<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 27, 1997.
REGISTRATION NO. 333-28685
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
VALASSIS COMMUNICATIONS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
DELAWARE 38-2760940
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
19975 VICTOR PARKWAY
LIVONIA, MICHIGAN 48152
(313) 591-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
BARRY P. HOFFMAN, ESQ.
VICE PRESIDENT, GENERAL COUNSEL & SECRETARY
19975 VICTOR PARKWAY
LIVONIA, MICHIGAN 48152
(313) 591-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C> <C>
JOHN M. ALLEN, JR., ESQ. MARK THOMAN, ESQ. JONATHAN A. SCHAFFZIN, ESQ.
DEBEVOISE & PLIMPTON MCDERMOTT, WILL & EMERY CAHILL GORDON & REINDEL
875 THIRD AVENUE 50 ROCKEFELLER PLAZA 80 PINE STREET
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10020 NEW YORK, NEW YORK 10005
(212) 909-6000 (212) 547-5400 (212) 701-3000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
[ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a)
OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two forms of prospectus: one to be
used in connection with an offering in the United States and Canada (the 'U.S.
Prospectus') and one to be used in a concurrent international offering outside
the United States and Canada (the 'International Prospectus'). The U.S.
Prospectus and the International Prospectus are identical except for the front
and back cover pages, the sections entitled 'Underwriting,' 'Certain United
States Tax Consequences to Non-U.S. Holders' (the section entitled 'Certain
United States Tax Consequences to Non-U.S. Holders' appears only in the
International Prospectus) and 'Available Information' and certain
cross-references relating thereto. The form of U.S. Prospectus is included
herein and is followed by those pages to be used in the International Prospectus
which differ from, or are in addition to, those in the U.S. Prospectus. Each of
the alternate pages for the International Prospectus included herein is labeled
'Alternate Page for International Prospectus.'
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee............................................................................ $124,866
NASD fee.................................................................................... 30,500
Blue Sky fees and expenses.................................................................. 5,000
Printing and engraving expenses............................................................. 140,000
Legal fees and expenses..................................................................... 425,000
Accounting fees and expenses................................................................ 75,000
Transfer agent's fees and expenses.......................................................... 500
Miscellaneous............................................................................... 49,134
--------
Total............................................................................. $850,000
--------
--------
</TABLE>
Approximately $650,000 of the estimated expenses of the Offerings will be
borne by the Selling Stockholder or one of its affiliates (other than the
Company) in accordance with the registration rights agreement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
'Delaware Law') empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of such corporation), by reason of the fact that such person was an officer,
director, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such person acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the corporation's
best interests, and, for criminal proceedings, had no reasonable cause to
believe his conduct was illegal. A Delaware corporation may indemnify officers,
directors, employees or agents in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if such person is adjudged to be liable
to the corporation in the performance of his duty. Where such person is
successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him against the expenses which such
person actually and reasonably incurred.
In accordance with the Delaware Law, the Restated Certificate of
Incorporation of the Company contains a provision to limit the personal
liability of the directors for violations of their fiduciary duty. This
provision eliminates each director's liability to the Company or its respective
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware Law or any amendment thereto or
successor provision thereto, or (iv) for any transaction from which a director
derived an improper personal benefit. The effect of this provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including any such actions
involving gross negligence.
The Company's Restated Certificate of Incorporation and the Amended and
Restated By-Laws provides for indemnification to its directors and such of its
officers, employees and agents as the Board of Directors may determine, from
time to time, to the fullest extent permited by Section 145 of the General
Corporation Law of the State of Delaware.
The Company has obtained directors and officers liability insurance
coverage. The policy insures directors and officers of the Company against loss
arising from claims made against such directors or officers by reason of certain
wrongful acts (as defined), such as errors, misstatements, misleading
statements, acts, omissions, negligence or breaches of duty, but does not insure
such persons against losses arising from claims made against such directors or
officers for the return of certain unauthorized
II-1
<PAGE>
<PAGE>
remunerations, for violations of Section 16(b) of the Securities Exchange Act of
1934, as amended, and for violations of similar laws and certain other matters.
ITEM 16. EXHIBITS.
The File Number of Valassis Communications, Inc., the Registrant (the
'Company'), and for all Exhibits incorporated by reference is 1-10991.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
1.1 -- Form of U.S. Purchase Agreement
-- Form of International Purchase Agreement
3.1 -- Restated Certificate of Incorporation of Valassis Communications, Inc. (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement No. 33-45189)
3.2 -- Amended and Restated By-Laws of Valassis Communications, Inc. (incorporated by reference to Exhibit
3.2 to the Company's Registration Statement No. 33-45189)
5.1 -- Opinion of McDermott, Will & Emery regarding the legality of the securities being registered
10.1 -- Employment Agreement, dated January 20, 1992, among David A. Brandon, Valassis Communications, Inc.
and Valassis Inserts, Inc. (incorporated by reference to Exhibit 10.4 to the Company's Registration
Statement No. 33-45189)
10.1(a) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of David A. Brandon dated
as of June 18, 1993 (incorporated by reference to Exhibit 10.4(a) to the Company's 1993 Form 10-K)
10.1(b) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of David A. Brandon dated
as of July 9, 1995 (incorporated by reference to Exhibit 10.5(b) to the Company's 1995 Form 10-K)
10.1(c) -- Amendment to Employment Agreement of David A. Brandon dated as of December 22, 1995 (incorporated by
reference to Exhibit 10.5(c) to the Company's 1995 Form 10-K)
10.2 -- Employment Agreement, dated January 20, 1992 among Robert L. Recchia, Valassis Communications, Inc.
and Valassis Inserts, Inc., including amendment dated February 11, 1992 (incorporated by reference to
Exhibit 10.5 to the Company's Registration Statement No. 33-45189)
10.2(a) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of Robert Recchia dated
January 2, 1996 (incorporated by reference to Exhibit 10.6(a) to the Company's 1995 Form 10-K)
10.2(b) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of Robert Recchia dated
January 3, 1997 (incorporated by reference to Exhibit 10.6(b) of the Company's 1996 Form 10-K)
10.3 -- Employment Agreement, dated January 20, 1992, among Barry P. Hoffman, Valassis Communications, Inc.
and Valassis Inserts, Inc., including amendment dated February 11, 1992 (incorporated by reference to
Exhibit 10.6 to the Company's Registration Statement No. 33-45189)
10.3(a) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of Barry P. Hoffman dated
December 19, 1995 (incorporated by reference to Exhibit 10.7(a) to the Company's 1995 Form 10-K)
10.4 -- 1992 Long-Term Incentive Plan, as amended (incorporated by reference to Exhibits 4.1 and 4.2 to the
Company's Form S-8 filed on February 17, 1993, No. 33-59670)
10.5 -- Valassis Inserts, Inc. Employees' 401(k) Retirement Savings Plan (incorporated by reference to Exhibit
10.8 to the Company's Registration Statement No. 33-45189)
10.5(a) -- First Amendment of the Valassis Communications, Inc. Employees' 401(k) Retirement Savings Plan
(incorporated by reference to Exhibit 10.9(a) to the Company's 1995 Form 10-K)
10.6 -- Valassis Inserts, Inc. Employees' Profit Sharing Plan (incorporated by reference to Exhibit 10.9 to
the Company's Registration Statement No. 33-45189)
10.6(a) -- First Amendment of the Valassis Communications, Inc. Employees' Profit Sharing Plan (incorporated by
reference to Exhibit 10.10(a) to the Company's 1995 Form 10-K)
10.7 -- Tax Sharing Agreement, dated as of December 31, 1991, among CII Holdings Group, Inc. and each of its
U.S. subsidiaries and Valassis Communications, Inc. (incorporated by reference to Exhibit 10.10 to the
Company's Registration Statement No. 33-45189)
10.8 -- Access Agreement, dated as of December 31, 1991, among Valassis Communications, Inc., Consolidated
Press Holdings Limited and certain of its affiliates (incorporated by reference to Exhibit 10.11 to the
Company's Registration Statement No. 33-45189)
</TABLE>
II-2
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
10.9 -- Consolidated Federal Income Tax Liability Allocation Agreement, dated July 1, 1989, between Valassis
Communications, Inc. and certain subsidiaries (incorporated by reference to Exhibit 10.13 to the
Company's Registration Statement No. 33-45189)
10.10 -- Valassis Inserts, Inc. Plant Employees Pension Plan (incorporated by reference to Exhibit 10.14 to the
Company's Registration Statement No. 33-45189)
10.11 -- Employment Agreement among Richard N. Anderson, Valassis Communications, Inc. and Valassis Inserts,
Inc. (incorporated by reference to Exhibit 10.16 to the Company's Registration No. 33-45189)
10.11(a) -- Amendment to Employment Agreement among Richard N. Anderson, Valassis Communications, Inc. and
Valassis Inserts, Inc. (incorporated by reference to Exhibit 10.15(a) to the Company's Form 10-K for
the transition period of July 1, 1994 to December 31, 1994)
10.11(b) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of Richard N. Anderson
dated December 15, 1995 (incorporated by reference to Exhibit 10.15(b) to the Company's 1995 Form 10-K)
10.12 -- Employment Agreement among Alan F. Schultz, Valassis Communications, Inc. and Valassis Inserts, Inc.
