<PAGE> 1
EXHIBIT 1.1
4,000,000 SHARES
ATMEL CORPORATION
COMMON STOCK, $0.001 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
[September __], 2000
1
<PAGE> 2
[September __], 2000
Morgan Stanley & Co. Incorporated
Oddo-Pinatton
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
Atmel Corporation is a Delaware corporation (the "COMPANY"), with an issued
share capital of [$__________] represented by [460,945,184] shares of common
stock, par value $0.001 per share. Under the Certificate of Incorporation of the
Company, the Board of Directors has full power and authority to issue up to
500,000,000 shares of common stock and is not required to offer such shares
first to existing shareholders of the Company. In accordance with such
authority, the Board resolved on [[__~__], 2000] to increase the share capital
of the Company and to issue 4,000,000 additional shares of common stock (the
"FIRM SHARES"). The Company has appointed Morgan Stanley Dean Witter (France),
SA and Oddo-Pinatton as sponsors (etablissements introducteurs) for the listing
of the Firm Shares and the Option Shares (as defined below) on the Premier
marche (Compartiment des valeurs etrangeres) of the Paris Bourse. In connection
with such listing, up to 800,000 shares are offered in an open-price public
offering (offre a prix ouvert, or "OPO") (the "OPO SHARES") in France (the
"FRENCH PUBLIC OFFERING"). [In accordance with French law, a notice was
published in the Bulletin des annonces legales et obligatories on [ ] with
respect to the French Public Offering and the listing of the Shares on the
Premier marche, Compartiment des valeurs etrangeres of the Paris Bourse. The
French Public Offering was open for three Paris stock exchange days beginning on
[_____________], during which prospective investors in French could submit
binding orders to purchase Shares.] The Company is also offering to issue and
sell 3,200,000 Shares (the "PLACEMENT SHARES") in a placement (the "PLACEMENT")
to institutional investors in France and outside France through the several
Underwriters named in Schedule I hereto (the "UNDERWRITERS"). The Company has
also granted the Underwriters an option to purchase an additional 600,000 shares
(the "OPTION SHARES") from the Company solely to cover over-allotments in the
Placement. The Firm Shares and the Option Shares are hereafter together referred
to as the "SHARES". The Underwriters have the right to subscribe for Shares in
the French Public Offering and offer such Shares for resale outside the United
States in the Placement. The shares of common stock of the Company to be
outstanding after giving effect to the French Public Offering and the Placement
contemplated hereby are hereinafter referred to as the "COMMON STOCK".
2
<PAGE> 3
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. The registration
statement as amended at the time it becomes effective, including the information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION
STATEMENT". The Prospectus in the form first used to confirm sales of Shares in
the United States is hereinafter referred to as the "US PROSPECTUS" (including,
in the case of all references to the Registration Statement and the US
Prospectus, documents incorporated therein by reference). If the Company has
filed an abbreviated registration statement to register additional shares of
Common Stock pursuant to Rule 462(b) under the Securities Act (the "RULE 462
REGISTRATION STATEMENT"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
The Company has filed with the Commission des Operations de Bourse (the "COB") a
preliminary prospectus in French (the "PRELIMINARY FRENCH PROSPECTUS") and a
final prospectus in French (the "FRENCH PROSPECTUS") for the listing and the
sale of the Shares issued and to be issued outside the United States following
the French Public Offering and the Placement. The Preliminary French Prospectus
and the French Prospectus are together referred to herein as the "FRENCH
PROSPECTUSES."
The Registration Statement, the US Prospectus and the French Prospectuses are
together referred to herein as the PROSPECTUSES.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the Company's
knowledge, threatened by the Commission.
(b) (i) Each document filed or to be filed with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), and incorporated by reference in the Registration Statement and the US
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) the Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
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) the Registration Statement and the US Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, and (iv) the US Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement or the US
Prospectus based upon
3
<PAGE> 4
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectuses and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectuses and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued shares of
capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (other than
director or qualifying shares for foreign subsidiaries and fifty percent of the
issued and outstanding shares of capital stock of Temic Semiconductor GmbH,
which are owned by a subsidiary of Vishay Intertechnology, Inc.) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims. Other than Atmel ES2, S.A., Atmel ES2, B.V.
and Temic Semiconductor GmbH, the Company has no subsidiaries that are
"significant subsidiaries" as defined in Rule 1-02(w) of Regulation S-X of the
Securities Act (a "SIGNIFICANT SUBSIDIARY").
