements....................................................... 24
SECTION 4. Payment of Expenses................................................................... 24
(a) Expenses..................................................................... 24
(b) Expenses of the Selling Shareholders......................................... 24
(c) Termination of Agreement..................................................... 25
(d) Allocation of Expenses....................................................... 25
SECTION 5. Conditions of U.S. Underwriters' Obligations.......................................... 25
(a) Effectiveness of Registration Statement...................................... 25
(b) Opinion of Counsel for Company............................................... 26
(c) Opinion of Counsel for the Selling Shareholders.............................. 26
(d) Opinion of Counsel for U.S................................................... 26
(e) Officers' Certificate........................................................ 26
(f) Certificates of Selling Shareholders......................................... 27
(g) Accountant's Comfort Letter.................................................. 27
(h) Bring-down Comfort Letter.................................................... 27
(i) Listing...................................................................... 28
(j) Lock-up Agreements........................................................... 28
(k) Selling Shareholder Lock-up.................................................. 28
(l) Purchase of Initial International Securities................................. 28
(m) Conditions to Purchase of U.S. Option Securities............................. 28
(i) Officers' Certificate........................................................ 28
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C>
(ii) Certificate of the Selling Shareholders...................................... 29
(iii) Opinion of Counsels for Company.............................................. 29
(iv) Opinion of Counsel for the Selling Shareholders.............................. 29
(v) Opinion of Counsel for U.S................................................... 29
(vi) Bring-down Comfort Letter.................................................... 29
(n) Purchase of Warrants......................................................... 30
(o) Additional Documents......................................................... 30
(p) Termination of Agreement..................................................... 30
(q) Right to Rely of Selling Shareholders........................................ 30
SECTION 6. Indemnification....................................................................... 31
(a) Indemnification of U.S. Underwriters......................................... 31
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders............................................................... 33
(c) Actions Against Parties; Notification........................................ 33
(d) Settlement Without Consent if Failure to Reimburse........................... 34
SECTION 7. Contribution.......................................................................... 35
SECTION 8. Representations, Warranties and Agreements to Survive Delivery........................ 36
SECTION 9. Termination of Agreement.............................................................. 37
(a) Termination; General......................................................... 37
(b) Liabilities.................................................................. 38
SECTION 10. Default by One or More of the U.S. Underwriters....................................... 38
SECTION 11. Default by One or More of the Selling Shareholders.................................... 39
SECTION 12. Notices............................................................................... 39
SECTION 13. Parties............................................................................... 40
SECTION 14. GOVERNING LAW AND TIME................................................................ 40
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 15. Effect of Headings.................................................................... 40
SCHEDULES
Schedule A - List of U.S. Underwriters......................................................... Sch A-1
Schedule B - List of Selling Shareholders...................................................... Sch B-1
Schedule C - Pricing Information............................................................... Sch C-1
Schedule D List of Subsidiaries.............................................................. Sch D-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Proskauer Rose LLP...................................... A-1
Exhibit A-2 - Form of Opinion of James W. Langham...................................... A-2
Exhibit A-3 - Form of Opinion of Counsel for the Selling Shareholders.................. A-3
Exhibit B-1 - Form of Lock-up Letter..................................................... B-1
Exhibit B-2 - Form of Selling Shareholder Lock-up Letter................................. B-2
Exhibit C - List of Officers and Directors........................................... C-1
</TABLE>
-iv-
<PAGE> 6
LONE STAR INDUSTRIES, INC.
(a Delaware corporation)
1,200,000 Shares of Common Stock
(Par Value $1.00 Per Share)
U.S. PURCHASE AGREEMENT
December 8, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Credit Suisse First Boston Corporation
Warburg Dillon Read LLC
Scott & Stringfellow, Inc.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
LONE STAR INDUSTRIES, INC., a Delaware corporation (the
"Company"), and the other persons listed in Schedule B hereto (the "Selling
Shareholders") confirm their agreement with Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch"), Credit Suisse First Boston Corporation,
Warburg Dillon Read LLC and Scott & Stringfellow, Inc. (collectively, the "U.S.
Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof) with respect to the sale by the
Selling Shareholders, acting severally and not jointly, and the purchase by the
U.S. Underwriters, acting severally and not jointly, of the respective numbers
of shares of Common Stock, par value $1.00 per share, of the Company ("Common
Stock") set forth in Schedule A hereto, and with respect to the grant by the
Selling Shareholders, acting severally and not jointly, to the U.S.
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 180,000 additional shares of
Common Stock (as the same may be adjusted in accordance with the terms of
Section 2(b) hereof) to cover over-allotments, if any. The aforesaid 1,200,000
shares of Common Stock (the "Initial U.S. Securities") to be purchased by the
U.S. Underwriters and all or any part of the 180,000 shares of Common Stock (as
the same may be adjusted in accordance with the terms of Section 2(b) hereof)
<PAGE> 7
-2-
subject to the option described in Section 2(b) hereof (the "U.S. Option
Securities") are hereinafter called, collectively, the "U.S. Securities."
It is understood that the Company and the Selling Shareholders
are concurrently entering into an agreement dated the date hereof (the
"International Purchase Agreement") with Merrill Lynch International, Credit
Suisse First Boston (Europe) Limited, Warburg Dillon Read and Scott &
Stringfellow, Inc. (the "International Managers") providing for the offering by
the Selling Shareholders of an aggregate of 300,000 shares of Common Stock (the
"Initial International Securities") and the grant by the Selling Shareholders,
acting severally and not jointly, to the International Managers, acting
severally and not jointly, of an option to purchase all or any part of the
International Managers' pro rata portion of up to 45,000 additional shares of
Common Stock (as the same may be adjusted in accordance with the terms of the
International Purchase Agreement) solely to cover over-allotments, if any (the
"International Option Securities" and, together with the U.S. Option Securities,
the "Option Securities"). The Initial International Securities and the
International Option Securities are hereinafter called the "International
Securities." It is understood that the Selling Shareholders are not obligated to
sell, and the U.S. Underwriters are not obligated to purchase, any Initial U.S.
Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are
hereinafter collectively called the "Underwriters," the Initial U.S. Securities
and the Initial International Securities are hereinafter collectively called the
"Initial Securities," the U.S. Securities and the International Securities are
hereinafter collectively called the "Securities," and this "U.S. Purchase
Agreement" and the International Purchase Agreement are hereinafter collectively
called the "Purchase Agreements."
The Underwriters will concurrently enter into an
Intersyndicate Agreement of even date herewith (the "Intersyndicate Agreement")
providing for the coordination of certain transactions among the Underwriters
under the direction of Merrill Lynch (in such capacity, the "Global
Coordinator").
The Company and the Selling Shareholders understand that the
U.S. Underwriters propose to make a public offering of the U.S. Securities as
soon as the U.S. Underwriters deem ad-
<PAGE> 8
-3-
visable after this U.S. Purchase Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
033-55377) for the registration of the Securities under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
this U.S. Purchase Agreement. Such registration statement (as so amended) has
been declared effective by the Commission. Such registration statement (as so
amended), including the exhibits thereto and schedules thereto, if any, is
referred to herein as the "Registration Statement." Two forms of prospectus and
prospectus supplement are to be used in connection with the offering and sale of
the Securities: one prospectus and prospectus supplement relating to the U.S.
Securities (collectively, the "Form of U.S. Prospectus") and one prospectus and
prospectus supplement relating to the International Securities (collectively,
the "Form of International Prospectus"). The Form of International Prospectus is
identical to the Form of U.S. Prospectus, except for the front cover and back
cover pages and the information under the caption "Underwriting." The final Form
of U.S. Prospectus (the "U.S. Prospectus") and the final Form of International
Prospectus (the "International Prospectus") relating to the offering of the
Securities, in the form first furnished to the Underwriters by the Company for
use in connection with the offering of the Securities, are collectively referred
to herein as the "Prospectuses." A "preliminary prospectus" shall be deemed to
refer to any prospectus or prospectus supplement that omitted information to be
included upon pricing in a form of prospectus or prospectus supplement filed
with the Commission pursuant to Rule 424 of the 1933 Act Regulations, that was
used after such effectiveness and prior to the execution and delivery of this
U.S. Purchase Agreement. All references to the "Registration Statement," the
"Prospectuses" the "U.S. Prospectus," the "International Prospectus" or any
preliminary prospectus shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"). For purposes of this U.S. Purchase Agreement,
all references to the Registration Statement, the Prospectuses, the U.S.
Prospectus, the International Prospectus or any preliminary prospectus or to any
amendment or supplement to any of the foregoing shall be deemed to include any
copy
<PAGE> 9
-4-
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("EDGAR").
All references in this U.S. Purchase Agreement to financial
statements and schedules (if any) and other information which is "contained,"
"included" or "stated" in the Registration Statement, any preliminary prospectus
or the Prospectuses (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules (if any) and other
information which is incorporated by reference in the Registration Statement,
any preliminary prospectus or the Prospectuses, as the case may be; and all
references in this U.S. Purchase Agreement to amendments or supplements to the
Registration Statement, any preliminary prospectus or the Prospectuses shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 which is incorporated by reference in the Registration
Statement, such preliminary prospectus, or the Prospectuses, as the case may be.
This U.S. Purchase Agreement shall not, as among the parties
thereto, affect, alter, amend or otherwise modify or change or supersede any
representations, warranties, covenants, or provisions, including, but not
limited to, those with respect to indemnification and contribution, set forth in
the Registration Rights Agreement dated July 18, 1994, among the Company, the
Selling Shareholders and the other parties named therein.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
(i) Compliance with Registration Requirements. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with. The Company meets the requirements for use of Form S-3.
<PAGE> 10
-5-
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time (and, if any U.S. Option Securities are purchased, at the Date of
Delivery), the Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither of the
Prospectuses nor any amendments or supplements thereto, at the time the
Prospectuses or any amendments or supplements thereto were issued and
at the Closing Time (and, if any U.S. Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of any U.S.
Underwriter expressly for use in the Registration Statement or the U.S.
Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and each preliminary
prospectus and the Prospectuses delivered to the Underwriters for use
in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectuses, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and when read
together with the other information in the Prospectuses, at the time
the Registration State-
<PAGE> 11
-6-
ment became effective, at the time the Prospectuses were issued and at
the Closing Time, (and, if any Option Securities are purchased, at the
Date of Delivery) did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement and the Prospectuses are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules (if any) and notes, present fairly the financial
position of the entities to which they relate as of the dates indicated
and their respective results of operations, stockholders' equity and
cash flows for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectuses
present fairly the information shown therein and, in the case of the
consolidated financial data therein, have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement, and in the case of the combined financial
data therein, have been compiled from financial statements prepared on
a basis consistent with that of the audited financial statements
included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of
<PAGE> 12
-7-
its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the state of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this U.S. Purchase Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not, singly or in the aggregate, result in a
Material Adverse Effect.
(vii) Good Standing of Subsidiaries. The Company has no
"significant subsidiary" as (as such term is defined in Rule 1-02 of
Regulation S-X). Kosmos Cement Company ("Kosmos") has been duly
organized and is validly existing as a general partnership in good
standing under the laws of the State of Kentucky, has organizational
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not, singly or in the aggregate, result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, the ownership interests of Kosmos have been
duly authorized and validly issued and are owned by the Company
directly, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding ownership
interests of Kosmos were issued in violation of the preemptive or
similar rights of any other partner of Kosmos.
(viii) Capitalization; Plan of Reorganization. The authorized,
issued and outstanding capital stock of the
<PAGE> 13
-8-
Company is as set forth in the Prospectuses under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses). The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company. The Rights under the Company's
Shareholder Rights Plan to which the holders of the Securities will be
entitled have been duly authorized and validly issued. The Order
Confirming Debtors' Modified Amended Consolidated Plan of
Reorganization under Chapter 11 of the Bankruptcy Code of the United
States Bankruptcy Court for the Southern District of New York, dated
February 17, 1994, and the related Modified Amended Disclosure
Statement Regarding Debtors' Modified Amended Consolidated Plan of
Reorganization, dated November 4, 1993, as modified by the Modification
of Debtors' Plan of Reorganization, dated February 17, 1994
(collectively, the "Bankruptcy Orders"), referred to therein have not
been vacated, modified, clarified or amended except as otherwise
described in the Prospectuses.