(incorporated by reference to Exhibit 10.17 to the Company's Registration Statement No. 33-45189)
10.12(a) -- Amendment to Employment Agreement among Alan F. Schultz, Valassis Communications, Inc. and Valassis
Inserts, Inc. (incorporated by reference to Exhibit 10.16(a) to the Form 10-K for the transition period
of July 1, 1994 to December 31, 1994)
10.12(b) -- Amendment to Employment Agreement and Non Qualified Stock Option of Alan F. Schultz dated December 19,
1995 (incorporated by reference to Exhibit 10.16(b) to the Company's 1995 Form 10-K)
10.13 -- Valassis Communications, Inc. Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.17
to the 1992 Form 10-K)
10.14 -- Valassis Communications, Inc. Non-Employee Directors' Stock Compensation Plan (incorporated by
reference to Exhibit 4.3 to the Company's Form S-8 filed on February 17, 1993, No. 33-59670)
10.15 -- Senior Executive Annual Bonus Plan (incorporated by reference to Exhibit A to the Company's Proxy
Statement dated October 24, 1994)
10.16 -- Conpress Stock Option Agreement (incorporated by reference to Exhibit 10.20 to the Company's June 30,
1996 Form 10-Q)
10.17 -- Lease for New Headquarters Building (incorporated by reference to Exhibit 10.21 to the Company's June
30, 1996 Form 10-Q)
10.18 -- Form of Registration Rights Agreement between the Company and the Selling Stockholder
10.19 -- Assignment of Stock Option Agreement dated June 5, 1997 among Conpress Cayman, LDC, Consolidated Press
International Limited, Conpress International (Netherlands Antilles) N.V. and Valassis Communications,
Inc.*
10.20 -- Indenture between Valassis Communications, Inc. and The Bank of New York, as trustee, relating to the
9.55% Senior Notes due 2003 (incorporated by reference to Exhibit 4.1 to the Company's Form 10-K for
the transition period July 1, 1994 to December 31, 1994)
10.21 -- Form of Indenture between Valassis Communications, Inc. and The Bank of New York, as trustee, relating
to the 8 3/8% Senior Notes due 1997 (incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement No. 33-45285)
10.21(a) -- First Supplemental Indenture dated as of March 31, 1993 (incorporated by reference to Exhibit 10.1(a)
to the Company's 1993 Form 10-K)
10.22 -- Form of Indenture between Valassis Communications, Inc. and The Bank of New York, as trustee, relating
to the 8 7/8% Senior Notes due 1999 (incorporated by reference to Exhibit 4.3 to the Company's
Registration Statement No. 33-45285)
10.22(a) -- First Supplemental Indenture dated as of March 31, 1993 (incorporated by reference to Exhibit 10.2(a)
to the Company's 1993 Form 10-K)
10.23 -- Form of Indenture between Valassis Communications, Inc. and The Bank of New York, as trustee, relating
to the 9 3/8% Senior Subordinated Notes due 1999 (incorporated by reference to Exhibit 4.2 to the
Company's Registration Statement No. 33-45285)
10.23(a) -- First Supplemental Indenture dated as of March 31, 1993 (incorporated by reference to Exhibit 3 to the
Company's Form 8-K dated as of March 31, 1993)
</TABLE>
II-3
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
10.24 -- Credit Agreement dated as of March 6, 1992 (the 'Credit Facility'), among Valassis Communications,
Inc., the institutions named therein, the institutions named therein as issuing banks, Citicorp USA,
Inc., as agent and administrative agent, and Westpac Banking Corporation, as agent (incorporated by
reference to Exhibit 10.3 to the Company's Registration Statement No. 33-45189)
10.24(a) -- Amended and Restated Amendment No. 1 to the Credit Facility, dated as of March 6, 1992 (incorporated
by reference to Exhibit 10.3(a) to the Company's Registration Statement No. 33-45189)
10.24(b) -- Amendment No. 2 to the Credit Facility, dated as of May 15, 1992 (incorporated by reference to Exhibit
10.3(b) to the Company's 1992 Form 10-K)
10.24(c) -- Amendment No. 3 to the Credit Facility, dated as of June 10, 1992 (incorporated by reference to
Exhibit 10.3(c) to the Company's 1992 Form 10-K)
10.24(d) -- Amendment No. 4 to the Credit Facility, dated as of August 24, 1992 (incorporated by reference to
Exhibit 10.3(d) to the Company's 1992 Form 10-K)
10.24(e) -- Amended and Restated Credit Agreement dated as of March 31, 1993 (incorporated by reference to Exhibit
10.3(e) to the Company's 1993 Form 10-K)
10.24(f) -- Amendment No. 1 to the Amended and Restated Credit Agreement dated as of July 26, 1993 (incorporated
by reference to Exhibit 10.3(f) to the Company's 1993 Form 10-K)
10.24(g) -- Amended and Restated Credit Agreement dated as of December 29, 1993 (incorporated by reference to
Exhibit 10.4(g) to the Company's 1994 Form 10-K)
10.24(h) -- Amendment No. 4 to the Amended and Restated Credit Agreement dated as of December 29, 1993
(incorporated by reference to Exhibit 10.4(h) to the Company's Form 10-K for the transition period July
1, 1994 to December 31, 1994)
10.25(a) -- Revolving Credit Agreement, dated as of August 11, 1995*
10.25(b) -- First Amendment to Revolving Credit Agreement, dated as of December 15, 1996*
10.25(c) -- Amendment No. 2 to Revolving Credit Agreement, dated as of May 20, 1996*
23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of McDermott, Will & Emery, included in the opinion of McDermott, Will & Emery, filed as
Exhibit 5.1
24.1 -- Power of Attorney of Mark C. Davis*
24.2 -- Power of Attorney of other Directors (included on page II-5 of initial filing of Registration
Statement on June 6, 1997)*
27 -- Financial Data Schedule (incorporated by reference to Exhibit 27 to the Company's March 31, 1997 Form
10-Q).
</TABLE>
- ---------------------
*Previously filed
ITEM 17. UNDERTAKINGS.
(A) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(B) The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared effective.
2. For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new
II-4
<PAGE>
<PAGE>
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(C) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Livonia, State of Michigan on June 27,
1997.
VALASSIS COMMUNICATIONS, INC.
By: DAVID A. BRANDON*
____________________________________
DAVID A. BRANDON
CHAIRMAN, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed below by the following
persons in the capacities indicated on June 27, 1997.
<TABLE>
<CAPTION>
NAME TITLE
- ------------------------------------------ ---------------------------------------------------------------------
<C> <S>
BRIAN M. POWERS* Chairman of the Board of Directors
- ------------------------------------------
BRIAN M. POWERS
DAVID A. BRANDON* President and Chief Executive Officer, Director
- ------------------------------------------ (Principal Executive Officer)
DAVID A. BRANDON
GRAHAM A. CUBBIN* Director
- ------------------------------------------
GRAHAM A. CUBBIN
MARK C. DAVIS* Director
- ------------------------------------------
MARK C. DAVIS
JON M. HUNTSMAN, JR.* Director
- ------------------------------------------
JON M. HUNTSMAN, JR.
JAMES PACKER* Director
- ------------------------------------------
JAMES PACKER
ROBERT L. RECCHIA* Chief Financial Officer and Director
- ------------------------------------------ (Principal Financial and Accounting Officer)
ROBERT L. RECCHIA
ALAN F. SCHULTZ* Chief Operating Officer and Director
- ------------------------------------------
ALAN F. SCHULTZ
FAITH WHITTLESEY* Director
- ------------------------------------------
FAITH WHITTLESEY
*By: /S/ BARRY P. HOFFMAN
- ------------------------------------------
BARRY P. HOFFMAN
ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
<PAGE>
EXHIBIT INDEX
The File Number of Valassis Communications, Inc., the Registrant (the
'Company'), and for all Exhibits incorporated by reference is 1-10991.
<TABLE>
<CAPTION>
LOCATION OF EXHIBIT
EXHIBIT IN SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT NUMBERING SYSTEM
- --------- ------------------------------------------------------------------------------------ -------------------
<C> <S> <C>
1.1 -- Form of U.S. Purchase Agreement
-- Form of International Purchase Agreement
3.1 -- Restated Certificate of Incorporation of Valassis Communications, Inc.