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained in
the Prospectuses.
(g) The shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued, fully paid and
non-assessable. There are no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or ownership
interests in the Company outstanding, except as described in the Prospectuses or
issued under the benefit plans described in the Prospectuses;
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights.
4
<PAGE> 5
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except such
as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares and except such consents,
approvals, authorizations, orders or qualifications which, if not obtained,
would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectuses (exclusive of any amendments or supplements thereto subsequent to
the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to
the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Prospectuses and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Prospectuses or to be
filed as exhibits to the Registration Statement that are not described or filed
as required.
(l) Each preliminary prospectus 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 Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, except to the extent such failure to
comply was corrected by a subsequent filing.
(m) The Company is not, and after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as described
in the Prospectuses will not be, required to register as an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended.
(n) The Company has prepared the Preliminary French Prospectus,
dated [__*__], 2000 (including any and all exhibits thereto and any information
incorporated by reference therein), and the French Prospectus, dated [__*__],
2000 (including any and all exhibits thereto and any information incorporated by
reference therein), to be used in connection with the French Public Offering;
the COB issued visa No. [__*__] on [__*__], 2000 in respect of the Preliminary
French Prospectus and visa No. [__*__] on [__*__], 2000 in respect of the French
Prospectus; such documents, together with all other documents required for the
French Public Offering and the listing of the Shares on the Premier marche,
Compartiment des valeurs etrangeres of the Paris Bourse (the "PREMIER MARCHE"),
have been or will be filed with the COB
5
<PAGE> 6
and ParisBourseSBF S.A. ("PARISBOURSE") on or prior to the Closing Date in
accordance with all applicable regulations; the Shares have been approved for
listing on the Premier Marche pursuant to a notice (avis d'admission) of
ParisBourse dated [__*__], 2000, which notice has not been revoked or withdrawn
and is in full force and effect, and no opposition to listing has been notified
by the COB;
(o) each of the Preliminary French Prospectus and the French
Prospectus conforms in all material respects to all requirements of applicable
French laws and regulations, including regulations of the COB and ParisBourse;
neither the Preliminary French Prospectus nor the French Prospectus nor any
amendments or supplements thereto, at the time the Preliminary French Prospectus
and the French Prospectus or any such amendments or supplements were issued, and
on the Closing Date, 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; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance on and in
conformity with the information relating to any Underwriter furnished in writing
to the Company by such Underwriter exclusively for use therein.
(p) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with the remedy
of any violation of Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(r) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to include such securities with the Shares registered pursuant to the
Registration Statement, which rights have not been waived.
(s) The Common Stock has been approved for listing on the Nasdaq
National Market.
(t) Except in each case as described in the Prospectuses,
subsequent to the respective dates as of which information is given in the
Prospectuses, (i) neither the Company
6
<PAGE> 7
nor any of its subsidiaries has incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction, in such case,
not in the ordinary course of business; (ii) other than repurchases of shares
pursuant to the Company's employee benefit plans, the Company has not purchased
any of its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than ordinary
and customary dividends; and (iii) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company or any of its
subsidiaries.
(u) The Company and each of its subsidiaries possess all
consents, approvals, orders, certificates, authorizations and permits issued by,
and have made all declarations and filings with, all appropriate federal, state
or foreign governmental or self-regulatory authorities and all courts and other
tribunals necessary to conduct their respective businesses and to own, lease,
license and use its properties in the manner described in the Prospectuses,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
and neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such consent,
approval, order, certificate, authorization or permit that, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or finding, or
failure to obtain or file, would have a material adverse effect on the Company
and its subsidiaries, taken as a whole, except as described in the Prospectuses.
(v) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded assets are compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences.
(w) To the Company's knowledge, PricewaterhouseCoopers LLP are
independent public accountants with respect to the Company and its subsidiaries
as required by the Securities Act.