(ix) Authorization of Agreements. This U.S. Purchase
Agreement and the International Purchase Agreement have been duly
authorized, executed and delivered by the Company.
(x) Authorization and Description of Securities. All of the
Common Stock of the Company, including the Securities to be purchased
by the U.S. Underwriters and the International Managers from the
Selling Shareholders, has been duly authorized and issued by the
Company and is fully paid and non-assessable; the Common Stock conforms
in all material respects to all statements relating thereto contained
in the Prospectuses and such description conforms to the rights set
forth in the instruments defining the same; no holder of the Securities
will be subject to personal liability by reason of being such a holder;
and the sale of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company.
<PAGE> 14
-9-
(xi) Absence of Defaults and Conflicts. The Company is not in
violation of its charter or by-laws (or equivalent constitutive
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 or credit agreement, note,
lease or other agreement (including, but not limited to the Bankruptcy
Orders) or instrument to which the Company is a party or by which it
may be bound, or to which any of the property or assets of the Company
is subject (collectively, "Agreements and Instruments") except for such
defaults that would not, singly or in the aggregate, result in a
Material Adverse Effect; and the execution, delivery and performance of
this U.S. Purchase Agreement and the International Purchase Agreement
and the consummation of the transactions contemplated in this U.S.
Purchase Agreement, the International Purchase Agreement, the
Registration Statement and the Prospectuses and compliance by the
Company with its obligations under this U.S. Purchase Agreement and the
International Purchase Agreement have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws (or
equivalent constitutive documents) of the Company or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its assets, properties
or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company exists or, to the knowledge of the Company, is
threatened, and the Company is not aware of any existing or threatened
labor disturbance by the employees of any of its or any subsidiary's
principal
<PAGE> 15
-10-
suppliers, manufacturers, customers or contractors, which, in either
case, may reasonably be expected to, singly or in the aggregate, result
in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which, singly or in the
aggregate, might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets of the Company or the
consummation of the transactions contemplated in this U.S. Purchase
Agreement and the International Purchase Agreement or the performance
by the Company of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, singly or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xv) Possession of Intellectual Property. The Company owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by it, except to the extent the failure to so own, possess or
be able to acquire would not result in a Material Adverse Effect, and
the Company has not received any notice or is not otherwise aware of
any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual
<PAGE> 16
-11-
Property invalid or inadequate to protect the interest of the Company
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this U.S. Purchase Agreement and the
International Purchase Agreement or the consummation of the
transactions contemplated by this U.S. Purchase Agreement and the
International Purchase Agreement, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations and foreign or state securities or blue sky laws.
(xvii) Possession of Licenses and Permits. Except as otherwise
disclosed in the Registration Statement, the Company possesses such
material permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it; the
Company is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and the Company has not received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xviii) Title to Property. The Company has good and marketable
title to all real property owned by the Company and good title to all
other properties owned by it, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectuses or (b) do not, singly or in the aggre-
<PAGE> 17
-12-
gate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and all of the leases and subleases material to the business of
the Company and under which the Company holds properties described in
the Prospectuses, are in full force and effect, and the Company has no
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xix) Investment Company Act. The Company is not an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the
Registration Statement or the Prospectuses and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
the Company is not in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
pri-
<PAGE> 18
-13-
vate party or governmental body or agency, against or affecting the
Company relating to Hazardous Materials or any Environmental Laws.
(xxi) Registration Rights. There are no persons with
registration rights or other similar rights to have any securities (a)
registered pursuant to the Registration Statement, other than the
Selling Shareholders with respect to the Securities being sold by them
pursuant to this U.S. Purchase Agreement, or (b) otherwise registered
by the Company under the 1933 Act, which rights have not been complied
with by the Company or waived by the holder.
(xxii) Taxes. The Company has filed all necessary federal,
state, local and foreign income, payroll, franchise and other tax
returns (after giving effect to extensions) and have paid all taxes
shown as due thereon or with respect to any of its properties (except
where such failure to file or pay would not result in a Material
Adverse Effect and except for any such tax that currently is being
contested in good faith), and there is no tax deficiency that has been,
or to the knowledge of the Company is likely to be, asserted against
the Company or any of its properties or assets that would result in a
Material Adverse Effect.
(xxiii) Maintenance of Adequate Insurance. The Company is
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as is reasonably prudent in the
business in which it is engaged or proposed to engage after giving
effect to the transactions described in the Prospectuses; and the
Company does not have any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not result in a Material
Adverse Effect.
(xxiv) Maintenance of Sufficient Internal Controls. The Company
maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance
<PAGE> 19
-14-
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxv) Compliance with Laws. To the best of the Company's
knowledge, neither the Company nor any employee or agent of the Company
has made any payment of funds of the Company or received or retained
any funds in violation of any law, rule or regulation, including,
without limitation, the Foreign Corrupt Practices Act.
(xxvi) Government Regulations. To the Company's knowledge, the
Company has complied with all applicable federal, state and local laws,
rules and regulations (collectively, "Government Regulations")
governing any of the Company's businesses (including, without
limitation, those applicable to customers of the Company with which the
Company is obligated to comply), except where the failure to so comply
would not have a Material Adverse Effect; and the Company has not
received any notice of proceedings relating to the violations of such
Government Regulations which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xxvii) Year 2000 Compliance. The disclosure in the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1998,
filed with the SEC under the 1934 Act, under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" is materially correct and complies in all material respects
with SEC Release Number 33-7558.
(b) Representations and Warranties by the Selling
Shareholders. Each Selling Shareholder severally represents and warrants to each
U.S. Underwriter as of the date hereof and as of the Closing Time, and agrees
with each U.S. Underwriter, as follows:
(i) Accurate Disclosure. Such Selling Shareholder has
reviewed and is familiar with the portions of the Registration
Statement and the Prospectuses relating to the Selling Shareholders and
neither such portions of the Prospectuses nor the the comparable
portions of any amendment or supplement thereto includes any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein in the light of
<PAGE> 20
-15-
the circumstances under which they were made, not misleading; provided,
that the representations and warranties set forth in this paragraph
1(b)(i) apply only to statements or omissions in the Registration
Statement or the Prospectuses based upon information relating to such
Selling Shareholder provided to the Company by such Selling Shareholder
expressly for use therein. Such Selling Shareholder is disposing of the
Securities to be sold by it pursuant to the arrangements described in
the Prospectuses.
(ii) Authorization of Agreements. Such Selling Shareholder
has the full corporate right, power and authority to enter into this
U.S. Purchase Agreement and the International Purchase Agreement, and
such Selling Shareholder has the full corporate right, power and
authority to sell, transfer and deliver the Securities to be sold by
such Selling Shareholder hereunder. The execution and delivery of this
U.S. Purchase Agreement and the International Purchase Agreement, and
the sale and delivery of the Securities to be sold by such Selling
Shareholder and the consummation of the transactions contemplated
herein and in the International Purchase Agreement and compliance by
such Selling Shareholder with its obligations hereunder and thereunder
have been duly authorized by such Selling Shareholder and (i) do not
and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any tax, lien, charge
or encumbrance upon the Securities to be sold by such Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note or other material agreement or
instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder may be bound, or to which any of the property
or assets of such Selling Shareholder is subject, nor (ii) will such
action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of such Selling Shareholder,
if applicable, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties (other than the
securities laws of any foreign country), except to the extent any such
conflict, breach, default, tax, lien, charge, encumbrance or violation
would not, singly or in the aggregate, effect the Selling Shareholders'
ability to deliver good
<PAGE> 21
-16-
and valid title to the Securities free and clear of any security
interest, mortgage, pledge, lien charge or encumbrance of any kind.
(iii) Good and Valid Title. Such Selling Shareholder has and
will at the Closing Time have good and valid title to the Securities to
be sold by such Selling Shareholder hereunder and under the
International Purchase Agreement, free and clear of any security
interest, mortgage, pledge, lien, charge or encumbrance of any kind,
other than pursuant to the Purchase Agreements; and upon delivery of
such Securities and payment of the purchase price therefor as
contemplated herein and therein, assuming each such Underwriter has no
notice of any adverse claim, each of the Underwriters will receive good
and valid title to the Securities purchased by it from such Selling
Shareholder, free and clear of any security interest, mortgage, pledge,
lien, charge or encumbrance of any kind.
(iv) Absence of Manipulation. Such Selling Shareholder 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 Securities.
(v) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the valid performance by each
Selling Shareholder of its obligations hereunder or under the
International Purchase Agreement, or in connection with the sale and
delivery of the Securities hereunder or the consummation of the
transactions contemplated by this U.S. Purchase Agreement or the
International Purchase Agreement, except such as may have previously
been made or obtained or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws or under the securities
laws of any foreign country.
(c) Officer's Certificates. Any certificate signed by any
officer of the Company delivered to the U.S. Underwriters or to counsel for the
U.S. Underwriters shall be deemed a representation and warranty by the Company
herein to each U.S. Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Shareholders as such
<PAGE> 22
-17-
and delivered to the U.S. Underwriters or to counsel for the U.S. Underwriters
pursuant to the terms of this U.S. Purchase Agreement shall be deemed a
representation and warranty by such Selling Shareholder to each U.S. Underwriter
as to the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. Each Selling Shareholder, severally
and not jointly, agrees to sell to each U.S. Underwriter, severally and not
jointly, and on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, each U.S. Underwriter,
severally and not jointly, agrees to purchase from each Selling Shareholder, at
the price per share set forth in Schedule C, that proportion of the number of
Initial U.S. Securities set forth in Schedule B opposite the name of such
Selling Shareholder which the number of Initial U.S. Securities set forth in
Schedule A opposite the name of such U.S. Underwriter, plus any additional
number of Initial U.S. Securities which such U.S. Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, bears to
the total number of Initial U.S. Securities, subject in each case, to such
adjustments among the U.S. Underwriters as Merrill Lynch in its sole discretion
shall make to eliminate any sales or purchases of fractional shares.
(b) U.S. Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, each Selling Shareholder, severally and not
jointly, hereby grants an option to the U.S. Underwriters, severally and not
jointly, to purchase up to an additional 180,000 aggregate shares of Common
Stock (as adjusted as set forth in Schedule B) as set forth in Schedule B, at
the price per share set forth in Schedule C (as adjusted as set forth in
Schedule B), less an amount per share equal to any dividends or distributions on
the Common Stock payable prior to the applicable Date of Delivery (as defined
below) to holders of record on a record date which is after the Closing Time.
The option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial U.S. Securities upon notice by the U.S. Underwriters
to the Company and the Selling Shareholders setting forth the number of U.S.
Option Securities as to which the several U.S. Underwriters are then exercising
the
<PAGE> 23
-18-
option and the time and date of payment and delivery for such U.S. Option
Securities. Any such time and date of delivery for the U.S. Option Securities
(each, a "Date of Delivery") shall be determined by the U.S. Underwriters, but
shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the U.S. Option Securities,
each of the U.S. Underwriters, acting severally and not jointly, on the basis of
the representations and warranties of the Company and each Selling Shareholder
contained herein and subject to the terms and conditions herein set forth, will
purchase that proportion of the total number of U.S. Option Securities then
being purchased which the number of Initial U.S. Securities set forth in
Schedule A opposite the name of such U.S. Underwriter bears to the total number
of Initial U.S. Securities, subject in each case to such adjustments as the
Global Coordinator in its discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery
of certificates for the Initial U.S. Securities shall be made at the offices of
Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005 or at such
other place as shall be agreed upon by the U.S. Underwriters, the Company and
the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the U.S. Underwriters and the Selling Shareholders
(such time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option
Securities are purchased by the U.S. Underwriters, payment of the purchase price
for such U.S. Option Securities shall be made at the above-mentioned offices, or
at such other place as shall be agreed upon by the U.S. Underwriters, the
Company and the Selling Shareholders, on each Date of Delivery as specified in
the notice from the U.S. Underwriters to the Company and the Selling
Shareholders.