(incorporated by reference to Exhibit 3.1 to the Company's Registration Statement
No. 33-45189)
3.2 -- Amended and Restated By-Laws of Valassis Communications, Inc. (incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement No. 33-45189)
5.1 -- Opinion of McDermott, Will & Emery regarding the legality of the securities being
registered
10.1 -- Employment Agreement, dated January 20, 1992, among David A. Brandon, Valassis
Communications, Inc. and Valassis Inserts, Inc. (incorporated by reference to
Exhibit 10.4 to the Company's Registration Statement No. 33-45189)
10.1(a) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of
David A. Brandon dated as of June 18, 1993 (incorporated by reference to Exhibit
10.4(a) to the Company's 1993 Form 10-K)
10.1(b) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of
David A. Brandon dated as of July 9, 1995 (incorporated by reference to Exhibit
10.5(b) to the Company's 1995 Form 10-K)
10.1(c) -- Amendment to Employment Agreement of David A. Brandon dated as of December 22,
1995 (incorporated by reference to Exhibit 10.5(c) to the Company's 1995 Form
10-K)
10.2 -- Employment Agreement, dated January 20, 1992 among Robert L. Recchia, Valassis
Communications, Inc. and Valassis Inserts, Inc., including amendment dated
February 11, 1992 (incorporated by reference to Exhibit 10.5 to the Company's
Registration Statement No. 33-45189)
10.2(a) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of
Robert Recchia dated January 2, 1996 (incorporated by reference to Exhibit 10.6(a)
to the Company's 1995 Form 10-K)
10.2(b) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of
Robert Recchia dated January 3, 1997 (incorporated by reference to Exhibit 10.6(b)
of the Company's 1996 Form 10-K)
10.3 -- Employment Agreement, dated January 20, 1992, among Barry P. Hoffman, Valassis
Communications, Inc. and Valassis Inserts, Inc., including amendment dated
February 11, 1992 (incorporated by reference to Exhibit 10.6 to the Company's
Registration Statement No. 33-45189)
10.3(a) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of
Barry P. Hoffman dated December 19, 1995 (incorporated by reference to Exhibit
10.7(a) to the Company's 1995 Form 10-K)
10.4 -- 1992 Long-Term Incentive Plan, as amended (incorporated by reference to Exhibits
4.1 and 4.2 to the Company's Form S-8 filed on February 17, 1993, No. 33-59670)
10.4(a) -- Third Amendment of 1992 Long-Term Incentive Plan (incorporated by reference to
Exhibit D to the Company's Proxy Statement dated April 25, 1996)
10.5 -- Valassis Inserts, Inc. Employees' 401(k) Retirement Savings Plan (incorporated by
reference to Exhibit 10.8 to the Company's Registration Statement No. 33-45189)
10.5(a) -- First Amendment of the Valassis Communications, Inc. Employees' 401(k) Retirement
Savings Plan (incorporated by reference to Exhibit 10.9(a) to the Company's 1995
Form 10-K)
10.6 -- Valassis Inserts, Inc. Employees' Profit Sharing Plan (incorporated by reference
to Exhibit 10.9 to the Company's Registration Statement No. 33-45189)
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
LOCATION OF EXHIBIT
EXHIBIT IN SEQUENTIAL
NUMBER DESCRIPTION OF DOCUMENT NUMBERING SYSTEM
- --------- ------------------------------------------------------------------------------------ -------------------
<C> <S> <C>
10.6(a) -- First Amendment of the Valassis Communications, Inc. Employees' Profit Sharing
Plan (incorporated by reference to Exhibit 10.10(a) to the Company's 1995 Form
10-K)
10.7 -- Tax Sharing Agreement, dated as of December 31, 1991, among CII Holdings Group,
Inc. and each of its U.S. subsidiaries and Valassis Communications, Inc.
(incorporated by reference to Exhibit 10.10 to the Company's Registration
Statement No. 33-45189)
10.8 -- Access Agreement, dated as of December 31, 1991, among Valassis Communications,
Inc., Consolidated Press Holdings Limited and certain of its affiliates
(incorporated by reference to Exhibit 10.11 to the Company's Registration
Statement No. 33-45189)
10.9 -- Consolidated Federal Income Tax Liability Allocation Agreement, dated July 1,
1989, between Valassis Communications, Inc. and certain subsidiaries (incorporated
by reference to Exhibit 10.13 to the Company's Registration Statement No.
33-45189)
10.10 -- Valassis Inserts, Inc. Plant Employees Pension Plan (incorporated by reference to
Exhibit 10.14 to the Company's Registration Statement No. 33-45189)
10.11 -- Employment Agreement among Richard N. Anderson, Valassis Communications, Inc. and
Valassis Inserts, Inc. (incorporated by reference to Exhibit 10.16 to the
Company's Registration No. 33-45189)
10.11(a) -- Amendment to Employment Agreement among Richard N. Anderson, Valassis
Communications, Inc. and Valassis Inserts, Inc. (incorporated by reference to
Exhibit 10.15(a) to the Company's Form 10-K for the transition period of July 1,
1994 to December 31, 1994)
10.11(b) -- Amendment to Employment Agreement and Non Qualified Stock Option Agreement of
Richard N. Anderson dated December 15, 1995 (incorporated by reference to Exhibit
10.15(b) to the Company's 1995 Form 10-K)
10.12 -- Employment Agreement among Alan F. Schultz, Valassis Communications, Inc. and
Valassis Inserts, Inc. (incorporated by reference to Exhibit 10.17 to the
Company's Registration Statement No. 33-45189)
10.12(a) -- Amendment to Employment Agreement among Alan F. Schultz, Valassis Communications,
Inc. and Valassis Inserts, Inc. (incorporated by reference to Exhibit 10.16(a) to
the Form 10-K for the transition period of July 1, 1994 to December 31, 1994)
10.12(b) -- Amendment to Employment Agreement and Non Qualified Stock Option of Alan F.
Schultz dated December 19, 1995 (incorporated by reference to Exhibit 10.16(b) to
the Company's 1995 Form 10-K)
10.13 -- Valassis Communications, Inc. Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.17 to the 1992 Form 10-K)
10.14 -- Valassis Communications, Inc. Non-Employee Directors' Stock Compensation Plan
(incorporated by reference to Exhibit 4.3 to the Company's Form S-8 filed on
February 17, 1993, No. 33-59670)
10.15 -- Senior Executive Annual Bonus Plan (incorporated by reference to Exhibit A to the
Company's Proxy Statement dated October 24, 1994)
10.15(a) -- First Amendment of Senior Executive Annual Bonus Plan
(incorporated by reference to Exhibit E to the Company's Proxy
Statement dated April 25, 1996)
10.16 -- Conpress Stock Option Agreement (incorporated by reference to Exhibit 10.20 to
the Company's June 30, 1996 Form 10-Q)
10.17 -- Lease for New Headquarters Building (incorporated by reference to Exhibit 10.21
to the Company's June 30, 1996 Form 10-Q)
10.18 -- Form of Registration Rights Agreement between the Company and the Selling
Stockholder
10.19 -- Assignment of Stock Option Agreement dated June 5, 1997 among Conpress Cayman,
LDC, Consolidated Press International Limited, Conpress International (Netherlands
Antilles) N.V. and Valassis Communications, Inc.*
10.20 -- Indenture between Valassis Communications, Inc. and The Bank of New York, as
trustee, relating to the 9.55% Senior Notes due 2003 (incorporated by reference to
Exhibit 4.1 to the Company's Form 10-K for the transition period July 1, 1994 to
December 31, 1994)
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10.21 -- Form of Indenture between Valassis Communications, Inc. and The Bank of New York,
as trustee, relating to the 8 3/8% Senior Notes due 1997 (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement No. 33-45285)
10.21(a) -- First Supplemental Indenture dated as of March 31, 1993 (incorporated by
reference to Exhibit 10.1(a) to the Company's 1993 Form 10-K)
10.22 -- Form of Indenture between Valassis Communications, Inc. and The Bank of New York,
as trustee, relating to the 8 7/8% Senior Notes due 1999 (incorporated by
reference to Exhibit 4.3 to the Company's Registration Statement No. 33-45285)
10.22(a) -- First Supplemental Indenture dated as of March 31, 1993 (incorporated by
reference to Exhibit 10.2(a) to the Company's 1993 Form 10-K)
10.23 -- Form of Indenture between Valassis Communications, Inc. and The Bank of New York,
as trustee, relating to the 9 3/8% Senior Subordinated Notes due 1999
(incorporated by reference to Exhibit 4.2 to the Company's Registration Statement
No. 33-45285)
10.23(a) -- First Supplemental Indenture dated as of March 31, 1993 (incorporated by
reference to Exhibit 3 to the Company's Form 8-K dated as of March 31, 1993)
10.24 -- Credit Agreement dated as of March 6, 1992 (the 'Credit Facility'), among
Valassis Communications, Inc., the institutions named therein, the institutions
named therein as issuing banks, Citicorp USA, Inc., as agent and administrative
agent, and Westpac Banking Corporation, as agent (incorporated by reference to
Exhibit 10.3 to the Company's Registration Statement No. 33-45189)
10.24(a) -- Amended and Restated Amendment No. 1 to the Credit Facility, dated as of March 6,
1992 (incorporated by reference to Exhibit 10.3(a) to the Company's Registration
Statement No. 33-45189)
10.24(b) -- Amendment No. 2 to the Credit Facility, dated as of May 15, 1992 (incorporated by
reference to Exhibit 10.3(b) to the Company's 1992 Form 10-K)
10.24(c) -- Amendment No. 3 to the Credit Facility, dated as of June 10, 1992 (incorporated
by reference to Exhibit 10.3(c) to the Company's 1992 Form 10-K)
10.24(d) -- Amendment No. 4 to the Credit Facility, dated as of August 24, 1992 (incorporated