(x) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; the Company and its subsidiaries have not been refused any insurance
coverage sought or applied for; and neither the Company nor any of its
subsidiaries has 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 have a material adverse effect on the Company
and its subsidiaries, taken as a whole, in each case, except as described in the
Prospectuses.
(y) The Company and its subsidiaries own or possess adequate
licenses or other rights to use all material patents, copyrights, trademarks,
service marks, trade names,
7
<PAGE> 8
technology, know-how, trademarks, service marks and trade names (the
"INTELLECTUAL PROPERTY") currently employed by them in the conduct of their
respective businesses in the manner described in the Prospectuses or could
obtain such licenses or rights on terms that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole and, except as
disclosed in the Prospectuses, neither of the Company nor any of its
subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property which could
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(z) the audited consolidated financial statements and notes
thereto incorporated by reference in the Registration Statement and the U.S.
Prospectus present fairly the financial position of the Company as of the dates
indicated, and the results of operations, shareholders' equity and cash flows of
the Company for the periods specified; such financial statements have been
prepared in accordance with generally accepted accounting principles in the
United States ("U.S. GAAP"), applied on a consistent basis throughout the
periods involved (except as specified therein); the supporting schedules, if
any, incorporated by reference in the Registration Statement and the U.S.
Prospectus present fairly in accordance with U.S. GAAP the information required
to be stated therein; the selected consolidated financial data and summary
consolidated financial data of the Company included in the Registration
Statement and the US Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements incorporated by reference in the Registration Statement and the US
Prospectus;
(aa) the audited consolidated financial statements and notes
thereto included in the French Prospectus, present fairly the financial position
of the Company as of the dates indicated, and the results of options,
shareholders' equity and cash flows of the Company for the periods specified;
such financial statements have been prepared in accordance with the requirements
of all applicable French laws and generally accepted accounting principles in
France ("GAAP"), applied on a consistent basis throughout the periods involved
(except as specified therein); the "Presentation des Comptes" of the Company
included in the French Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited financial
statements included in the French Prospectus.
(bb) neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(cc) the Company meets the requirements for use of Form S-3 under
the Securities Act and filed with the Commission a registration statement on
Form S-3 (No. _________);
2. Agreements to Issue and Subscribe. The Company hereby agrees to issue
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to subscribe for the
respective numbers of Placement Shares set forth in Schedule II hereto
8
<PAGE> 9
opposite its names at a purchase price of [__*__] per Placement Share (the
"PURCHASE PRICE") on the Closing Date (as defined in Section 4 below).
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Option Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to 600,000 Option
Shares at the Purchase Price. If you, on behalf of the Underwriters, elect to
exercise such option, you shall so notify the Company in writing not later than
30 days after the date of this Agreement, which notice shall specify the number
of Option Shares to be purchased by the Underwriters and the date on which such
shares are to be purchased. Such date may be the same as the Closing Date (as
defined below) but not earlier than the Closing Date nor later than ten business
days after the date of such notice. Option Shares may be purchased as provided
in Section 4 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Option Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase the
number of Option Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number
of Option Shares to be purchased as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
The Company hereby agrees to issue to the Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to subscribe for those of the OPO Shares that have not been
subscribed for by the investors by the end of the French Public Offering, up to
the maximum of OPO Shares set forth opposite its name in Schedule II hereto, at
the Purchase Price, on the Closing Date.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectuses, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the issuance by the Company of the Placement Shares to the Underwriters
hereunder, (B) the issuance by the Company of the OPO Shares in the French
Public Offering mentioned hereunder, (C) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof which is described in the Prospectuses
or (D) the issuance of shares of Common Stock or options to purchase Common
Stock pursuant to any employee benefit plan that is in existence on the date
hereof and consistent with past practices.
9
<PAGE> 10
3. Terms of Public Offering. The Board of Directors resolved on [__*__]
2000 that 4,000,000 Shares may be issued and subscribed for subject to the terms
of this Agreement, including 800,000 OPO Shares, (including any Shares initially
offered in the Placement that are being offered in the French Public Offering
following a reduction in the aggregate number of Shares offered in the
Placement) and 3,200,000 Placement Shares (excluding any Shares initially
offered in the Placement that are being offered in the French Public Offering
following a reduction in the aggregate number of Shares initially offered in the
Placement).