Payment shall be made to the Selling Shareholders by wire
transfer of immediately available funds to bank accounts designated by the
Selling Shareholders against delivery to the U.S. Underwriters for their
respective accounts of (i) certificates for the Securities to be purchased by
them or (ii) book entry transfers through the facilities of the Deposi-
<PAGE> 24
-19-
tory Trust Company for the Securities to be purchased by them. Merrill Lynch,
individually and not as representative of the U.S. Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the Initial U.S.
Securities or the U.S. Option Securities, if any, to be purchased by any U.S.
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such U.S. Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates, if any, for the
Initial U.S. Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Underwriters may request
in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates, if any, for the
Initial U.S. Securities and the U.S. Option Securities, if any, will be made
available for examination and packaging by the U.S. Underwriters in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company
covenants with each U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will notify the U.S.
Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectuses or any amended Prospectuses shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make
<PAGE> 25
-20-
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the U.S.
Underwriters notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will (i) in all
cases during the period when a prospectus is required to be delivered under the
1933 Act and (ii) thereafter, as to the U.S. Prospectus only, furnish the U.S.
Underwriters with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any
such document to which the U.S. Underwriters or counsel for the U.S.
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the U.S. Underwriters and counsel for the U.S.
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the U.S.
Underwriters, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of
the U.S. Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each U.S. Underwriter, without charge, as many copies of each preliminary
prospectus as such U.S. Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each U.S. Underwriter, without charge, during the period
when the U.S. Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the U.S. Prospectus (as amended or
supplemented) as such U.S. Underwriter may reasonably request. The U.S.
Prospectus and any amendments or supplements thereto furnished to the U.S.
Underwriters will be identical to the electronically
<PAGE> 26
-21-
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this U.S. Purchase Agreement, the
International Purchase Agreement and the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the U.S.
Underwriters or for the Company, to amend the Registration Statement or amend or
supplement any Prospectus in order that the Prospectuses will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of any such counsel, at any such
time to amend the Registration Statement or amend or supplement any Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to the
U.S. Underwriters such number of copies of such amendment or supplement as the
U.S. Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, to the extent necessary, in cooperation with the U.S. Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the U.S. Underwriters may
reasonably designate and to maintain such qualifications in effect for a period
of not less than one year from the date of this U.S. Purchase Agreement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one
<PAGE> 27
-22-
year from the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to continue
the listing of the Securities on the New York Stock Exchange and comply with the
requirements of such exchange to maintain such listing.
(i) Company Restriction on Sale of Securities. During a period
of 90 days from the date hereof, the Company will not, without the prior written
consent of Merrill Lynch, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option, warrant or other contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of or otherwise dispose of or transfer any share of Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock or
file any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the grant of options under any compensation plans; (B)
the issuance of any shares of Common Stock by the Company upon the exercise of
options or warrants or the conversion of securities outstanding on the date
hereof and referred to in the Prospectuses or (C) the purchase or acquisition of
shares of Common Stock pursuant to contracts entered into prior to the date
hereof and referred to in the Prospectuses.
(j) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act and the 1934 Act Regulations within the time periods
referred to therein.
<PAGE> 28
-23-
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to
the performance of its obligations under this U.S. Purchase Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the printing of this U.S. Purchase Agreement, any
agreement among underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the reasonable fees and
disbursements of Rogers & Wells LLP, counsel to the Selling Shareholders, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus and of the Prospectuses and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the Securities, (ix) to the extent any
filings are necessary, the qualification of the Securities under securities laws
in accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto and (x) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange.
(b) Expenses of the Selling Shareholders. The Selling
Shareholders, severally and not jointly, will pay all expenses incident to the
performance of their respective obligations under, and the consummation of the
transactions contemplated by, this U.S. Purchase Agreement, including (i) any
stamp duties, capital duties and stock transfer taxes, if any, payable upon the
sale of the Securities to the U.S. Underwriters, and their transfer between the
U.S. Underwriters pursuant to an agreement between such U.S. Underwriters and
(ii) the fees and disbursements of their respective accountants, if any.
(c) Termination of Agreement. If this U.S. Purchase Agreement
is terminated by the U.S. Underwriters because of the failure of the Company to
comply with the provisions set forth in Section 5(a), 5(b), 5(d), 5(e), 5(g),
5(h), 5(i), 5(j) or 5(n) or Section 9(a)(i) hereof, the Company shall reimburse
the U.S. Underwriters for all of their out-of-pocket expenses
<PAGE> 29
-24-
reasonably incurred by the U.S. Underwriters in connection with this U.S.
Purchase Agreement or the offering of the Securities contemplated hereunder,
including the reasonable fees and disbursements of counsel for the U.S.
Underwriters. If this U.S. Purchase Agreement is terminated by the U.S.
Underwriters because of the failure of the Selling Shareholders to comply with
the provisions set forth in Section 5(c), 5(f), 5(k) or 5(n) or Section 11
hereof, the Selling Shareholders shall reimburse the U.S. Underwriters for all
of their out-of-pocket expenses reasonably incurred by the U.S. Underwriters in
connection with this U.S. Purchase Agreement or the offering of the Securities
contemplated hereunder, including the reasonable fees and disbursements of
counsel for the U.S. Underwriters.
(d) Allocation of Expenses. The provisions of this Section
shall not affect any agreement that the Company and the Selling Shareholders may
make for the sharing of such costs and expenses.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders contained in Section 1 hereof and in certificates of any officer of
the Company or on behalf of any Selling Shareholder delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at the Closing Time, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the U.S. Underwriters. A
prospectus containing information relating to the description of the
Securities, the specific method of distribution and similar matters
shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
Underwriters and the Selling Shareholders shall have received the
favorable opinion, dated as of Closing Time, of Proskauer Rose LLP,
special counsel to the Company, and of James W. Langham, Vice
President, Sec-
<PAGE> 30
-25-
retary and General Counsel to the Company, each in form and substance
satisfactory to counsel for the U.S. Underwriters and substantially in
the form set forth in Exhibits A-1 and A-2 hereto, respectively.
(c) Opinion of Counsel for the Selling Shareholders. At
Closing Time, the U.S. Underwriters shall have received the favorable
opinions, dated as of the Closing Time, of Marcus H. Lamb, counsel to
the Selling Shareholders, in form and substance satisfactory to counsel
for the U.S. Underwriters substantially in the form set forth in
Exhibit A-3 hereto.
(d) Opinion of Counsel for U.S. Underwriters. At Closing Time,
the U.S. Underwriters shall have received the favorable opinion, dated
as of Closing Time, of Cahill Gordon & Reindel, counsel for the U.S.
Underwriters.
(e) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectuses, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business, and the U.S. Underwriters
shall have received a certificate of the President or a Vice President
of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
such officer, are contemplated by the Commission.
(f) Certificates of Selling Shareholders. At Closing Time, the
U.S. Underwriters shall have received certificates signed by each
Selling Shareholder, dated as of Closing Time, to the effect that (i)
the representations and warranties of each Selling Shareholder
contained in Section 1(b) hereof are true and correct in all material
respects with the same force and effect as though ex-
<PAGE> 31
-26-
pressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements
and all conditions on its part to be performed under this U.S. Purchase
Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution
of this U.S. Purchase Agreement, the U.S. Underwriters and the Selling
Shareholders shall have received from PricewaterhouseCoopers LLP a
letter dated such date, in form and substance satisfactory to the U.S.
Underwriters, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectuses.
(h) Bring-down Comfort Letter. At Closing Time, the U.S.
Underwriters and the Selling Shareholders shall have received from
PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days
prior to Closing Time.
(i) Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to
official notice of issuance, as applicable.
(j) Lock-up Agreements. At the date of this U.S. Purchase
Agreement, the U.S. Underwriters shall have received an agreement
substantially in the form of Exhibit B-1 hereto signed by the officers
and directors of the Company set forth on Exhibit C hereto.
(k) Selling Shareholder Lock-up . At the date of this U.S.
Purchase Agreement, the U.S. Underwriters shall have received an
agreement substantially in the form of Exhibit B-2 hereto signed by
each of the Selling Shareholders set forth on Schedule B hereto.
(l) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the
Initial U.S. Securities under this U.S. Pur-
<PAGE> 32
-27-
chase Agreement, the International Managers shall have purchased the
Initial International Securities under the International Purchase
Agreement.
(m) Conditions to Purchase of U.S. Option Securities. In the
event that the U.S. Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the U.S. Option
Securities, the representations and warranties of the Company and the
Selling Shareholders contained herein and the statements in any
certificates furnished by the Company and the Selling Shareholders
hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the U.S. Underwriters and, with respect
to those items set forth in Sections 5(m)(iii) and 5(m)(vi), the
Selling Shareholders shall have received:
(i) Officers' Certificate. A certificate, dated
such Date of Delivery, of the President or a Vice President of
the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of the Selling Shareholders. A
certificate, dated such Date of Delivery, of each Selling
Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(f) hereof remains true and
correct in all material respects as of such Date of Delivery.
(iii) Opinion of Counsels for Company. The favorable
opinion, dated as of such Date of Delivery, of each of the
counsels listed in Section 5(b), each in form and substance
satisfactory to counsel for the U.S. Underwriters, relating to
the U.S. Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iv) Opinion of Counsel for the Selling
Shareholders. The favorable opinion, dated as of such Date of
Delivery, of counsel for the Selling Shareholders, in form and
substance satisfactory to counsel for the U.S. Underwriters,
relating to the U.S. Option Securities to be purchased on such
Date of De-
<PAGE> 33
-28-
livery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(v) Opinion of Counsel for U.S. . The favorable
opinion of Cahill Gordon & Reindel, counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory
to the U.S. Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the U.S. Underwriters pursuant to Section 5(g)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(n) Purchase of Warrants. At the Closing Time, the Company
will purchase from one of the Selling Shareholders warrants to purchase
135,000 shares of Common Stock at a price per warrant of $[ ], it being
understood that the U.S. Underwriters have no obligation to purchase
any such warrants.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the U.S. Underwriters shall have been furnished
with such documents and opinions as they may reasonably request for the
purpose of enabling them to pass upon the sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
and the Selling Shareholders in connection with the sale of the
Securities by the Selling Shareholders as herein contemplated shall be
reasonably satisfactory in form and substance to the U.S. Underwriters
and counsel for the U.S.
Underwriters.