by reference to Exhibit 10.3(d) to the Company's 1992 Form 10-K)
10.24(e) -- Amended and Restated Credit Agreement dated as of March 31, 1993 (incorporated by
reference to Exhibit 10.3(e) to the Company's 1993 Form 10-K)
10.24(f) -- Amendment No. 1 to the Amended and Restated Credit Agreement dated as of July 26,
1993 (incorporated by reference to Exhibit 10.3(f) to the Company's 1993 Form
10-K)
10.24(g) -- Amended and Restated Credit Agreement dated as of December 29, 1993 (incorporated
by reference to Exhibit 10.4(g) to the Company's 1994 Form 10-K)
10.24(h) -- Amendment No. 4 to the Amended and Restated Credit Agreement dated as of December
29, 1993 (incorporated by reference to Exhibit 10.4(h) to the Company's Form 10-K
for the transition period July 1, 1994 to December 31, 1994)
10.25(a) -- Revolving Credit Agreement, dated as of August 11, 1995 ("Revolving Credit Agreement")*
10.25(b) -- First Amendment to Revolving Credit Agreement, dated as of December 15, 1996*
10.25(c) -- Amendment No. 2 to Revolving Credit Agreement, dated as of May 20, 1996*
10.25(d) -- Waiver to Revolving Credit Agreement, dated as of June 23, 1997
10.26 -- Executive Restricted Stock Plan (incorporated by reference to
Exhibit A to the Company's Proxy Statement dated April 25, 1996)
10.26(a) -- First Amendment of Executive Restricted Stock Plan (incorporated by
reference to Exhibit A -- Amendment No. 1 to the Company's Proxy
Statement dated April 25, 1996)
10.27 -- Employee and Director Restricted Stock Award Plan (incorporated by
reference to Exhibit B to the Company's Proxy Statement dated
April 25, 1996)
10.28 -- Employee Stock Purchase Plan (incorporated by reference to Exhibit
C to the Company's Proxy Statement dated April 25, 1996)
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23.1 -- Consent of Ernst & Young LLP
23.2 -- Consent of McDermott, Will & Emery, included in the opinion of McDermott, Will &
Emery, filed as Exhibit 5.1
24.1 -- Power of Attorney of Mark C. Davis*
24.2 -- Power of Attorney of other Directors (included on page II-5 of initial filing of
Registration Statement on June 6, 1997)*
27 -- Financial Data Schedule (incorporated by reference to Exhibit 27 to the Company's
March 31, 1997 Form 10-Q).
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*Previously filed
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Draft of June 26, 1997
================================================================================
VALASSIS COMMUNICATIONS, INC.
(A DELAWARE CORPORATION)
10,400,000 SHARES OF COMMON STOCK
(PAR VALUE $.01 PER SHARE)
U.S. PURCHASE AGREEMENT
Dated: July , 1997
================================================================================
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<PAGE>
VALASSIS COMMUNICATIONS, INC.
(a Delaware corporation)
10,400,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Donaldson, Lufkin & Jenrette Securities
Corporation
as Representatives of the several U.S. Underwriters
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:
Valassis Communications, Inc., a Delaware corporation (the
"Company") and Conpress International (Netherlands Antilles) N.V., a
Netherlands Antilles private limited liability company (the "Selling
Stockholder"), confirm their respective agreements with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of
the other U.S. Underwriters named in Schedule A hereto (collectively, the "U.S.
Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Merrill Lynch, Morgan
Stanley & Co. Incorporated, Bear, Stearns & Co. Inc. and Donaldson, Lufkin &
Jenrette Securities Corporation are acting as representatives (in such
capacity, the "U.S. Representatives"), with respect to (i) the sale by the
Selling Stockholder and the purchase by the U.S. Underwriters, acting severally
and not jointly, of the respective numbers of shares of Common Stock, par value
$.01 per share, of the Company ("Common Stock") set forth in Schedule A hereto
and (ii) the grant by the Selling Stockholder to the U.S. Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
pur-
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<PAGE>
chase all or any part of 1,560,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 10,400,000 shares of Common Stock (the
"Initial U.S. Securities") to be purchased by the U.S. Underwriters and all or
any part of the 1,560,000 shares of Common Stock 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 Stockholder
are concurrently entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for the offering by the Selling
Stockholder of an aggregate of 2,600,000 shares of Common Stock (the "Initial
International Securities") through arrangements with certain underwriters
outside the United States and Canada (the "International Managers") for which
Merrill Lynch International, Morgan Stanley & Co. International Limited, Bear,
Stearns International Limited and Donaldson, Lufkin & Jenrette Securities
Corporation are acting as lead managers (the "Lead Managers") and the grant by
the Selling Stockholder to the International Managers, acting severally and not
jointly, of an option to purchase all or a part of the International Managers'
pro rata portion of up to 390,000 additional shares of Common Stock 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 Stockholder is 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," and the U.S. Securities and the International
Securities are hereinafter collectively called the "Securities."
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 & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Stockholder understand that the
U.S. Underwriters propose to make a public offering of
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<PAGE>
the U.S. Securities as soon as the U.S. Representatives deem advisable after
this 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.
333-28685) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). Two forms of prospectus are to
be used in connection with the offering and sale of the Securities: one relating
to the U.S. Securities (the "Form of U.S. Prospectus") and one relating to the
International Securities (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 captions
"Underwriting" and "Available Information" and the inclusion in the Form of
International Prospectus of a section under the caption "Certain United States
Tax Consequences to Non-U.S. Holders." The information included in any such
prospectus or in any such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each Form of U.S. Prospectus and Form of International Prospectus
used before such registration statement became effective, and any prospectus
that omitted, as applicable, the Rule 430A Information or the Rule 434
Information, that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "preliminary prospectus."
Such registration statement, including the exhibits thereto, schedules thereto,
if any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective and including
the Rule 430A Information and the Rule 434 Information, as applicable, is
herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as
the "Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final Form of U.S. Prospectus and
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the final Form of International Prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the forms first furnished to the Underwriters for use in connection with
the offering of the Securities are herein called the "U.S. Prospectus" and the
"International Prospectus," respectively, and collectively, the "Prospectuses."
If Rule 434 is relied on, the terms "U.S. Prospectus" and "International
Prospectus" shall refer to the preliminary U.S. Prospectus, dated June 11, 1997,
and the preliminary International Prospectus, dated June 11, 1997, respectively,
each together with the applicable Term Sheet and all references in this
Agreement to the date of such Prospectuses shall mean the date of the applicable
Term Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the U.S. Prospectus, the International
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus (including the Form of
U.S. Prospectus and Form of International Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and Form of International Prospectus) or
the Prospectuses, as the case may be; and all references in this 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 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each U.S. Underwriter and the Selling Stockholder 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 and the Selling Stockholder, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule
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462(b) Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) 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.
At the respective times the Registration Statement, any Rule
462(b) 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, the Rule 462(b)
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 the
Prospectuses nor any amendments or supplements thereto at the time the
Prospectuses or any such amendment or supplement was 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. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
Prospectuses made in reliance upon and in conformity with information furnished
to the Company in writing by any U.S. Underwriter through Merrill Lynch
expressly for use in the Registration Statement or either of the Prospectuses.