[On [__*__] 2000, the number of Placement Shares was reduced by [__*__]
Shares in order to increase the number of OPO Shares offered for sale in the
French Public Offering.](1)
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable. [The Company is further advised by you that the Shares
are to be offered to the public initially at $_____________ a share (the "PUBLIC
OFFERING PRICE") and to certain dealers selected by you at a price that
represents a concession not in excess of $______ a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $_____ a share, to any Underwriter or to
certain other dealers.]
4. Payment and Delivery. The closing date of the sale of the Placement
Shares and the OPO Shares if any, to the Underwriters (the "CLOSING DATE") will
be [__*__], 2000 at [__*__] ([Paris/New York time]) (the "ORIGINAL CLOSING
DATE"), or such later date as shall be designated in writing by you provided
that such other date shall not be in any event later than [__*__], 2000, and
provided further, that the closing date of the French Public Offering shall not
be later than the Original Closing Date without the prior approval of
ParisBourse.
Payment for the Firm Shares shall be made to the Company by the
Underwriters (i) with respect to Shares being purchased outside of the United
States, in Euros immediately available and (ii) with respect to Shares being
purchased in the United States, in US federal funds immediately available,
against delivery of _____ Firm Shares for the respective accounts of the several
Underwriters' on the Closing Date as defined above. Payment for any Option
Shares shall be made to the Company in the same manner against delivery of such
Option Shares for the respective accounts of the several Underwriters at 10:00
a.m., New York City time or Paris time, as the case may be, on the date
specified in the notice described in Section 2 or at such other time on the same
or on such other date, in any event not later than _______, 2000 as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE".
Certificates for the Shares shall be in definitive form and registered
in such names and in such denominations as you shall request in writing not
later than one full business day prior to the Closing Date or the Option Closing
Date, as the case may be. The certificates evidencing the Firm Shares and Option
Shares shall be delivered to you on the Closing Date or the Option Closing Date,
as the case may be, for the respective accounts of the several Underwriters,
with
(1) Insert if appropriate.
10
<PAGE> 11
any transfer taxes payable in connection with the transfer of the Shares to the
Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that no later than 5:00 P.M. New York City time on the
date hereof (i) the Registration Statement shall have become effective; (ii) the
French Prospectus shall have received the visa from the COB; and (iii) notice of
the results of the French Public Offering shall have been published by
ParisBourse.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectuses (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectuses.
(iii) The French Prospectus shall have received the visa
from the COB; notice of the results of the French Public Offering (avis
de resultat) shall have been published by ParisBourse.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in Section 5(a) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date. The officer
signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Wilson Sonsini Goodrich & Rosati and an opinion from Cleary Gottlieb
Steen & Hamilton, outside counsel for the Company, dated the Closing Date, to
the effect that:
11
<PAGE> 12
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectuses and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) the authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectuses;
(iii) the shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly issued,
fully paid and non-assessable;
(iv) the Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or, to the knowledge of
such counsel, similar rights;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement do
not and will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to such
counsel's knowledge, any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Significant Subsidiary, and
no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares by the Underwriters and
except where such consent, authorization, approval, order or
qualification, which, if not obtained would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(vii) the statements (A) in the US Prospectus under the
section "Underwriters" to the extent of the description of this
Agreement, (B) describing the Common Stock and the Company's Preferred
Shares Rights Agreement incorporated in the US Prospectus by reference
to Form 8-A filed with the Commission pursuant to the Exchange Act, and
(C) incorporated in the Registration Statement in Item 15, in each case
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the
information required under the
12
<PAGE> 13
Securities Act and the rules and regulations thereunder with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(viii) the statements in the French Prospectus in chapters
II and III in so far as such statements constitute summaries of the
legal matters documents or proceedings referred to therein, fairly
summarize the matters referred to therein;
(ix) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its Significant Subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required under the Securities Act and the rules and regulations
thereunder to be described in the Registration Statement or the US
Prospectus or that are required under applicable French Laws and
regulations, including regulations of the COB and Paris Bourse, to be
described in the French Prospectus, and are not so described, and, to