(p) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this U.S. Purchase Agreement, or, in the case of any
condition to the purchase of U.S. Option Securities on a Date of
Delivery which is after the Closing Time, the obligations of the
<PAGE> 34
-29-
several U.S. Underwriters to purchase the relevant U.S. Option
Securities, may be terminated by the U.S. Underwriters by notice to the
Company at any time at or prior to Closing Time or such Date of
Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
(q) Right to Rely of Selling Shareholders. The Selling
Shareholders may rely upon the certificates, documents and opinions
required pursuant to Sections 5(e), 5(m)(i) and 5(o) as if such
documents were addressed to the Selling Shareholders.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. The Company agrees
to indemnify and hold harmless each U.S. Underwriter and each person, if any,
who controls any U.S. Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act to the extent and in the manner set forth in
clauses (i), (ii) and (iii) below (except with respect to material untrue
statements or omissions, or alleged untrue statements or omissions made in the
Registration Statement (or any amendment thereto) or in any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished by a Selling
Shareholder expressly for use in the Registration Statement (or any amendment
thereto)). In addition, each Selling Shareholder (but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions made
in the Registration Statement (or any amendment thereto) or in any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished by such Selling
Shareholder concerning such Selling Shareholder expressly for use in the
Registration Statement (or any amendment thereto)), agrees to indemnify each
U.S. Underwriter and each person, if any, who controls any U.S. Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
<PAGE> 35
-30-
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company or the Selling Shareholder, as
applicable; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
Merrill Lynch), in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment or supplement thereto), or any preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto);
provided, further, that neither the Company nor any Selling Shareholder will be
liable to a U.S. Underwriter with respect to any preliminary prospectus to the
extent that the Company or such Selling Shareholder shall sustain the burden of
proving that any such loss, liability, claim, damage or expense resulted from
the fact that such U.S. Underwriter, in contravention of a requirement of this
U.S. Purchase Agreement or applicable law, sold Securities to a person to whom
such U.S. Underwriter failed to send or give, at or prior to the Closing Time or
Date of Deliv-
<PAGE> 36
-31-
ery, as the case may be, a copy of the U.S. Prospectus, as then
amended or supplemented if: (i) the Company has previously furnished copies
thereof (sufficiently in advance of the Closing Time or Date of Delivery, as the
case may be, to allow for distribution by the Closing Time or Date of Delivery,
as the case may be) to the U.S. Underwriters and the loss, liability, claim,
damage or expense of such U.S. Underwriter resulted from an untrue statement or
omission of a material fact contained in or omitted from the preliminary
prospectus which was corrected in the U.S. Prospectus as, if applicable, amended
or supplemented prior to the Closing Time or Date of Delivery, as the case may
be, and such U.S. Prospectus was required by law to be delivered at or prior to
the written confirmation of sale to such person and (ii) such failure to give or
send such U.S. Prospectus by the Closing Time or Date of Delivery, as the case
may be, to the party or parties asserting such loss, liability, claim, damage or
expense would have cured the defect giving rise to such loss, liability, claim,
damage or expense; provided, further, that each Selling Shareholder's aggregate
liability under this Section 6(a) shall be limited to an amount equal to the
gross proceeds (after deducting the underwriting discount, but before deducting
expenses) received by such Selling Shareholder from the sale of the U.S.
Securities and the International Securities pursuant to the Purchase Agreements.
(b) Indemnification of Company, Directors and Officers and
Selling Shareholders. Each U.S. Underwriter severally agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, each
Selling Shareholder and each person, if any, who controls any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment or supplement thereto), or any preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such U.S.
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment or supplement thereto) or such preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
<PAGE> 37
-32-
(c) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
Merrill Lynch, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received no-
<PAGE> 38
-33-
tice of the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the U.S. Underwriters
on the other hand from the offering of the Securities pursuant to this U.S.
Purchase Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Selling Shareholders on the one hand and of the
U.S. Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the U.S. Securities pursuant to this U.S.
Purchase Agreement shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of the U.S. Securities pursuant to this
U.S. Purchase Agreement (before deducting expenses) received by the Company and
the Selling Shareholders and the total underwriting discount received by the
U.S. Underwriters.
The relative fault of the Company and the Selling Shareholders
and the U.S. Underwriters shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders 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.
<PAGE> 39
-34-
The Company, the Selling Shareholders and the U.S.
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
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 above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no
Selling Shareholder shall be required to contribute any amount in excess of the
amount by which the gross proceeds (after deducting the underwriting discount,
but before deducting the expenses) received by such Selling Shareholder from the
U.S. Securities and the International Securities purchased from such Selling
Shareholder and (ii) no U.S. Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the U.S.
Securities 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 any 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 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls a U.S. Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
U.S. Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company or any the Selling Shareholder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or such Selling Shareholder, as the case may be. The
U.S. Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the number of Ini-
<PAGE> 40
-35-
tial U.S. Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this U.S. Purchase Agreement or in certificates of officers of the Company or
any Selling Shareholder submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any U.S. Underwriter or controlling person, or by or on behalf of the Company or
the Selling Shareholders, and shall survive delivery of the Securities to the
U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Underwriters may terminate
this U.S. Purchase Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the U.S. Underwriters to
purchase and the Selling Shareholders to sell the U.S. Option Securities to be
purchased and sold on such Date of Delivery, by notice to the Company and the
Selling Shareholders, at any time at or prior to Closing Time or any such Date
of Delivery (i) if there has been, since the time of execution of this U.S.
Purchase Agreement or since the respective dates as of which information is
given in the U.S. Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the U.S. Underwriters,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission, or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a
<PAGE> 41
-36-
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this U.S. Purchase Agreement is terminated
pursuant to this Section, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 6, 7 and 8 shall survive such termination and remain in
full force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters.
If one or more of the U.S. Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this U.S. Purchase Agreement (the "Defaulted Securities"), the U.S.
Underwriters shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting U.S. Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the U.S. Underwriters shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of U.S. Securities to be purchased on such date, each of
the non-defaulting U.S. Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. Securities to be purchased on such date, this U.S.
Purchase Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the U.S. Underwriters
to purchase and of the Selling Shareholders to sell the U.S. Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting U.S.
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this U.S. Purchase Agreement or, in
<PAGE> 42
-37-
the case of a Date of Delivery which is after the Closing Time, which does not
result in a termination of the obligation of the U.S. Underwriters to purchase
and the Selling Shareholders to sell the relevant U.S. Option Securities, as the
case may be, either (i) the U.S. Underwriters or (ii) the Company and any
Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"U.S. Underwriter" includes any person substituted for a U.S. Underwriter under
this Section 10.
SECTION 11. Default by One or More of the Selling
Shareholders. If one or more of the Selling Shareholders shall fail at Closing
Time or at a Date of Delivery to sell and deliver the number of Securities which
such Selling Shareholder or Selling Shareholders are obligated to sell
hereunder, and the remaining Selling Shareholders do not exercise the right
hereby granted to increase, pro rata or otherwise, the number of Securities to
be sold by them hereunder to the total number to be sold by all Selling
Shareholders as set forth in Schedule B hereto, then the U.S. Underwriters may,
by notice to the Company and the non-defaulting Selling Shareholders, either (a)
terminate this U.S. Purchase Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, terminate the obligation of the U.S.
Underwriters to purchase and the Selling Shareholders to sell the U.S. Option
Securities to be purchased and sold on such Date of Delivery, without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to
purchase the Securities which the non-defaulting Selling Shareholders and the
Company have agreed to sell hereunder. No action taken pursuant to this Section
11 shall relieve any Selling Shareholder so defaulting from liability, if any,
in respect of such default.
In the event of a default by any Selling Shareholder as
referred to in this Section 11, each of the U.S. Underwriters, the Company and
the non-defaulting Selling Shareholders shall have the right to postpone Closing
Time or the Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectuses or in
any other documents or arrangements.
SECTION 12. 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
<PAGE> 43
-38-
form of telecommunication. Notices to the U.S. Underwriters shall be directed to
the U.S. Underwriters c/o Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated at North Tower, World Financial Center, New York, New York
10281-1201, attention of Alan Blackburn; notices to the Company shall be
directed to it at 300 First Stamford Place, P.O. Box 120014, Stamford, CT 06912,
attention of James W. Langham, Esq.; and notices to the Selling Shareholders
shall be directed to Metropolitan Life Insurance Company, 334 Madison Avenue,
Convert Station, NJ 07961-0633, attention of Charles E. Symington.
SECTION 13. Parties. This U.S. Purchase Agreement shall each
inure to the benefit of and be binding upon the U.S. Underwriters, the Company
and the Selling Shareholders and their respective successors. Nothing expressed
or mentioned in this U.S. Purchase Agreement is intended or shall be construed
to give any person, firm or corporation, other than the U.S. Underwriters, the
Company and the Selling Shareholders and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this U.S. Purchase Agreement or any provision
herein contained. This U.S. Purchase Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the U.S.
Underwriters, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any U.S. Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
<PAGE> 44
-39-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the U.S. Underwriters, the Company and the Selling
Shareholders in accordance with its terms.
Very truly yours,
LONE STAR INDUSTRIES, INC.
By:
-------------------------------------
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By:
-------------------------------------
Name:
Title:
METROPOLITAN LIFE INSURANCE AND ANNUITY COMPANY
By:
-------------------------------------
Name:
Title:
<PAGE> 45
-40-
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
WARBURG DILLON READ LLC
SCOTT & STRINGFELLOW, INC.
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By:
--------------------------
Name:
Title:
<PAGE> 46
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial U.S.
Name of U.S. Underwriters Securities
<S> <C>
Merrill Lynch, Pierce, Fenner &
Smith Incorporated..........................................................
Credit Suisse First Boston Corporation..........................................
Warburg Dillon Read LLC.........................................................
Scott & Stringfellow, Inc.......................................................
---------
Total........................................................................... 1,200,000
=========
</TABLE>
Schedule A-1
<PAGE> 47
SCHEDULE B
<TABLE>
<CAPTION>
Maximum
Number of Number of
Initial U.S. U.S. Option
Securities Securities
to be Sold to be Sold (1)
<S> <C> <C>
Metropolitan Life Insurance
Company.................................................
Metropolitan Insurance and
Annuity Company.........................................
--------- -------
1,200,000 180,000
========= =======
</TABLE>
(1) If a Date of Delivery with respect to the U.S. Option Securities is or could
be on or after December 15, 1998, the Maximum Number of U.S. Option Securities
to be sold and which have not previously been delivered will be doubled and the
purchase price per share set forth in Schedule C hereto shall be reduced by 50%.
Schedule B-1
<PAGE> 48
SCHEDULE C
LONE STAR INDUSTRIES, INC.
Shares of Common Stock
(Par Value $1.00 Per Share)
1. The initial public offering price per share for the U.S.
Securities, determined as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the U.S. Securities to be
paid by the several U.S. Underwriters shall be $[ ], being an amount
equal to the initial public offering price set forth above less $[ ]
per share; provided that the purchase price per share for any U.S.
Option Securities purchased upon the exercise of the over-allotment
option described in Section 2(b) shall be reduced by an amount per
share equal to any dividends or distributions on the Common Stock
payable prior to the applicable Date of Delivery to holders of record
on a record date which is after the Closing Time. The purchase price
per share for the U.S. Option Securities shall also be subject to
adjustment as set forth in Schedule B hereto.
Schedule C-1
<PAGE> 1
LONE STAR INDUSTRIES, INC.