Each preliminary prospectus and the 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 1933 Act, complied when so
filed in all material respects with 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
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<PAGE>
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 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. Ernst & Young LLP, the
accountants who certified the financial statements and supporting schedules
included in the Registration Statement 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 and notes, present fairly the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements
have been prepared in conformity with United States 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 information and the summary financial
information included in the Prospectuses present fairly the information shown
therein and have been compiled 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 or contemplated
thereby, (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 and which are required to be disclosed in the Registration Statement
and the Prospectuses,
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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, has corporate power and authority to own, lease
or operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this Agreement
and 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 reasonably be expected to have a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. The only subsidiaries of
the Company, considered in the aggregate as a single subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the 1933 Act.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company at March 31, 1997 was as is set forth in the
Prospectuses under the caption "Capitalization". The shares of issued and
outstanding capital stock, including the Securities to be purchased by the
Underwriters from the Selling Stockholder, have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding shares of
capital stock, including the Securities to be purchased by the Underwriters
from the Selling Stockholder, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Authorization of Agreements. This Agreement and the
International Purchase Agreement have been duly authorized, executed and
delivered by the Company.
(x) Absence of Manipulation. None of the Company or its
subsidiaries or any of their respective officers and directors has taken, or
will 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.
(xi) Authorization and Description of Securities. 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 in-
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struments defining the same; no holder of the Securities will be subject to
personal liability solely by reason of being such a holder.
(xii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws 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 or instrument to which
the Company or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments") except for
such violations or defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement and the
International Purchase Agreement by the Company and the consummation by the
Company of the transactions contemplated by this Agreement and the International
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 or any
subsidiary pursuant to, the Agreements and Instruments the effect of which
conflict, breach, default, Repayment Event, lien, charge or encumbrance would
reasonably be expected to have a Material Adverse Effect, nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or any subsidiary or any law, statute, rule, regulation, judgment,
order, writ or decree applicable to the Company or any subsidiary or any of
their assets, properties or operations of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their 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 or any
subsidiary.
(xiii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either
-8-
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<PAGE>
case, may reasonably be expected to result in a Material Adverse Effect.
(xiv) 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 or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which, if determined adversely to the
Company, would reasonably be expected to result in a Material Adverse Effect,
or which would reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this 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
or any subsidiary 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, could not
reasonably be expected to result in a Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration Statement, the
Prospectuses or the documents incorporated by reference therein or to be filed
as exhibits thereto which have not been so described and filed as required.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification
or decree of, any court or governmen tal authority or agency is necessary or
required for the performance by the Company of its obligations under this
Agreement or the International Purchase Agreement, in connection with the
offering or sale of the Securities by the Selling Stockholder under this
Agreement or the International Purchase Agreement, or the consummation of the
transactions contemplated by this 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 or state or foreign securities or blue
sky laws.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such 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 as described in the Prospectuses and are in compliance with
the terms and conditions of all such Governmental Li-
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censes, except where the failure so to possess such Governmental Licenses or to
comply therewith would not, singly or in the aggregate, reasonably be expected
to have 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 neither the Company nor
any of its subsidiaries has 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 reasonably be expected to result in a Material Adverse Effect.
(xviii) Title to Property. Except as set forth in the Credit
Agreement and the schedules thereto, the Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other material properties owned by them, 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) would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; and all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Prospectuses, are in full
force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of such leases or subleases,
or affecting or questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
(xix) Compliance with Tax Laws. All material income, payroll
and sales tax returns required to be filed by the Company or any of its
subsidiaries, in any jurisdiction, have been so filed, and all material taxes,
including related withholding taxes, penalties and interest, assessments and
other charges due or claimed to be due from such entities have been paid, other
than those being contested in good faith and for which adequate reserves have
been provided or those currently payable without penalty or interest.
(xx) Maintenance of Insurance. The Company and each of its
subsidiaries maintain insurance policies or reserves with respect to such
insurable properties, potential liabilities and occurrences that merit or
require catastrophic insurance in amounts deemed adequate in the reasonable
opinion of
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the Company's management; all such insurance policies are in full force and
effect.
(xxi) Investment Company Act. The Company is not, and upon the
sale of the Securities as herein contemplated will not be, 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").
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is 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 and
its subsidiaries have 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 or any of its subsidiaries 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 affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxiii) Listing. All of the Securities are listed on the New
York Stock Exchange.
(xxiv) U.S. Real Property Interest. The Securities do not
constitute a "United States real property interest" as defined in U.S. Internal
Revenue Code section 897(c)(1).
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING
STOCKHOLDER. The Selling Stockholder represents and warrants
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to each U.S. Underwriter and the Company as of the date hereof, as of the
Closing Time, and, if the Selling Stockholder is selling Option Securities on a
Date of Delivery, as of each such Date of Delivery, and agrees with each U.S.
Underwriter and the Company, as follows:
(i) Good Standing of the Selling Stockholder. The Selling
Stockholder has been duly organized and is validly existing and is in good
standing as a private limited liability company under the laws of the
Netherlands Antilles.
(ii) Accurate Disclosure. To the extent that any statements
or omissions made in the Registration Statement or Prospectuses, or any
amendment or supplement thereto, are made in reliance on and in conformity with
written information furnished to the Company by or on behalf of the Selling
Stockholder expressly for use therein, each such part of the Registration
Statement, when it became effective, did 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, and each such part of
either of the Prospectuses, or of any amendments or supplements thereto, at the
time it was issued and as of the Closing Time, did not include nor will it
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 Selling
Stockholder is not prompted to sell the Securities to be sold by the Selling
Stockholder hereunder in a manner which would constitute a violation of the 1933
Act, the 1934 Act or the respective rules and regulations thereunder by any
material nonpublic information concerning the Company or any subsidiary of the
Company known to the Selling Stockholder which is not set forth in the
Prospectuses. The Company and the Underwriters acknowledge that the statements
relating to such Selling Stockholder under the heading "Prospectus Summary --
The Selling Stockholder and Related Transactions" and "Principal and Selling
Stockholders" in the Registration Statement and the Prospectuses constitute the
only information furnished by or on behalf of such Selling Stockholder for
inclusion in the Registration Statement or any Prospectus.
(iii) Authorization of Agreements. The Selling Stockholder has
the full right, power and authority to enter into this Agreement and the
International Purchase Agreement and to sell, transfer and deliver the
Securities to be sold by the Selling Stockholder hereunder and thereunder. The
execution and delivery of this Agreement and the International Purchase
Agreement and the sale and delivery of the Securities to be sold by the Selling
Stockholder and the consummation by the Selling Stockholders of the transactions
contemplated in the
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Agreement and the International Purchase Agreement and compliance by the
Selling Stockholder with its obligations hereunder and thereunder have been duly
authorized by the Selling Stockholder 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 under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities to be
sold by the Selling Stockholder or any property or assets of the Selling
Stockholder pursuant to any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, license, lease or other agreement or instrument to
which the Selling Stockholder is a party or by which the Selling Stockholder may
be bound, or to which any of the property or assets of the Selling Stockholder
is subject the effect of which conflict, breach, default, lien, charge or
encumbrance would reasonably be expected to have a material adverse effect on
the ability of the Selling Stockholder to consummate the transactions
contemplated hereby or by the International Purchase Agreement, nor will such
action result in any violation of the provisions of the charter or by-laws or
other organizational instrument of the Selling Stockholder, if applicable, or
any applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Selling Stockholder or any of its
properties.
(iv) Good and Valid Title. The Selling Stockholder has and
will at the Closing Time and, if any Option Securities are purchased, on the
Date of Delivery have good and valid title to the Securities to be sold by the
Selling Stockholder hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind, other
than pursuant to this Agreement and the International Purchase Agreement and
other than the pledges of such Securi ties to Westpac Custodian Nominees Limited
("Westpac") as described in the Prospectuses, which pledges shall be fully
released at the Closing Time with respect to the Securities or, with respect to
Option Securities, on the Date of Delivery; and upon delivery of such Securities
and payment of the purchase price therefor as herein and therein contemplated,
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 the Selling Stockholder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind.
(v) Absence of Manipulation. None of the Selling
Stockholder, its affiliates or any of their respective officers or directors has
taken, and none will take, directly or indirectly, any action which is designed
to or which has consti-
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tuted 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.
(vi) 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 performance by the Selling Stockholder of its
obligations under this Agreement or the International Purchase Agreement, or in
connection with its sale and delivery of the Securities under this Agreement or
the International Purchase Agreement or the consummation of the transactions
contemplated by this Agreement and 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 or foreign securities or blue
sky laws.
(vii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by the Selling Stockholder pursuant to this
Agreement and the International Purchase Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures guaranteed, have been obtained and will be
made available for delivery to the Underwriters pursuant to this Agreement and
the International Purchase Agreement.
(viii) No Association with NASD. Neither the Selling
Stockholder nor any of its affiliates directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the National Association of Securities Dealers,
Inc.), any member firm of the National Association of Securities Dealers, Inc.
which will participate in the offering or distribution of the Securities.