such counsel's knowledge, there are no statutes, regulations, contracts
or other documents that are required under the Securities Act and the
rules and regulations thereunder to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(x) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectuses, will not be required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xi) such counsel (A) is of the opinion that each document
of the Company filed with the Commission pursuant to the Exchange Act
and incorporated by reference in the Registration Statement and the US
Prospectus (except for financial statements and schedules and other
financial and statistical data included therein as to which such counsel
need not express any opinion) complied as to form when so filed in all
material respects with the Exchange Act, and the applicable rules and
regulations of the Commission thereunder, (B) is of the opinion that the
Registration Statement and the US Prospectus (except for financial
statements and schedules and other financial and statistical data
included therein as to which such counsel need not express any opinion)
comply as to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder, (C)
has no reason to believe that (except for financial statements and
schedules and other financial and statistical data as to which such
counsel need not express any belief) the Registration Statement (and the
US Prospectus included therein) at the time the Registration Statement
became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (D) has no
reason to believe that (except for financial statements and schedules
and other financial and statistical data as to which such counsel need
not express any belief) the US Prospectus contains any untrue statement
of a material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
13
<PAGE> 14
(d) The Underwriters shall have received on the Closing Date an
opinion of counsel for each of the Significant Subsidiaries reasonably
acceptable to the Underwriters, dated the Closing Date to the effect that:
(i) Such Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectuses and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and
(ii) all of the issued shares of capital stock of such
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims.
(e) The Underwriters shall have received on the Closing Date an
opinion of Gray Cary Ware & Freidenrich LLP, U.S. counsel for the Underwriters,
dated the Closing Date covering the matters referred to in Section 5(c)(iv),
5(c)(v), 5(c)(vii) but only as to the statements in the Prospectus under
"Underwriters" and clauses (B), (C) and (D) of 5(c)(xi) above.
(f) The Underwriters shall have received on the Closing Date an
opinion of Stibbe, Simont, Monahan, Duhot & Giroux, French counsel for the
Underwriters, dated the Closing Date, substantially in the form of the draft
opinion attached as Schedule III hereto, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
provide such opinion.
(g) With respect to Section 5(c)(xi) above, Wilson Sonsini
Goodrich & Rosati and Cleary Gottlieb Steen & Hamilton may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement, the US Prospectus and the French Prospectus and any
amendments or supplements thereto and documents incorporated by reference and
review and discussion of the contents thereof, but are without independent check
or verification, except as specified. With respect to clauses (B) (C) and (D) of
5(c)(xi) above, Gray Cary Ware & Freidenrich LLP may state that their opinion
and belief are based upon their participation in the preparation of the
Registration Statement and the US Prospectus and any amendments or supplements
thereto (other than documents incorporated by reference) and review and
discussion of the contents thereof (including documents incorporated by
reference), but are without independent check or verification, except as
specified.
(h) The opinions of Wilson Sonsini Goodrich & Rosati and Cleary
Gottlieb Steen & Hamilton described in Section 5(c) above and the opinion of
counsel for each Significant Subsidiary described in Section 5(e) above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
14
<PAGE> 15
(i) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters, from
PricewaterhouseCoopers LLP, independent accountants, 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, or incorporated by reference into, the US Prospectus;
provided that the letter delivered on the Closing Date shall use a "cut-off
date" not earlier than the date hereof.
The several obligations of the Underwriters to purchase Option Shares
hereunder are subject to the delivery to you on the Option Closing Date of such
documents as you may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Option Shares and other
matters related to the issuance of the Option Shares.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish you, without charge, signed copies of the
Registration Statement and the US Prospectus (including exhibits thereto and
documents incorporated by reference therein) and for delivery to each other
Underwriter a copy of the Registration Statement (without exhibits thereto but
including documents incorporated by reference therein) and to furnish to you in
[Paris and New York], without charge, prior to 10:00 a.m. [New York City Time]
on the business day next succeeding the date of this Agreement and during the
period mentioned in Section 6(c) below, as many copies of the French Prospectus
and the US Prospectus, any documents incorporated by reference therein, and any
supplements and amendments thereto or to the Registration Statement and the
Prospectuses as you may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all documents
subsequently filed with the Commission pursuant to the Exchange Act that are
deemed to be incorporated by reference in the Registration Statement.