(a Delaware corporation)
300,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: December 8, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1. Representations and Warranties..........................................................4
(a) Representations and Warranties by the Company...................................4
(i) Compliance with Registration Requirements.......................................4
(ii) Incorporated Documents..........................................................5
(iii) Independent Accountants.........................................................6
(iv) Financial Statements............................................................6
(v) No Material Adverse Change in Business..........................................6
(vi) Good Standing of the Company....................................................7
(vii) Good Standing of Subsidiaries...................................................7
(viii) Capitalization; Plan of Reorganization..........................................8
(ix) Authorization of Agreements.....................................................8
(x) Authorization and Description of Securities.....................................8
(xi) Absence of Defaults and Conflicts...............................................9
(xii) Absence of Labor Dispute.......................................................10
(xiii) Absence of Proceedings.........................................................10
(xiv) Accuracy of Exhibits...........................................................10
(xv) Possession of Intellectual Property............................................11
(xvi) Absence of Further Requirements................................................11
(xvii) Possession of Licenses and Permits.............................................11
(xviii) Title to Property..............................................................12
(xix) Investment Company Act.........................................................12
(xx) Environmental Laws.............................................................12
(xxi) Registration Rights............................................................13
(xxii) Taxes..........................................................................13
(xxiii) Maintenance of Adequate Insurance..............................................14
(xxiv) Maintenance of Sufficient Internal Controls....................................14
(xxv) Compliance with Laws...........................................................14
(xxvi) Government Regulations.........................................................14
(xxvii) Year 2000 Compliance...........................................................15
(b) Representations and Warranties by the Selling Shareholders....................15
(i) Accurate Disclosure............................................................15
(ii) Authorization of Agreements....................................................16
(iii) Valid and Marketable Title.....................................................16
(iv) Absence of Manipulation........................................................17
(v) Absence of Further Requirements................................................17
(c) Officer's Certificates.........................................................17
- i -
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 2. Sale and Delivery to International Managers; Closing...................................18
(a) Initial Securities............................................................18
(b) International Option Securities...............................................18
(c) Payment.......................................................................19
(d) Denominations; Registration...................................................20
SECTION 3. Covenants of the Company...............................................................20
(a) Compliance with Securities Regulations and Commission Requests................20
(b) Filing of Amendments..........................................................21
(c) Delivery of Registration Statements...........................................21
(d) Delivery of Prospectuses......................................................22
(e) Continued Compliance with Securities Laws.....................................22
(f) Blue Sky Qualifications.......................................................23
(g) Rule 158......................................................................23
(h) Listing.......................................................................23
(i) Company Restriction on Sale of Securities.....................................23
(j) Reporting Requirements........................................................24
SECTION 4. Payment of Expenses....................................................................24
(a) Expenses......................................................................24
(b) Expenses of the Selling Shareholders..........................................25
(c) Termination of Agreement......................................................25
(d) Allocation of Expenses........................................................25
SECTION 5. Conditions of International Managers' Obligations......................................25
(a) Effectiveness of Registration Statement.......................................26
(b) Opinion of Counsel for Company................................................26
(c) Opinion of Counsel for the Selling Shareholders...............................26
(d) Opinion of Counsel for the International Managers.............................26
(e) Officers' Certificate.........................................................27
(f) Certificates of Selling Shareholders..........................................27
(g) Accountant's Comfort Letter...................................................27
(h) Bring-down Comfort Letter.....................................................28
(i) Listing.......................................................................28
(j) Lock-up Agreements............................................................28
(k) Selling Shareholder Lock-up...................................................28
(l) Purchase of Initial International Securities..................................28
-ii -
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C>
(m) Conditions to Purchase of International Option Securities.....................28
(i) Officers' Certificate..........................................................29
(ii) Certificate of the Selling Shareholders........................................29
(iii) Opinion of Counsels for Company................................................29
(iv) Opinion of Counsel for the Selling Shareholders................................29
(v) Opinion of Counsel for International Managers..................................30
(vi) Bring-down Comfort Letter......................................................30
(n) Purchase of Warrants...........................................................30
(o) Additional Documents...........................................................30
(p) Termination of Agreement.......................................................31
(q) Right to Rely of Selling Shareholders..........................................31
SECTION 6. Indemnification........................................................................31
(a) Indemnification of International Managers.....................................31
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders................................................................33
(c) Actions Against Parties; Notification.........................................34
(d) Settlement Without Consent if Failure to Reimburse............................35
SECTION 7. Contribution...........................................................................35
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.........................37
SECTION 9. Termination of Agreement...............................................................37
(a) Termination; General..........................................................37
(b) Liabilities...................................................................38
SECTION 10. Default by One or More of the International Managers...................................38
SECTION 11. Default by One or More of the Selling Shareholders.....................................39
SECTION 12. Notices................................................................................40
SECTION 13. Parties................................................................................40
SECTION 14. GOVERNING LAW AND TIME.................................................................41
SECTION 15. Effect of Headings.....................................................................41
- iii -
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
Page
<S> <C>
SCHEDULES
Schedule A - List of International Managers....................................................Sch A-1
Schedule B - List of Selling Shareholders......................................................Sch B-1
Schedule C - Pricing Information...............................................................Sch C-1
Schedule D List of Subsidiaries..............................................................Sch D-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Proskauer Rose LLP....................................A-1
Exhibit A-2 - Form of Opinion of James W. Langham......................................A-2
Exhibit A-3 - Form of Opinion of Counsel for the Selling Shareholders..................A-3
Exhibit B-1 - Form of Lock-up Letter...................................................B-1
Exhibit B-2 - Form of Selling Shareholder Lock-up Letter...............................B-2
Exhibit C - List of Officers and Directors...........................................C-1
- iv -
</TABLE>
<PAGE> 6
LONE STAR INDUSTRIES, INC.
(a Delaware corporation)
300,000 Shares of Common Stock
(Par Value $1.00 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
December 8, 1998
MERRILL LYNCH INTERNATIONAL
Credit Suisse First Boston (Europe) Limited
Warburg Dillon Read
Scott & Stringfellow, Inc.
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Place
London EC2Y 9LY
England
Ladies and Gentlemen:
LONE STAR INDUSTRIES, INC., a Delaware corporation (the
"Company"), and the other persons listed in Schedule B hereto (the "Selling
Shareholders") confirm their agreement with Merrill Lynch International
("Merrill Lynch"), Credit Suisse First Boston (Europe) Limited, UBS AG, acting
through its division Warburg Dillon Read ("Warburg Dillon Read") and Scott &
Stringfellow, Inc. (collectively, the "International Managers," which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof) with respect to the sale by the Selling Shareholders, acting severally
and not jointly, and the purchase by the International Managers, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $1.00 per share, of the Company ("Common Stock") set forth in Schedule
A hereto, and with respect to the grant by the Selling Shareholders, acting
severally and not jointly, to the International Managers, acting severally and
not jointly, of the option described in Section 2(b) hereof to purchase all or
any part of 45,000 additional shares of Common Stock (as the same may be
adjusted in accordance with the terms of Section 2(b) hereof) to cover
over-allotments, if any. The aforesaid 300,000 shares of Common Stock (the
"Initial International Securities") to be purchased by the International
Managers and all or any part of the 45,000 shares of Common Stock (as the same
may be adjusted in accordance with the terms of Section 2(b) hereof) subject to
the option described in Section 2(b) hereof (the "International Option
Securities") are hereinafter called, collectively, the "International
Securities."
<PAGE> 7
-2-
It is understood that the Company and the Selling Shareholders
are concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") with Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Credit Suisse First Boston Corporation, Warburg Dillon Read LLC and Scott &
Stringfellow, Inc. (the "U.S. Underwriters") providing for the offering by the
Selling Shareholders of an aggregate of 1,200,000 shares of Common Stock (the
"Initial U.S. Securities") and the grant by the Selling Shareholders, acting
severally and not jointly, to the U.S. Underwriters, acting severally and not
jointly, of an option to purchase all or any part of the U.S. Underwriters' pro
rata portion of up to 180,000 additional shares of Common Stock (as the same may
be adjusted in accordance with the terms of the U.S. Purchase Agreement) solely
to cover over-allotments, if any (the "U.S. Option Securities" and, together
with the International Option Securities, the "Option Securities"). The Initial
U.S. Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities." It is understood that the Selling Shareholders are not obligated to
sell, and the International Managers are not obligated to purchase, any Initial
International Securities unless all of the Initial U.S. Securities are
contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are
hereinafter collectively called the "Underwriters," the Initial International
Securities and the Initial U.S. Securities are hereinafter collectively called
the "Initial Securities," the International Securities and the U.S. Securities
are hereinafter collectively called the "Securities," and this International
Purchase Agreement and the U.S. Purchase Agreement are hereinafter collectively
called the "Purchase Agreements."
The Underwriters will concurrently enter into an
Intersyndicate Agreement of even date herewith (the "Intersyndicate Agreement")
providing for the coordination of certain transactions among the Underwriters
under the direction of Merrill Lynch, Pierce, Fenner & Smith Incorporated (in
such capacity, the "Global Coordinator").
The Company and the Selling Shareholders understand that the
International Managers propose to make a public offering of the International
Securities as soon as the International Managers deem advisable after this
International Purchase Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement
<PAGE> 8
-3-
on Form S-3 (No. 033-55377) for the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"), and the Company
has filed such post-effective amendments thereto as may be required prior to the
execution of this International Purchase Agreement. Such registration statement
(as so amended) has been declared effective by the Commission. Such registration
statement (as so amended), including the exhibits thereto and schedules thereto,
if any, is referred to herein as the "Registration Statement." Two forms of
prospectus and prospectus supplement are to be used in connection with the
offering and sale of the Securities: one prospectus and prospectus supplement
relating to the International Securities (collectively, the "Form of
International Prospectus") and one prospectus and prospectus supplement relating
to the U.S. Securities (collectively, the "Form of U.S. Prospectus"). The Form
of International Prospectus is identical to the Form of U.S. Prospectus, except
for the front cover and back cover pages and the information under the caption
"Underwriting." The final Form of International Prospectus (the "International
Prospectus") and the final Form of U.S. Prospectus (the "U.S. Prospectus")
relating to the offering of the Securities, in the form first furnished to the
Underwriters by the Company for use in connection with the offering of the
Securities, are collectively referred to herein as the "Prospectuses." A
"preliminary prospectus" shall be deemed to refer to any prospectus or
prospectus supplement that omitted information to be included upon pricing in a
form of prospectus or prospectus supplement filed with the Commission pursuant
to Rule 424 of the 1933 Act Regulations, that was used after such effectiveness
and prior to the execution and delivery of this International Purchase
Agreement. All references to the "Registration Statement," the "Prospectuses"
the "U.S. Prospectus," the "International Prospectus" or any preliminary
prospectus shall also be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"). For purposes of this International Purchase Agreement, all references to
the Registration Statement, the Prospectuses, the U.S. Prospectus, the
International Prospectus or any preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this International Purchase Agreement to
financial statements and schedules (if any) and other
<PAGE> 9
-4-
information which is "contained," "included" or "stated" in the Registration
Statement, any preliminary prospectus or the Prospectuses (or other references
of like import) shall be deemed to mean and include all such financial
statements and schedules (if any) and other information which is incorporated by
reference in the Registration Statement, any preliminary prospectus or the
Prospectuses, as the case may be; and all references in this International
Purchase Agreement to amendments or supplements to the Registration Statement,
any preliminary prospectus or the Prospectuses shall be deemed to mean and
include the filing of any document under the Securities Exchange Act of 1934
which is incorporated by reference in the Registration Statement, such
preliminary prospectus, or the Prospectuses, as the case may be.
This International Purchase Agreement shall not, as among the
parties thereto, affect, alter, amend or otherwise modify or change or supersede
any representations, warranties, covenants, or provisions, including, but not
limited to, those with respect to indemnification and contribution, set forth in
the Registration Rights Agreement dated July 18, 1994, among the Company, the
Selling Shareholders and the other parties named therein.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) Compliance with Registration Requirements. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with. The Company meets the requirements for use of Form S-3.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time (and, if any International Option Securities are purchased, at the
Date of Delivery), the
<PAGE> 10
-5-
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any International Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of any
International Manager expressly for use in the Registration Statement
or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and each preliminary
prospectus and the Prospectuses delivered to the Underwriters for use
in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectuses, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and when read
together with the other information in the Prospectuses, at the time
the Registration Statement became effective, at the time the
Prospectuses were issued and at the Closing Time, (and, if any Option
Securities are purchased, at the Date of Delivery) did not and
<PAGE> 11
-6-
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the
Registration Statement and the Prospectuses are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules (if any) and notes, present fairly the financial
position of the entities to which they relate as of the dates indicated
and their respective results of operations, stockholders' equity and
cash flows for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectuses
present fairly the information shown therein and, in the case of the
consolidated financial data therein, have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement, and in the case of the combined financial
data therein, have been compiled from financial statements prepared on
a basis consistent with that of the audited financial statements
included in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise,
<PAGE> 12
-7-
and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the state of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this International Purchase Agreement; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not, singly or in
the aggregate, result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. The Company has no
"significant subsidiary" as (as such term is defined in Rule 1-02 of
Regulation S-X). Kosmos Cement Company ("Kosmos") has been duly
organized and is validly existing as a general partnership in good
standing under the laws of the State of Kentucky, has organizational
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not, singly or in the aggregate, result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, the ownership interests of Kosmos have been
duly authorized and validly issued and are owned by the Company
directly, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding ownership
interests of Kosmos were issued in violation of the preemptive or
similar rights of any other partner of Kosmos.