(ix) No Transaction Taxes. None of (i) the U.S. Purchase
Agreement or the International Purchase Agreement or (ii) the issuance, sale and
delivery of the Securities to the Underwriters upon payment therefor as
contemplated by this Agreement and the International Purchase Agreement are
subject to any registration tax stamp duty or similar tax, duty, impost or levy
imposed by any governmental agency of the Netherlands Antilles or any political
subdivision thereof.
(x) Waiver of Immunities. The Selling Stockholder and its
obligations under this Agreement and the International Purchase Agreement are
subject to civil and commercial law and
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suit in the Netherlands Antilles and neither the Selling Stockholder nor any of
its properties, assets or revenues has any right of immunity under the laws of
the Netherlands Antilles or New York from any legal action, suit or proceeding,
from the giving of any relief in any such legal action, suit or proceeding,
from setoff or counterclaim, from the jurisdiction of any court of the
Netherlands Antilles, New York or the United States, from service of process,
attachment upon or prior to judgment, or from execution of a judgment, or other
legal process or proceeding for the giving of any relief or for the enforcement
of a judgment, in any such court, with respect to its obligations, liabilities
or other matter arising out of or in connection with this Agreement or the
International Purchase Agreement and, to the extent that the Selling Stockholder
or any of the Selling Stockholder's properties, assets or revenues may have or
may hereafter become entitled to any such right of immunity in any such court
in which any such proceedings may at any time be commenced, the Selling
Stockholder has waived or will waive such right to the extent permitted by law
and has consented to such relief and enforcement as provided in Section 14.
(xi) Consent to Jurisdiction; Appointment of Agent for
Service of Process. The Selling Stockholder has the power to submit, and
pursuant to this Agreement and the International Purchase Agreement has legally,
validly, effectively and irrevocably submitted to the personal jurisdiction of
any federal or state court in the Borough of Manhattan, City of New York, State
of New York, and has the power to designate, appoint and empower, and pursuant
to the separate written instrument referred to in Section 14, has legally,
validly, effectively and irrevocably designated, appointed and empowered, an
agent for service of process for any suit or proceeding based on or arising
under this Agreement or the International Purchase Agreement in any federal or
state court in the Borough of Manhattan, City of New York, State of New York, as
provided in Section 14.
(xii) Enforceability of New York Judgment. There is no reason
why the enforcement in the Netherlands Antilles of a judgment in respect of this
Agreement or the International Purchase Agreement would be contrary to the laws
of the Netherlands Antilles, national sovereignty or public policy or "good
morals" (as set forth in the laws of the Netherlands Antilles) and the Selling
Stockholder is not aware of any provision of this Agreement or the International
Purchase Agreement which would for any reason not be upheld by the courts of the
Netherlands Antilles.
(c) OFFICER'S CERTIFICATES. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the U.S.
Representatives or to counsel for the U.S. Un-
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derwriters shall be deemed a representation and warranty by the Company to each
U.S. Underwriter as to the matters covered thereby; and any certificate signed
by or on behalf of the Selling Stockholder as such and delivered to the U.S.
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Selling Stockholder as to the matters covered
thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) INITIAL U.S. SECURITIES. On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Selling Stockholder agrees to sell to each
U.S. Underwriter, severally and not jointly, and each U.S. Underwriter,
severally and not jointly, agrees to purchase from the Selling Stockholder, at
the price per share set forth in Schedule B, that proportion of the number of
Initial U.S. Securities set forth in Schedule A, 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 Securities, subject, in each case, to such adjustments among
such U.S. Underwriters as the U.S. Representatives in their sole discretion
shall make to eliminate any sales or purchases of fractional securities.
(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, the Selling Stockholder hereby grants an option to
the U.S. Underwriters, severally and not jointly, to purchase up to an
additional 1,560,000 shares of Common Stock, at the price per share set forth in
Schedule B, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial U.S. Securities but not
payable on the U.S. Option Securities. 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. Representatives to the Selling Stockholder setting forth
the number of U.S. Option Securities as to which the several U.S. Underwriters
are then exercising the option and the time and date of payment and delivery for
such U.S. Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the U.S. Representatives, but shall not be
later than seven full business days after the exercise of said option, unless
otherwise agreed by the U.S. Representatives and the Selling Stockholder, nor
in any event prior to the Closing Time, as hereinafter defined. If the op-
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tion 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, 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 U.S. Representatives
in their 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 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. Representatives and the Company
and the Selling Stockholder, at 9:00 A.M. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) 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. Representatives and the Company and the
Selling Stockholder (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, and delivery of certificates 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. Representatives and the Company and the Selling
Stockholder, on each Date of Delivery as specified in the notice from the U.S.
Representatives to the Company and the Selling Stockholder.
Payment shall be made to the Selling Stockholder by wire
transfer of immediately available funds to a bank account designated to Merrill
Lynch not later than two business days preceding the Closing Time by the Selling
Stockholder against delivery to the U.S. Representatives for the respective
accounts of the U.S. Underwriters of certificates for the Securities to be
purchased by them. It is understood that each U.S. Underwriter has authorized
the U.S. Representatives, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the Initial U.S. Securities and the
U.S. Option Securities, if any, which it has agreed to purchase. 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
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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 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. Representatives may
request in writing at least two full business days before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates 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. Representatives 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. (a) Covenants of the Company. The
Company covenants with each U.S. Underwriter and with the Selling Stockholder as
follows:
(i) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company, subject to Section 3(a)(ii), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the U.S.
Representatives and the Selling Stockholder 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 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.
(ii) FILING OF AMENDMENTS. The Company will give the U.S.
Representatives and the Selling Stockholder notice of
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its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectuses 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 furnish the U.S.
Representatives 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. Representatives or counsel for the U.S.
Underwriters shall object.
(iii) DELIVERY OF REGISTRATION STATEMENTS. The Company has
furnished or will deliver to the U.S. Representatives and the Selling
Stockholder and their respective counsel, 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
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also
deliver to the U.S. Representatives, 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 and the Selling Stockholder 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.
(iv) 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 transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(v) 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 Agreement, the International Purchase
Agreement and in the Prospectuses. If at any time when a pro-
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spectus 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 opinion of counsel for the U.S. Underwriters or
for the Company, to amend the Registration Statement or amend or supplement the
Prospectuses 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 opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectuses 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(a)(ii), 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
Underwriters may reasonably request.
(vi) BLUE SKY QUALIFICATIONS. The Company will use its best
efforts, 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 (domestic or foreign) as the U.S. Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; 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 year from the effective date of the Registration Statement
and any Rule 462(b) Registration Statement.
(vii) 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.
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(viii) RESTRICTION ON SALE OF SECURITIES. During a period of
120 days from the date of the Prospectuses, the Company will not, without the
prior written consent of Merrill Lynch, (i) directly or indirectly, 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 or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable 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 such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold under this Agreement
and the International Purchase Agreement, (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectuses,
(C) any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company referred to
in the Prospectuses or incorporated by reference therein or in any Proxy
Statement filed with the Commission, in each case, as in effect on the date
hereof or (D) any shares of Common Stock issued pursuant to any non-employee
director stock plan or dividend reinvestment plan, in each case, as in effect
on the date hereof.
(ix) 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 within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(x) For a period of two years after the Closing Time, the
Company will furnish to you and, upon request, to each other Underwriter, copies
of all annual reports, quarterly reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the Commission, and such other documents, reports and information
as shall be furnished by the Company to its stockholders generally.
(b) COVENANTS OF THE SELLING STOCKHOLDER. The Selling
Stockholder covenants with each U.S. Underwriter as follows:
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(i) RESTRICTION ON SALE OF SECURITIES. During a period of
120 days from the date of the Prospectuses, the Selling Stockholder will not,
without the prior written consent of Merrill Lynch, (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 or
otherwise transfer or dispose of, directly or indirectly, any share of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, in each case, whether now owned or hereafter acquired, 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 such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the International Purchase
Agreement, (B) sales of Common Stock to the Company pursuant to the Option
Agreement dated May 9, 1996 among the Company, Conpress Cayman LDC and
Consolidated Press International Limited, as assigned to the Selling Stockholder
by an assignment dated June 5, 1997, as in effect on the date hereof (provided
that such sales do not exceed, in the aggregate, 808,400 shares), (C) the pledge
of Common Stock to a bank pursuant to a credit facility of the Selling
Stockholder or any of its affiliates and (D) any transfers to affiliates of the
Selling Stockholder.