(b) Before amending or supplementing the Registration Statement
or the US Prospectus or French Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters the US
Prospectus is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the US Prospectus in order to make
the statements therein, in the light of the circumstances when the US Prospectus
is delivered to a purchaser, not misleading, or if, in the reasonable opinion of
counsel for the Underwriters, it is necessary to amend or supplement the US
Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to any
15
<PAGE> 16
other dealers upon request, either amendments or supplements to the US
Prospectus so that the statements in the US Prospectus as so amended or
supplemented will not, in the light of the circumstances when the US Prospectus
is delivered to a purchaser, be misleading or so that the US Prospectus, as
amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders
and to you, as soon as practicable, an earnings statement covering the
twelve-month period ending [September 30, 2001] that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel and the Company's accountants in connection with the registration and
delivery of the Shares under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Prospectuses, any
preliminary prospectuses and amendments and supplements to any of the foregoing,
including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or other
taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or
Legal Investment memorandum in connection with the offer and sale of the Shares
under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 6(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or Legal Investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all costs and expenses incident to listing the
Shares on the Nasdaq National Market, (vi) all costs and expenses incident to
listing the Shares on the Premier marche, Compartiment des valeurs etrangeres)
of the Paris Bourse, (vii) the cost of printing certificates representing the
Shares, (viii) the costs and charges of any transfer agent, registrar or
depositary, (ix) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (ix) all
other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It
is understood, however, that except as provided in this Section, Section 7
entitled "Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes
16
<PAGE> 17
payable on resale of any of the Shares by them and any advertising expenses
connected with any offers they may make.
(g) To use its best efforts to obtain the listing of the Shares
on the Premier Marche on or prior to the Closing Date and to maintain such
listing so long as any Shares remain outstanding.
(h) To use its best efforts to cause the Shares to be admitted to
clearance through Sicovam S.A. ("SICOVAM") as central depositary; and
(i) Not to take, directly or indirectly, any action designed to
or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
7. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Prospectuses (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter, or any person controlling
such Underwriter, from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares, if a copy of the US Prospectus or the
French Prospectus as the case may be, (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the US Prospectus or the French Prospectus,
as the case may be, (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for
17
<PAGE> 18
use in the Registration Statement, any preliminary prospectus, the US
Prospectus, the French Prospectus, or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 7 (a) or 7 (b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Section
7(a) or 7 (b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one
18
<PAGE> 19
hand and the Underwriters on the other hand from the offering of the Shares or
(ii) if the allocation provided by clause 7 (d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7 (d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 7(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
19
<PAGE> 20
8. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange, the Chicago Board of Trade or the Premier marche (Reglement
mensuel, Compartiment des valeurs etrangeres) of the Paris Bourse, (ii) trading
of any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York or France shall have been declared by any Federal or New
York State or French authorities or (iv) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity
or crisis that, in your judgment, is material and adverse and (b) in the case of
any of the events specified in clauses 8 (a)(i) through 8 (a)(iv), such event,
singly or together with any other such event, makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectuses.
9. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
(a) If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Shares that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of the Shares to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the number of Shares set forth opposite their respective names
in Schedules I and II bear to the aggregate number of Shares set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as you may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Shares and the aggregate number of
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased, and arrangements satisfactory to you
and the Company for the purchase of such Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the US Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
(b) If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to
20
<PAGE> 21
perform its obligations under this Agreement, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
ATMEL CORPORATION
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof
Acting severally on behalf of
themselves
Morgan Stanley & Co. Incorporated Oddo-Pinatton
By: By:
--------------------------- --------------------------------------
Name: Name:
Title: Title:
21
<PAGE> 22
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS PLACEMENT SHARES
[[__*__]
<S> <C>
Morgan Stanley & Co. Incorporated
Oddo-Pinatton [[__*__]
Total
=========
</TABLE>
<PAGE> 23
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS PREFERRED OPO
<S> <C>
[__*__]
Morgan Stanley & Co. Incorporated
Oddo-Pinatton [__*__]
Total [__*__]
========
</TABLE>
<PAGE> 24
SCHEDULE III
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Paris, [__*__], 2000
Re: Atmel Corporation
Initial primary offering and listing on the premier marche of
PARISBOURSE SBF SA
Dear Sirs,
We have acted as legal advisors to Morgan Stanley & Co. Incorporated (the
"UNDERWRITER") in relation to French law in connection with the issue of up to
[2,000,000] shares (the "Shares") of Atmel Corporation (the "COMPANY") and the
offering to the public in France of the Shares.