(viii) Capitalization; Plan of Reorganization. The authorized,
issued and outstanding capital stock of the Company is as set forth in
the Prospectuses under the caption "Capitalization" (except for
subsequent issuances, if
<PAGE> 13
-8-
any, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectuses or pursuant to the exercise of
convertible securities or options referred to in the Prospectuses). The
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company. The Rights under the
Company's Shareholder Rights Plan to which the holders of the
Securities will be entitled have been duly authorized and validly
issued. The Order Confirming Debtors' Modified Amended Consolidated
Plan of Reorganization under Chapter 11 of the Bankruptcy Code of the
United States Bankruptcy Court for the Southern District of New York,
dated February 17, 1994, and the related Modified Amended Disclosure
Statement Regarding Debtors' Modified Amended Consolidated Plan of
Reorganization, dated November 4, 1993, as modified by the Modification
of Debtors' Plan of Reorganization, dated February 17, 1994
(collectively, the "Bankruptcy Orders"), referred to therein have not
been vacated, modified, clarified or amended except as otherwise
described in the Prospectuses.
(ix) Authorization of Agreements. This International Purchase
Agreement and the U.S. Purchase Agreement have been duly authorized,
executed and delivered by the Company.
(x) Authorization and Description of Securities. All of the
Common Stock of the Company, including the Securities to be purchased
by the International Managers and the U.S. Underwriters from the
Selling Shareholders, has been duly authorized and issued by the
Company and is fully paid and non-assessable; the Common Stock conforms
in all material respects to all statements relating thereto contained
in the Prospectuses and such description conforms to the rights set
forth in the instruments defining the same; no holder of the Securities
will be subject to personal liability by reason of being such a holder;
and the sale of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company.
(xi) Absence of Defaults and Conflicts. The Company is not in
violation of its charter or by-laws (or equivalent constitutive
documents) or in default in the perform-
<PAGE> 14
-9-
ance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement (including, but not
limited to the Bankruptcy Orders) or instrument to which the Company is
a party or by which it may be bound, or to which any of the property or
assets of the Company is subject (collectively, "Agreements and
Instruments") except for such defaults that would not, singly or in the
aggregate, result in a Material Adverse Effect; and the execution,
delivery and performance of this International Purchase Agreement and
the U.S. Purchase Agreement and the consummation of the transactions
contemplated in this International Purchase Agreement, the U.S.
Purchase Agreement, the Registration Statement and the Prospectuses and
compliance by the Company with its obligations under this International
Purchase Agreement and the U.S. Purchase Agreement have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws (or
equivalent constitutive documents) of the Company or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its assets, properties
or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company exists or, to the knowledge of the Company, is
threatened, and the Company is not aware of any existing or threatened
labor disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which,
<PAGE> 15
-10-
in either case, may reasonably be expected to, singly or in the
aggregate, result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which, singly or in the
aggregate, might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets of the Company or the
consummation of the transactions contemplated in this International
Purchase Agreement and the U.S. Purchase Agreement or the performance
by the Company of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, singly or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which
have not been so described and filed as required.
(xv) Possession of Intellectual Property. The Company owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by it, except to the extent the failure to so own, possess or
be able to acquire would not result in a Material Adverse Effect, and
the Company has not received any notice or is not otherwise aware of
any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to
protect the interest of
<PAGE> 16
-11-
the Company therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this International Purchase Agreement and
the U.S. Purchase Agreement or the consummation of the transactions
contemplated by this International Purchase Agreement and the U.S.
Purchase Agreement, except such as have been already obtained or as may
be required under the 1933 Act or the 1933 Act Regulations and foreign
or state securities or blue sky laws.
(xvii) Possession of Licenses and Permits. Except as otherwise
disclosed in the Registration Statement, the Company possesses such
material permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it; the
Company is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and the Company has not received any
notice of proceedings relating to the revocation or modification of any
such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xviii) Title to Property. The Company has good and marketable
title to all real property owned by the Company and good title to all
other properties owned by it, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectuses or (b) do not, singly or in the aggregate, materially
affect the value of such property and do
<PAGE> 17
-12-
not interfere with the use made and proposed to be made of such
property by the Company and all of the leases and subleases material to
the business of the Company and under which the Company holds
properties described in the Prospectuses, are in full force and effect,
and the Company has no notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company under
any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company to the continued possession of
the leased or subleased premises under any such lease or sublease.
(xix) Investment Company Act. The Company is not an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the
Registration Statement or the Prospectuses and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
the Company is not in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental
Law against the Company and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or af-
<PAGE> 18
-13-
fecting the Company relating to Hazardous Materials or any
Environmental Laws.
(xxi) Registration Rights. There are no persons with
registration rights or other similar rights to have any securities (a)
registered pursuant to the Registration Statement, other than the
Selling Shareholders with respect to the Securities being sold by them
pursuant to this International Purchase Agreement, or (b) otherwise
registered by the Company under the 1933 Act, which rights have not
been complied with by the Company or waived by the holder.
(xxii) Taxes. The Company has filed all necessary federal,
state, local and foreign income, payroll, franchise and other tax
returns (after giving effect to extensions) and have paid all taxes
shown as due thereon or with respect to any of its properties (except
where such failure to file or pay would not result in a Material
Adverse Effect and except for any such tax that currently is being
contested in good faith), and there is no tax deficiency that has been,
or to the knowledge of the Company is likely to be, asserted against
the Company or any of its properties or assets that would result in a
Material Adverse Effect.
(xxiii) Maintenance of Adequate Insurance. The Company is
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as is reasonably prudent in the
business in which it is engaged or proposed to engage after giving
effect to the transactions described in the Prospectuses; and the
Company does not have any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not result in a Material
Adverse Effect.
(xxiv) Maintenance of Sufficient Internal Controls. The Company
maintains a system of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance
<PAGE> 19
-14-
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxv) Compliance with Laws. To the best of the Company's
knowledge, neither the Company nor any employee or agent of the Company
has made any payment of funds of the Company or received or retained
any funds in violation of any law, rule or regulation, including,
without limitation, the Foreign Corrupt Practices Act.
(xxvi) Government Regulations. To the Company's knowledge, the
Company has complied with all applicable federal, state and local laws,
rules and regulations (collectively, "Government Regulations")
governing any of the Company's businesses (including, without
limitation, those applicable to customers of the Company with which the
Company is obligated to comply), except where the failure to so comply
would not have a Material Adverse Effect; and the Company has not
received any notice of proceedings relating to the violations of such
Government Regulations which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xxvii) Year 2000 Compliance. The disclosure in the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1998,
filed with the SEC under the 1934 Act, under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" is materially correct and complies in all material respects
with SEC Release Number 33-7558.
(b) Representations and Warranties by the Selling
Shareholders. Each Selling Shareholder severally represents and warrants to each
International Manager as of the date hereof and as of the Closing Time, and
agrees with each International Manager, as follows:
(i) Accurate Disclosure. Such Selling Shareholder has
reviewed and is familiar with the portions of the Registration
Statement and the Prospectuses relating to the Selling Shareholders and
neither such portions of the Prospectuses nor the comparable portions
of any amendment or supplement thereto includes any untrue statement of
a material fact or omits to state a material fact necessary in order to
make the statements therein in the light of the
<PAGE> 20
-15-
circumstances under which they were made, not misleading; provided,
that the representations and warranties set forth in this paragraph
1(b)(i) apply only to statements or omissions in the Registration
Statement or the Prospectuses based upon information relating to such
Selling Shareholder provided to the Company by such Selling Shareholder
expressly for use therein. Such Selling Shareholder is disposing of the
Securities to be sold by it pursuant to the arrangements described in
the Prospectuses.
(ii) Authorization of Agreements. Such Selling Shareholder
has the full corporate right, power and authority to enter into this
International Purchase Agreement and the U.S. Purchase Agreement, and
such Selling Shareholder has the full corporate right, power and
authority to sell, transfer and deliver the Securities to be sold by
such Selling Shareholder hereunder. The execution and delivery of this
International Purchase Agreement and the U.S. Purchase Agreement, and
the sale and delivery of the Securities to be sold by such Selling
Shareholder and the consummation of the transactions contemplated
herein and in the U.S. Purchase Agreement and compliance by such
Selling Shareholder with its obligations hereunder and thereunder have
been duly authorized by such Selling Shareholder and (i) do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any tax, lien, charge
or encumbrance upon the Securities to be sold by such Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note or other material agreement or
instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder may be bound, or to which any of the property
or assets of such Selling Shareholder is subject, nor (ii) will such
action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of such Selling Shareholder,
if applicable, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties (other than the
securities laws of any foreign country), except to the extent any such
conflict, breach, default, tax, lien, charge, encumbrance or violation
would not, singly or in the aggregate, effect the Selling Shareholders'
ability to deliver good and valid title to the
<PAGE> 21
-16-
Securities free and clear of any security interest, mortgage, pledge,
lien charge or encumbrance of any kind.
(iii) Good and Valid Title. Such Selling Shareholder has and
will at the Closing Time have good and valid title to the Securities to
be sold by such Selling Shareholder hereunder and under the U.S.
Purchase Agreement, free and clear of any security interest, mortgage,
pledge, lien, charge or encumbrance of any kind, other than pursuant to
the Purchase Agreements; and upon delivery of such Securities and
payment of the purchase price therefor as contemplated herein and
therein, assuming each such Underwriter has no notice of any adverse
claim, each of the Underwriters will receive good and valid title to
the Securities purchased by it from such Selling Shareholder, free and
clear of any security interest, mortgage, pledge, lien, charge or
encumbrance of any kind.
(iv) Absence of Manipulation. Such Selling Shareholder 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 Securities.
(v) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the valid performance by each
Selling Shareholder of its obligations hereunder or under the U.S.
Purchase Agreement, or in connection with the sale and delivery of the
Securities hereunder or the consummation of the transactions
contemplated by this International Purchase Agreement or the U.S.
Purchase Agreement, except such as may have previously been made or
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws or under the securities laws of
any foreign country.
(c) Officer's Certificates. Any certificate signed by any
officer of the Company delivered to the International Managers or to counsel for
the International Managers shall be deemed a representation and warranty by the
Company herein to each International Manager as to the matters covered thereby;
and any certificate signed by or on behalf of the Selling Shareholders as such
and delivered to the International Manag-
<PAGE> 22
-17-
ers or to counsel for the International Managers pursuant to the terms
of this International Purchase Agreement shall be deemed a
representation and warranty by such Selling Shareholder to each
International Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers;
Closing.
(a) Initial Securities. Each Selling Shareholder, severally
and not jointly, agrees to sell to each International Manager, severally and not
jointly, and on the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, each International
Manager, severally and not jointly, agrees to purchase from each Selling
Shareholder, at the price per share set forth in Schedule C, that proportion of
the number of Initial International Securities set forth in Schedule B opposite
the name of such Selling Shareholder which the number of Initial International
Securities set forth in Schedule A opposite the name of such International
Manager, plus any additional number of Initial International Securities which
such International Managers may become obligated to purchase pursuant to the
provisions of Section 10 hereof, bears to the total number of Initial
International Securities, subject in each case, to such adjustments among the
International Managers as Merrill Lynch in its sole discretion shall make to
eliminate any sales or purchases of fractional shares.
(b) International Option Securities. In addition, on the basis
of the representations and warranties herein contained and subject to the terms
and conditions herein set forth, each Selling Shareholder, severally and not
jointly, hereby grants an option to the International Managers, severally and
not jointly, to purchase up to an additional 45,000 aggregate shares of Common
Stock (as adjusted as set forth in Schedule B) as set forth in Schedule B, at
the price per share set forth in Schedule C (as adjusted as set forth in
Schedule B), less an amount per share equal to any dividends or distributions on
the Common Stock payable prior to the applicable Date of Delivery (as defined
below) to holders of record on a record date which is after the Closing Time.