(ii) INDEMNIFICATION FOR STAMP TAXES. The Selling Stockholder
agrees to indemnify and hold harmless the Underwriters against any documentary,
stamp or similar transfer tax, or fees, including any interest and penalties,
which are or may be required to be paid in connection with the Offering and sale
of the Securities by the Underwriters or on the execution or delivery of this
Agreement and the International Purchase Agreement.
SECTION 4. Payment of Expenses.
(a) EXPENSES. Subject to Section 4(b) below, the Company and
the Selling Stockholder will pay or cause to be paid all expenses incident to
the performance of their obligations under this 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 preparation, printing and delivery to the Underwriters of
this Agreement, the International Purchase Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale or delivery of the Securities, (iii) the
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preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(a)(vi) 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, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets 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) the fees and expenses incurred in connection with any listing
of any Securities on the New York Stock Exchange, (x) the filing fees incident
to, and the reasonable fees and disbursements of counsel to the Underwriters in
connection with the review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities, (xi) stamp duties, capital
duties and stock transfer taxes, if any, payable upon the sale of the Securities
to the Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, and (xii) the fees and disbursements of
the Selling Stockholder's counsel, accountants and other advisors.
[(b) EXPENSES PAID BY THE SELLING STOCKHOLDER. The Company and
the Selling Stockholder have agreed that the Selling Stockholder will be
responsible for the payment of all expenses incident to the performance of its
obligations under, and the consummation of the transactions contemplated by this
Agreement, excluding the fees and disbursements of the Company's counsel.]
(c) TERMINATION OF AGREEMENT. If this Agreement is terminated
by the U.S. Representatives in accordance with the provisions of Section 5,
Section 9(a)(i) or Section 11 hereof, the Company and the Selling Stockholder
shall reimburse the U.S. Underwriters for all of their out-of-pocket expenses,
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 Stockholder may
make for the sharing of such costs and expenses.
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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
Stockholder contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of the Selling
Stockholder delivered pursuant to the provisions hereof, to the performance by
each of the Company and the Selling Stockholder of its covenants and other
obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at 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 Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet 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.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of McDermott, Will & Emery, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the U.S. Underwriters, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit A hereto.
(c) OPINIONS OF COUNSEL FOR THE SELLING STOCK HOLDER. At
Closing Time, the U.S. Representatives shall have received the favorable
opinion, dated as of Closing Time, of Debevoise & Plimpton, U.S. counsel for the
Selling Stockholder, in form and substance reasonably satisfactory to counsel
for the U.S. Underwriters, together with signed or reproduced copies of such
letter for each of the other U.S. Underwriters to the effect set forth in
Exhibit B-1 hereto. In addition, at Closing Time, the U.S. Representatives shall
have received the favorable opinion, dated as of Closing Time, of Halley, Blaauw
& Navarro, special Netherlands Antilles counsel for the Selling Stockholder, in
form and substance reasonably satisfactory to counsel for the U.S. Underwriters,
together with signed or re-
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produced copies of such letter for each of the other U.S. Underwriters to the
effect set forth in Exhibit B-2 hereto.
(d) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Cahill Gordon & Reindel, counsel for the U.S. Underwriters,
together with signed or reproduced copies of such letter for each of the other
U.S. Underwriters with respect to the matters set forth in clauses (i), (ii),
(v), (vii), (viii), (ix), (xi) and (xiv) (solely as to the information in the
Prospectuses under "Description of Common Stock") and the penultimate paragraph
of Exhibit A hereto. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the U.S.
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(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 Prospec tuses, any 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, and the
U.S. Representatives and the Selling Stockholder 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 are contemplated by the Commission.
(f) CERTIFICATE OF SELLING STOCKHOLDER. At Closing Time, the
U.S. Representatives shall have received a certificate of a managing director
of the Selling Stockholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of the Selling Stockholder contained in Section
1(b) hereof are true and correct in all respects with the same
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force and effect as though expressly made at and as of Closing Time and (ii) the
Selling Stockholder has complied in all material respects with all agreements
and all conditions on its part to be performed under this Agreement at or prior
to Closing Time.
(g) ACCOUNTANT'S COMFORT LETTER. At the time of the execution
of this Agreement, the U.S. Representatives and the Selling Stockholder shall
have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the U.S. Representatives, 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.
Representatives and the Selling Stockholder shall have received from Ernst &
Young 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 (four, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day) business days prior to Closing Time.
(i) LOCK-UP AGREEMENTS. At the date of this Agreement, the
U.S. Representatives shall have received an agreement substantially in the form
of Exhibit C hereto signed by the persons listed on Schedule C hereto.
(j) RELEASE OF PLEDGES. The pledges (the "Pledges") of the
Securities by the Selling Stockholder to Westpac, as described in the
Prospectuses and pursuant to a Stock Pledge Agreements between the Selling
Stockholder and Westpac, will be fully and completely released on or prior to
the Closing Time. The U.S. Representatives shall have received such documents as
reasonably required to evidence the full and complete release by Westpac of the
Pledges.
(k) CONSUMMATION OF SALE OF INTERNATIONAL SECURITIES. The
sale of the International Securities pursuant to the International Purchase
Agreement shall have been consummated simultaneously with the sale of the U.S.
Securities hereby.
(l) NO OBJECTION. The NASD has confirmed that it has not
raised any objection with respect to the fairness and
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reasonableness of the underwriting terms and arrangements contemplated by this
Agreement.
(m) TREASURY CERTIFICATE. The Company shall have furnished to
the Selling Stockholder and the U.S. Representatives a certificate dated as of
the Closing Time (x) pursuant to U.S. Treasury Regulation section 1.897-2(g)
stating that the Securities do not constitute a United States real property
interest and (y) stating that the Company has complied with the requirements of
U.S. Treasury Regulation section 1.897-2(h)(2) or 1.897-2(h)(4) in relation to
the statement referred to in clause (x) of this paragraph.
(n) 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 Stockholder
contained herein and the statements in any certificates furnished by the
Company, any subsidiary of the Company and the Selling Stock holder hereunder
shall be true and correct as of each Date of Delivery and, at the relevant Date
of Delivery, the U.S. Representatives and, in the case of items referred to in
clauses (i), (vi) and (vii), the Selling Stockholder, 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 Selling Stockholder. A certificate, dated
such Date of Delivery, of a managing director of the Selling
Stockholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
McDermott, Will & Emery, counsel for the Company, in form and
substance reasonably satisfactory to 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(b) hereof.
(iv) Opinions of Counsel for the Selling Stockholder. The
favorable opinion of each of (i) Debevoise & Plimpton, U.S. counsel for
the Selling Stockholder, and (ii) Halley,
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Blaauw & Navarro, special Netherlands Antilles counsel for the Selling
Stockholder, each opinion in form and substance reasonably
satisfactory to 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 De livery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(v) Opinion of Counsel for Underwriters. 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 Ernst & Young
LLP, in form and substance satisfactory to the U.S. Representatives and
dated such Date of Delivery, substantially in the same form and
substance as the letter furnished pursuant to Section 5(h) hereof,
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than three days prior to such
Date of Delivery.
(vii) Treasury Certificate. A certificate dated such
Date of Delivery to the same effect as the certificate required by
Section 5(m) hereof.
(o) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery counsel for the U.S. Underwriters shall have been furnished with such
information, certificates and documents as they may reasonably request for the
purpose of enabling them to pass upon the issuance and 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 corporate proceedings taken by the Company and the
Selling Stockholder in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance
to the U.S. Representatives 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 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 several U.S. Underwriters to purchase the relevant U.S.
Option Securities, may be terminated by the U.S. Representatives by notice to
the Company and the Selling Stockholder at any time at or prior to Closing Time
or such Date of
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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 6 and 7 shall survive any such termination and remain in full force and
effect.
(q) SELLING STOCKHOLDER. The certificates and letters to be
delivered to the Selling Stockholder pursuant to subsections (e), (g), (h), (m)
and (n)(i), (vi) and (vii) of this Section 5 shall be deemed to be adequately
delivered for purposes of this Agreement and the International Purchase
Agreement if such certificate or letter is addressed to the Selling Stockholder
and is otherwise substantially similar to the corresponding certificate or
letter to be delivered to the Underwriters.
SECTION 6. Indemnification.
(a) INDEMNIFICATION OF UNDERWRITERS BY THE COMPANY. The
Company agrees to indemnify and hold harmless each U.S. Underwriter and each
person, if any, who controls any U.S. Under writer within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the "U.S.