In connection with the issue and the sale of the Shares, We have examined the
following documents:
1. the Prospectus Preliminaire which has been approved by the Commission des
Operations de Bourse ( the "COB") on [__*__] 2000 under visa n degrees [__*__];
2. the Prospectus Definitif which has been approved by the COB on [__*__] 2000
under visa n degrees [__*__];
3. the notice published in the Bulletin des annonces legales et obligatories;
4. on all such other documents, laws, decrees and published administrative
regulations as we have deemed necessary or appropriate for the purposes of the
opinions expressed herein.
In considering the above documents, we have assumed (a) the genuineness of all
signatures thereon or on the originals thereof and the conformity to original
documents of all copies submitted to us as copies, facsimile copies or certified
copies; (b) that the Company has full power, authority and legal rights to issue
the Shares to incur and perform its obligations thereunder; (c) that the Company
has duly authorised the issue, creation and offering of the Shares in accordance
with the description included in the Prospectus Preliminaire and in the
Prospectus Definitif; and (d) that the offering and selling restrictions
contained in Prospectus Preliminaire and in the Prospectus Definitif have been
and will be complied with in respect of all the Shares.
<PAGE> 25
As we are members of the French Bar and do not represent ourselves to be
familiar with the laws of the State of Delaware or the laws of any jurisdiction
other than France, we do not pass upon and express no opinion with respect to
the matters governed by or to be determined on the basis of any such laws. We
are rendering the opinions expressed below solely on the basis of and upon
matters of French law and regulations.
On the basis of the foregoing and subject to the qualifications set out below,
and subject further to any mater not disclosed to us by the parties concerned,
and having regard to such legal considerations as we deem relevant, we are of
the opinion that under the laws of the Republic of France as in effect on the
date hereof:
(i) the offering in France of the Shares in accordance with the terms of the
Prospectus Preliminaire and of the Prospectus Definitif is not contrary to
French law;
(ii) there are no consents, authorisations, decisions or other orders of any
regulatory authorities in the Republic of France, other than those which have
been obtained, required in connection with the issue of the Shares by the
Company or the performance by the Company of its obligations thereunder;
(iii) the statements in the Prospectus Preliminaire and in the Prospectus
Definitif under the captions ["2.2.1 Renseignements relatifs a l'emission
d'Actions"] and ["2.2.3. Regime fiscal des Actions"] present fairly the
information required by the COB and as regards the matter referred to caption
[2.2.3.] fairly summarize, in all material respects, the matters referred to
therein;
(iv) as of [__*__] 2000 and [__*__] 2000, respectively, the Prospectus
Preliminaire and the Prospectus Definitif complied with applicable French legal
requirements.
The qualifications to which this opinion is subject are as follows:
It should be understood that we have not been responsible for investigating or
verifying the accuracy of the facts, or the reasonableness of any statements of
opinion, contained in the Prospectus Preliminaire and in the Prospectus
Definitif or whether any material fact had been omitted from the Prospectus
Preliminaire and in the Prospectus Definitif at the date on which the COB
granted its visas to such documents.
This opinion is addressed to, and is for the benefit solely of Morgan Stanley &
Co. Incorporated. Accordingly, it may not be relied upon by any other person or
for any purpose other than in connection with the issue and the sale by the
Company of the Shares and is not to be used, circulated, quoted or referred to
for any other purpose.
Yours faithfully,
[_____*_____]