The option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial International Securities upon notice by the
International Managers to the Company and the Selling Shareholders setting forth
<PAGE> 23
-18-
the number of International Option Securities as to which the several
International Managers are then exercising the option and the time and date of
payment and delivery for such International Option Securities. Any such time and
date of delivery for the International Option Securities (each, a "Date of
Delivery") shall be determined by the International Managers, but shall not be
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, on the basis of
the representations and warranties of the Company and each Selling Shareholder
contained herein and subject to the terms and conditions herein set forth, will
purchase that proportion of the total number of International Option Securities
then being purchased which the number of Initial International Securities set
forth in Schedule A opposite the name of such International Manager bears to the
total number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery
of certificates for the Initial International Securities shall be made at the
offices of Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005 or
at such other place as shall be agreed upon by the International Managers, the
Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the International Managers and the
Selling Shareholders (such time and date of payment and delivery being herein
called "Closing Time").
In addition, in the event that any or all of the International
Option Securities are purchased by the International Managers, payment of the
purchase price for such International Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
International Managers, the Company and the Selling Shareholders, on each Date
of Delivery as specified in the notice from the International Managers to the
Company and the Selling Shareholders.
Payment shall be made to the Selling Shareholders by wire
transfer of immediately available funds to bank accounts
<PAGE> 24
-19-
designated by the Selling Shareholders against delivery to the International
Managers for their respective accounts of (i) certificates for the Securities to
be purchased by them or (ii) book entry transfers through the facilities of the
Depository Trust Company for the Securities to be purchased by them. Merrill
Lynch, individually and not as representative of the International Managers, may
(but shall not be obligated to) make payment of the purchase price for the
Initial International Securities or the International Option Securities, if any,
to be purchased by any International Manager whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such International Manager from its obligations
hereunder.
(d) Denominations; Registration. Certificates, if any, for the
Initial International Securities and the International Option Securities, if
any, shall be in such denominations and registered in such names as the
International Managers may request in writing at least one full business day
before the Closing Time or the relevant Date of Delivery, as the case may be.
The certificates, if any, for the Initial International Securities and the
International Option Securities, if any, will be made available for examination
and packaging by the International Managers in The City of New York not later
than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants
with each International Manager as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will notify the International
Managers immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectuses or any amended Prospectuses shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such
<PAGE> 25
-20-
purposes. The Company will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
International Managers notice of its intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b)), or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will (i) in all
cases during the period when a prospectus is required to be delivered under the
1933 Act and (ii) thereafter, as to the U.S. Prospectus only, furnish the
International Managers with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the International Managers or counsel for the
International Managers shall reasonably object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the International Managers and counsel for the
International Managers, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the International
Managers, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of
the International Managers. The copies of the Registration Statement and each
amendment thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager,
<PAGE> 26
-21-
without charge, during the period when the International Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
International Prospectus (as amended or supplemented) as such International
Manager may reasonably request. The International Prospectus and any amendments
or supplements thereto furnished to the International Managers will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this International Purchase Agreement, the
U.S. Purchase Agreement and the Prospectuses. If at any time when a prospectus
is required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the reasonable opinion of counsel for the International
Managers or for the Company, to amend the Registration Statement or amend or
supplement any Prospectus in order that the Prospectuses will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of any such counsel, at any such
time to amend the Registration Statement or amend or supplement any Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to the
International Managers such number of copies of such amendment or supplement as
the International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, to the extent necessary, in cooperation with the International
Managers, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions as the International
Managers may reasonably designate and to maintain such qualifications in effect
for a period of not less than one year from the date of this International
Purchase Agreement; provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign
corporation or
<PAGE> 27
-22-
as a dealer in securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to continue
the listing of the Securities on the New York Stock Exchange and comply with the
requirements of such exchange to maintain such listing.
(i) Company Restriction on Sale of Securities. During a period
of 90 days from the date hereof, the Company will not, without the prior written
consent of Merrill Lynch, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option, warrant or other contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of or otherwise dispose of or transfer any share of Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock or
file any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the grant of options under any compensation plans; (B)
the issuance of any shares of Common Stock by the Company upon the exercise of
options or warrants or the conversion of securities outstanding on the date
hereof and referred to in the Prospectuses or (C) the purchase or acquisition of
shares of Common Stock pursuant to contracts entered into prior to the date
hereof and referred to in the Prospectuses.
<PAGE> 28
-23-
(j) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act and the 1934 Act Regulations within the time periods
referred to therein.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to
the performance of its obligations under this International Purchase Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the printing of this International Purchase Agreement,
any agreement among underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the reasonable fees and
disbursements of Rogers & Wells LLP, counsel to the Selling Shareholders, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus and of the Prospectuses and any amendments or supplements thereto,
(vii) the preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the Securities, (ix) to the extent any
filings are necessary, the qualification of the Securities under securities laws
in accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto and (x) the fees and expenses incurred in
connection with the listing of the Securities on the New York Stock Exchange.
(b) Expenses of the Selling Shareholders. The Selling
Shareholders, severally and not jointly, will pay all expenses incident to the
performance of their respective obligations under, and the consummation of the
transactions contemplated by, this International Purchase Agreement, including
(i) any stamp duties, capital duties and stock transfer taxes, if any, payable
upon the sale of the Securities to the International Managers, and their
transfer between the International Managers pursuant to an agreement between
such International
<PAGE> 29
-24-
Managers and (ii) the fees and disbursements of their respective accountants, if
any.
(c) Termination of Agreement. If this International Purchase
Agreement is terminated by the International Managers because of the failure of
the Company to comply with the provisions set forth in Section 5(a), 5(b), 5(d),
5(e), 5(g), 5(h), 5(i), 5(j) or 5(n) or Section 9(a)(i) hereof, the Company
shall reimburse the International Managers for all of their out-of-pocket
expenses reasonably incurred by the International Managers in connection with
this International Purchase Agreement or the offering of the Securities
contemplated hereunder, including the reasonable fees and disbursements of
counsel for the International Managers. If this International Purchase Agreement
is terminated by the International Managers because of the failure of the
Selling Shareholders to comply with the provisions set forth in Section 5(c),
5(f), 5(k) or 5(n) or Section 11 hereof, the Selling Shareholders shall
reimburse the International Managers for all of their out-of-pocket expenses
reasonably incurred by the International Managers in connection with this
International Purchase Agreement or the offering of the Securities contemplated
hereunder, including the reasonable fees and disbursements of counsel for the
International Managers.
(d) Allocation of Expenses. The provisions of this Section
shall not affect any agreement that the Company and the Selling Shareholders may
make for the sharing of such costs and expenses.
SECTION 5. Conditions of International Managers' Obligations.
The obligations of the several International Managers hereunder are subject to
the accuracy of the representations and warranties of the Company and the
Selling Shareholders contained in Section 1 hereof and in certificates of any
officer of the Company or on behalf of any Selling Shareholder delivered
pursuant to the provisions hereof, to the performance by the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at the Closing Time, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to
<PAGE> 30
-25-
the International Managers. A prospectus containing information
relating to the description of the Securities, the specific method of
distribution and similar matters shall have been filed with the
Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
International Managers and the Selling Shareholders shall have received
the favorable opinion, dated as of Closing Time, of Proskauer Rose LLP,
special counsel to the Company, and of James W. Langham, Vice
President, Secretary and General Counsel to the Company, each in form
and substance satisfactory to counsel for the International Managers
and substantially in the form set forth in Exhibits A-1 and A-2 hereto,
respectively.
(c) Opinion of Counsel for the Selling Shareholders. At
Closing Time, the International Managers shall have received the
favorable opinions, dated as of the Closing Time, of Marcus H. Lamb,
counsel to the Selling Shareholders, in form and substance satisfactory
to counsel for the International Managers substantially in the form set
forth in Exhibit A-3 hereto.
(d) Opinion of Counsel for the International Managers. At
Closing Time, the International Managers shall have received the
favorable opinion, dated as of Closing Time, of Cahill Gordon &
Reindel, counsel for the International Managers.
(e) Officers' Certificate. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectuses, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business, and the International
Managers shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and
as of Closing Time, (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time, and (iv) no stop
<PAGE> 31
-26-
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of such officer, are contemplated by
the Commission.
(f) Certificates of Selling Shareholders. At Closing Time, the
International Managers shall have received certificates signed by each
Selling Shareholder, dated as of Closing Time, to the effect that (i)
the representations and warranties of each Selling Shareholder
contained in Section 1(b) hereof are true and correct in all material
respects with the same force and effect as though expressly made at and
as of Closing Time and (ii) each Selling Shareholder has complied in
all material respects with all agreements and all conditions on its
part to be performed under this International Purchase Agreement at or
prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution
of this International Purchase Agreement, the International Managers
and the Selling Shareholders shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and
substance satisfactory to the International Managers, together with
signed or reproduced copies of such letter for each of the other
International Managers containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectuses.
(h) Bring-down Comfort Letter. At Closing Time, the
International Managers and the Selling Shareholders shall have received
from PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to Closing Time.
(i) Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange, subject only to
official notice of issuance, as applicable.
(j) Lock-up Agreements. At the date of this International
Purchase Agreement, the International Managers shall have received an
agreement substantially in the form
<PAGE> 32
-27-
of Exhibit B-1 hereto signed by the officers and directors of the
Company set forth on Exhibit C hereto.
(k) Selling Shareholder Lock-up . At the date of this
International Purchase Agreement, the International Managers shall have
received an agreement substantially in the form of Exhibit B-2 hereto
signed by each of the Selling Shareholders set forth on Schedule B
hereto.
(l) Purchase of Initial International Securities.
Contemporaneously with the purchase by the International Managers of
the Initial International Securities under this International Purchase
Agreement, the U.S. Underwriters shall have purchased the Initial U.S.
Securities under the U.S. Purchase Agreement.
(m) Conditions to Purchase of International Option Securities.
In the event that the International Managers exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
International Option Securities, the representations and warranties of
the Company and the Selling Shareholders contained herein and the
statements in any certificates furnished by the Company and the Selling
Shareholders hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the International
Managers and, with respect to those items set forth in Sections
5(m)(iii) and 5(m)(vi), the Selling Shareholders shall have received:
(i) Officers' Certificate. A certificate, dated
such Date of Delivery, of the President or a Vice President of
the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of the Selling Shareholders. A
certificate, dated such Date of Delivery, of each Selling
Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(f) hereof remains true and
correct in all material respects as of such Date of Delivery.
(iii) Opinion of Counsels for Company. The favorable
opinion, dated as of such Date of Delivery, of each of the
counsels listed in Section 5(b), each in form and substance
satisfactory to counsel for the
<PAGE> 33
-28-
International Managers, relating to the International Option
Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iv) Opinion of Counsel for the Selling
Shareholders. The favorable opinion, dated as of such Date of
Delivery, of counsel for the Selling Shareholders, in form and
substance satisfactory to counsel for the International
Managers, relating to the International Option Securities to
be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
(v) Opinion of Counsel for International Managers.
The favorable opinion of Cahill Gordon & Reindel, counsel for
the International Managers, dated such Date of Delivery,
relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory
to the International Managers and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the International Managers pursuant to Section
5(g) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(n) Purchase of Warrants. At the Closing Time, the Company
will purchase from one of the Selling Shareholders warrants to purchase
135,000 shares of Common Stock at a price per warrant of $[ ], it being
understood that the International Managers have no obligation to
purchase any such warrants.
(o) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been
furnished with such documents and opinions as they may reasonably
request for the purpose of enabling them to pass upon the sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Company and the Selling
<PAGE> 34
-29-
Shareholders in connection with the sale of the Securities by
the Selling Shareholders as herein contemplated shall be
reasonably satisfactory in form and substance to the
International Managers and counsel for the International
Managers.
(p) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this International Purchase Agreement, or, in the case of
any condition to the purchase of International Option Securities on a
Date of Delivery which is after the Closing Time, the obligations of
the several International Managers to purchase the relevant
International Option Securities, may be terminated by the International
Managers by notice to the Company at any time at or prior to Closing
Time or such Date of Delivery, as the case may be, and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
(q) Right to Rely of Selling Shareholders. The Selling
Shareholders may rely upon the certificates, documents and opinions
required pursuant to Sections 5(e), 5(m)(i) and 5(o) as if such
documents were addressed to the Selling Shareholders.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. The Company
agrees to indemnify and hold harmless each International Manager and each
person, if any, who controls any International Manager within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in
the manner set forth in clauses (i), (ii) and (iii) below (except with respect
to material untrue statements or omissions, or alleged untrue statements or
omissions made in the Registration Statement (or any amendment thereto) or in
any preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto) in reliance upon and in conformity with information furnished by a
Selling Shareholder expressly for use in the Registration Statement (or any
amendment thereto)). In addition, each Selling Shareholder (but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions made in the Registration Statement (or any amendment thereto) or in
any preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto) in reliance upon and
<PAGE> 35
-30-
in conformity with information furnished by such Selling Shareholder concerning
such Selling Shareholder expressly for use in the Registration Statement (or any
amendment thereto)), agrees to indemnify each International Manager and each
person, if any, who controls any International Manager within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company or the Selling Shareholder, as
applicable; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
Merrill Lynch), in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in con-
<PAGE> 36
-31-
formity with written information furnished to the Company by any International
Manager through Merrill Lynch expressly for use in the Registration Statement
(or any amendment or supplement thereto), or any preliminary prospectus or the
International Prospectus (or any amendment or supplement thereto); provided,
further, that neither the Company nor any Selling Shareholder will be liable to
an International Manager with respect to any preliminary prospectus to the
extent that the Company or such Selling Shareholder shall sustain the burden of
proving that any such loss, liability, claim, damage or expense resulted from
the fact that such International Manager, in contravention of a requirement of
this International Purchase Agreement or applicable law, sold Securities to a
person to whom such International Manager failed to send or give, at or prior to
the Closing Time or Date of Delivery, as the case may be, a copy of the
International Prospectus, as then amended or supplemented if: (i) the Company
has previously furnished copies thereof (sufficiently in advance of the Closing
Time or Date of Delivery, as the case may be, to allow for distribution by the
Closing Time or Date of Delivery, as the case may be) to the International
Managers and the loss, liability, claim, damage or expense of such International
Manager resulted from an untrue statement or omission of a material fact
contained in or omitted from the preliminary prospectus which was corrected in
the International Prospectus as, if applicable, amended or supplemented prior to
the Closing Time or Date of Delivery, as the case may be, and such International
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person and (ii) such failure to give or send such
International Prospectus by the Closing Time or Date of Delivery, as the case
may be, to the party or parties asserting such loss, liability, claim, damage or
expense would have cured the defect giving rise to such loss, liability, claim,
damage or expense; provided, further, that each Selling Shareholder's aggregate
liability under this Section 6(a) shall be limited to an amount equal to the
gross proceeds (after deducting the underwriting discount, but before deducting
expenses) received by such Selling Shareholder from the sale of the
International Securities and the U.S. Securities pursuant to the Purchase
Agreements.
(b) Indemnification of Company, Directors and Officers and
Selling Shareholders. Each International Manager severally agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if
<PAGE> 37
-32-
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, each Selling Shareholder and each person, if any,
who controls any Selling Shareholder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto), or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager through Merrill Lynch expressly for
use in the Registration Statement (or any amendment or supplement thereto) or
such preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) above, counsel to the indemnified parties shall be selected by
Merrill Lynch, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement,
<PAGE> 38
-33-
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement Without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the International
Managers on the other hand from the offering of the Securities pursuant to this
International Purchase Agreement or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Selling Shareholders on the one hand
and of the International Managers on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the International Managers on the other hand in
connection with the offering of the International Securities pursuant to this
International Pur-
<PAGE> 39
-34-
chase Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the International Securities pursuant to
this International Purchase Agreement (before deducting expenses) received by
the Company and the Selling Shareholders and the total underwriting discount
received by the International Managers.
The relative fault of the Company and the Selling Shareholders
and the International Managers shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders or by the International
Managers and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the International
Managers agree that it would not be just and equitable if contribution pursuant
to this Section 7 were determined by pro rata allocation (even if the
International Managers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no
Selling Shareholder shall be required to contribute any amount in excess of the
amount by which the gross proceeds (after deducting the underwriting discount,
but before deducting the expenses) received by such Selling Shareholder from the
International Securities and the U.S. Securities purchased from such Selling
Shareholder and (ii) no International Manager shall be required to contribute
any amount in excess of the amount by which the total price at which the
International Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such International
Manager has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
<PAGE> 40
-35-
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an International Manager within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
such International Manager, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who
controls the Company or any the Selling Shareholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company or such Selling Shareholder, as the case
may be. The International Managers' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial
International Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this International Purchase Agreement or in certificates of officers of the
Company or any Selling Shareholder submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company or the Selling Shareholders, and shall survive delivery of
the Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The International Managers may
terminate this International Purchase Agreement or, with respect to any Date of
Delivery which occurs after the Closing Time, the obligation of the
International Managers to purchase and the Selling Shareholders to sell the
International Option Securities to be purchased and sold on such Date of
Delivery, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time or any such Date of Delivery (i) if there has been,
since the time of execution of this International Purchase Agreement or since
the respective dates as of which information is given in the International
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business, or (ii) if
there has occurred
<PAGE> 41
-36-
any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the International Managers, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
any securities of the Company has been suspended or materially limited by the
Commission, or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this International Purchase Agreement is
terminated pursuant to this Section, such termination shall be without liability
of any party to any other party except as provided in Section 4 hereof, and
provided further that Sections 1, 6, 7 and 8 shall survive such termination and
remain in full force and effect.
SECTION 10. Default by One or More of the International
Managers. If one or more of the International Managers shall fail at Closing
Time or a Date of Delivery to purchase the Securities which it or they are
obligated to purchase under this International Purchase Agreement (the
"Defaulted Securities"), the International Managers shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
International Managers, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the International Managers shall
not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of International Securities to be purchased on such date,
each of the non-defaulting International Managers shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations
<PAGE> 42
-37-
hereunder bear to the underwriting obligations of all non-defaulting
International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of International Securities to be purchased on such date, this
International Purchase Agreement or, with respect to any Date of
Delivery which occurs after the Closing Time, the obligation of the
International Managers to purchase and of the Selling Shareholders to
sell the International Option Securities to be purchased and sold on
such Date of Delivery shall terminate without liability on the part of
any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any
defaulting International Manager from liability in respect of its default.
In the event of any such default which does not result in a
termination of this International Purchase Agreement or, in the case of a Date
of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the International Managers to purchase and the
Selling Shareholders to sell the relevant International Option Securities, as
the case may be, either (i) the International Managers or (ii) the Company and
any Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"International Manager" includes any person substituted for an International
Manager under this Section 10.
SECTION 11. Default by One or More of the Selling
Shareholders. If one or more of the Selling Shareholders shall fail at Closing
Time or at a Date of Delivery to sell and deliver the number of Securities which
such Selling Shareholder or Selling Shareholders are obligated to sell
hereunder, and the remaining Selling Shareholders do not exercise the right
hereby granted to increase, pro rata or otherwise, the number of Securities to
be sold by them hereunder to the total number to be sold by all Selling
Shareholders as set forth in Schedule B hereto, then the International Managers
may, by notice to the Company and the non-defaulting Selling Shareholders,
either (a) terminate this International Purchase Agreement or, with respect to
any Date of Delivery which occurs after the Closing Time, terminate the
obligation of the International Managers to
<PAGE> 43
-38-
purchase and the Selling Shareholders to sell the International Option
Securities to be purchased and sold on such Date of Delivery, without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to
purchase the Securities which the non-defaulting Selling Shareholders and the
Company have agreed to sell hereunder. No action taken pursuant to this Section
11 shall relieve any Selling Shareholder so defaulting from liability, if any,
in respect of such default.
In the event of a default by any Selling Shareholder as
referred to in this Section 11, each of the International Managers, the Company
and the non-defaulting Selling Shareholders shall have the right to postpone
Closing Time or the Date of Delivery for a period not exceeding seven days in
order to effect any required change in the Registration Statement or
Prospectuses or in any other documents or arrangements.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the International Managers c/o
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated at North
Tower, World Financial Center, New York, New York 10281-1201, attention of Alan
Blackburn; notices to the Company shall be directed to it at 300 First Stamford
Place, P.O. Box 120014, Stamford, CT 06912, attention of James W. Langham, Esq.;
and notices to the Selling Shareholders shall be directed to Metropolitan Life
Insurance Company, 334 Madison Avenue, Convert Station, NJ 07961-0633, attention
of Charles E. Symington.
SECTION 13. Parties. This International Purchase Agreement
shall each inure to the benefit of and be binding upon the International
Managers, the Company and the Selling Shareholders and their respective
successors. Nothing expressed or mentioned in this International Purchase
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this International Purchase Agreement or any provision herein
contained. This International Purchase Agreement and all conditions and
provisions hereof are intended to be for
<PAGE> 44
-39-
the sole and exclusive benefit of the International Managers, the Company and
the Selling Shareholders and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any International Manager shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
<PAGE> 45
-40-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the International Managers, the Company and the Selling
Shareholders in accordance with its terms.
Very truly yours,
LONE STAR INDUSTRIES, INC.
By:
Name:
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By:
Name:
Title:
METROPOLITAN LIFE INSURANCE AND
ANNUITY COMPANY
By:
Name:
Title:
<PAGE> 46
-41-
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH INTERNATIONAL
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
WARBURG DILLON READ
SCOTT & STRINGFELLOW, INC.
By: MERRILL LYNCH INTERNATIONAL
By: ___________________________________
Name:
Title:
<PAGE> 47
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial International
Securities
----------
<S> <C>
Name of International Managers
- ------------------------------
Merrill Lynch International.....................................................
Credit Suisse First Boston (Europe) Limited.................................
Warburg Dillon Read.........................................................
Scott & Stringfellow, Inc...................................................
Total....................................................................... -------
300,000
=======
</TABLE>
Schedule A-1
<PAGE> 48
SCHEDULE B
<TABLE>
<CAPTION>
Maximum
Number of Number of
Initial International International Option
Securities Securities
to be Sold to be Sold (1)
---------- ------------
<S> <C> <C>
Metropolitan Life Insurance
Company.................................................
Metropolitan Insurance and
Annuity Company......................................... --------- -------
1,200,000 180,000
========= =======
</TABLE>
- ------------------
(1) If a Date of Delivery with respect to the International Option Securities
is or could be on or after December 15, 1998, the Maximum Number of
International Option Securities to be sold and which have not previously
been delivered will be doubled and the purchase price per share set forth
in Schedule C hereto shall be reduced by 50%.
Schedule B-1
<PAGE> 49
SCHEDULE C
LONE STAR INDUSTRIES, INC.
Shares of Common Stock
(Par Value $1.00 Per Share)
1. The initial public offering price per share for the
International Securities, determined as provided in said Section 2,
shall be $[ ].
2. The purchase price per share for the International
Securities to be paid by the several International Underwriters shall
be $[ ], being an amount equal to the initial public offering price set
forth above less $[ ] per share; provided that the purchase price per
share for any International Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall
be reduced by an amount per share equal to any dividends or
distributions on the Common Stock payable prior to the applicable Date
of Delivery to holders of record on a record date which is after the
Closing Time. The purchase price per share for the International Option
Securities shall also be subject to adjustment as set forth in Schedule
B hereto.
Schedule C-1