Underwriter Indemnitees"), 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), including the Rule
430A Information and the Rule 434 Information, if applicable, 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(e) below) any such
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settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to the fifth sentence of Section 6(d), the fees
and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred 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 (i) 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 thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto) and (ii)
that, as to any preliminary prospectus, this indemnity agreement shall not inure
to the benefit of any U.S. Underwriter on account of any loss, claim, damage,
liability or action arising from the fact that such U.S. Underwriter sold
Securities to a person as to whom the Company shall sustain the burden of
proving that such person was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented in any case where such delivery is required by the 1933
Act if the Company has previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in such preliminary prospectus, which was corrected in the Prospectus
or in the Prospectus as then amended or supplemented and the claims asserted by
such person do not include allegations of other untrue statements or omissions
made in such preliminary prospectus which was not corrected in the Prospectus
or in the Prospectus as then amended or supplemented which allegations are
upheld by a final judgment.
(b) INDEMNIFICATION OF THE U.S. UNDERWRITERS BY THE SELLING
STOCKHOLDER. Subject to Section 6(g), the Selling Stockholder agrees to
indemnify and hold harmless each of the U.S. Underwriter Indemnitees 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
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with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectuses (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Selling Stockholder
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto).
(c) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS AND
SELLING STOCKHOLDER. 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
(collectively, the "Company Indemnitees"), and the Selling Stockholder and each
person, if any, who controls the Selling Stockholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act (collectively, the
"Selling Stockholder Indemnitees") 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 thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Under
writer through Merrill Lynch expressly for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto).
(d) 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 hereun der, 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) and 6(b) above, counsel to the indemnified parties
shall be selected by Merrill Lynch, and, in the case of parties indemnified
pursuant to Section 6(c) above, counsel to any Company Indemnitees shall be
satisfactory to the Company and coun-
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sel to any Selling Stockholder Indemnitees shall be satisfactory to the Selling
Stockholder. If an indemnifying party so elects within a reasonable time after
receipt of such notice, such indemnifying party, jointly with any other
indemnifying parties receiving the notice required under the first sentence
hereof, may assume the defense of such action at its own expense with counsel
chosen by it and approved by the indemnified parties defendant in such action
(which approval shall not be unreasonably withheld), unless such indemnified
parties reasonably object to such assumption on the ground that there may be
legal defenses available to them which are different from or in addition to
those available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying party shall not be liable for any fees
and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. 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 on all claims that were or could have been made by all parties to such
claim, 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.
(e) 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; provided, however, if at any time an indemnified
party
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shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by this Section 6(e) offered without
its written consent if (x) such indemnifying party reimburses such indemnified
party in accordance with such request to the extent it considers such request to
be reasonable; and (y) such indemnifying party provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The
provisions of this Section shall not affect any agreement among the Company and
the Selling Stockholder with respect to indemnification.
(g) SELLING STOCKHOLDER'S LIMITATION. The Selling Stockholder
shall not be responsible for the payment of an amount, pursuant to this Section
6, which exceeds the aggregate gross proceeds (net of underwriting discount) to
the Selling Stockholder from the sale of the Securities by the Selling
Stockholder hereunder.
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
severally 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 Stockholder on the one hand and the U.S.
Underwriters on the other hand from the offering of the Securities pursuant to
this 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 Stockholder 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
Stockholder on the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling
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Stockholder and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company and the Selling Stockholder
on the one hand and the U.S. Underwriters on the other hand 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 Stockholder
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.
The Company, the Selling Stockholder and the 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 foregoing provisions of this Section 7,
(A) 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 and (B) the Selling Stockholder shall not be required to contribute any
amount under this Section 7 (i) in excess of the amount by which the gross
proceeds (net of underwriting discount) to the Selling Stockholder from the sale
of the Securities by the Selling Securities hereunder exceeds the aggregate
amount that the Selling Stockholder has otherwise paid pursuant to Section 6(b)
and (ii) except to the extent the Selling Stockholder would have been liable to
indemnify under Section 6 if such indemnification were enforceable under
applicable law.
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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 the Selling Stockholder 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 the Selling Stockholder, 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 Initial U.S. Securities set
forth opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement
among the Company and the Selling Stockholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Stockholder 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 Stockholder, and shall survive delivery of the
U.S. Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) TERMINATION; GENERAL. The U.S. Representatives may
terminate this Agreement, by notice to the Company and the Selling Stockholder,
at any time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement 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 and its subsidiaries considered as one
enterprise, 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 pro-
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<PAGE>
spective 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. Representatives, 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 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 6 and 7 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the 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 Agreement (the "Defaulted Securities"), the U.S. Representatives
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.
Representatives 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 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
Sell-
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<PAGE>
ing Stockholder 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 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 U.S. Underwriters to purchase and the Company to sell the relevant U.S.
Option Securities, as the case may be, either (i) the U.S. Representatives or
(ii) the Company and the Selling Stockholder 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 Prospectuses 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 the Selling Stockholder. If the Selling
Stockholder shall fail at Closing Time or at a Date of Delivery to sell and
deliver the number of Securities which the Selling Stockholder is obligated to
sell hereunder then the U.S. Underwriters may, at the option of the U.S.
Representatives, by notice from the U.S. Representatives to the Company,
terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 4, 6 and 7 shall
remain in full force and effect. No action taken pursuant to this Section 11
shall relieve the Selling Stockholder so defaulting from liability, if any, in
respect of such default.
In the event of a default by the Selling Stockholder as
referred to in this Section 11, each of the U.S. Representatives and the
Company shall have the right to postpone Closing Time or 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
U.S. Underwriters shall be directed to the U.S. Representatives at North Tower,
World Financial Center, New York, New York 10281-1201, atten-
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<PAGE>
tion of [ ]; notices to the Company shall be directed to it at 19975 Victor
Parkway, Livonia, Michigan 48152, attention of Barry P. Hoffman, Esq., with a
copy to Mark Thoman, Esq., McDermott, Will & Emery, 50 Rockefeller Plaza, New
York, NY 10020; and notices to the Selling Stockholder shall be directed to it
at c/o 2nd Floor, Block A, Russell Court, Saint Stephen's Green, Dublin 2,
Ireland, with a copy to David Barnett, Esq., Consolidated Press Holdings
Limited, 54-58 Park Street, Sydney, N.S.W., Australia.
SECTION 13. Parties. This Agreement shall each inure to the
benefit of and be binding upon the U.S. Underwriters, the Company and the
Selling Stockholder and their respective successors. Nothing expressed or
mentioned in this 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 Stockholder 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 Agreement or any provision herein contained. This
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 Stockholder 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. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities. By the execution and delivery of this Agreement and the
International Purchase Agreement, the Selling Stockholder (i) acknowledges that
is has, by separate written instrument, designated and appointed, CT
Corporation, 1633 Broadway, New York, New York 10019(the "Agent for Service")
and any successor entity), as its authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to this Agreement or
the International Purchase Agreement or the Prospectuses that may be instituted
in any federal or state court in the Borough of Manhattan, City of New York,
State of New York or brought under federal or state securities laws, and
represents and warrants that the Agent for Service has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such
suit or proceeding and (iii) agrees that service of process upon the Agent for
Service and written notice of said service to the Selling Stockholder in
accordance with Section 12 shall be deemed in every respect effective service of
process upon the Selling Stockholder, in any such suit or proceeding. The
Selling Stockholder further agrees to take any and all action, including the
execution and
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<PAGE>
filing of any and all such documents and instruments, as may be necessary to
continue such designation appointment of the Agent for Service in full force and
effect; provided that the Selling Stockholder may, and to the extent the Agent
for Service ceases to be able to be served on the basis contemplated herein,
shall by written notice to the Representatives, designate such additional or
alternative agent for service of process under this Section 14 that (i)
maintains an office in the Borough of Manhattan, City of New York, State of New
York, and (ii) is either (x) counsel for the Company or U.S. Counsel for the
Selling Stockholders or (y) a corporate service company which acts as agent for
service of process for other persons in the ordinary course of business. Such
written notice shall identify the name of such agent for service of process and
the address of the office of such agent for service of process.
SECTION 15. 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 16. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
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<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Selling Stockholder a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the U.S. Underwriters, the Company and the Selling
Stockholder in accordance with its terms.
Very truly yours,
VALASSIS COMMUNICATIONS, INC.
By_________________________________________
Name:
Title:
CONPRESS INTERNATIONAL (NETHERLANDS
ANTILLES) N.V.
By_________________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
BEAR, STEARNS & CO. INC.
DONALDSON LUFKIN & JENRETTE SECURITIES
CORPORATION
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_________________________
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S.
Underwriters named in Schedule A hereto.
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<PAGE>
SCHEDULE A
Number of
Initial U.S.
Securities
----------
Name of U.S. Underwriter
- ------------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.......................................
Morgan Stanley & Co. Incorporated..............................
Bear, Stearns & Co. Inc........................................
Donaldson, Lufkin & Jenrette Securities
Corporation..................................................
----------
Total........................................................... 10,400,000
<PAGE>
<PAGE>
SCHEDULE B
VALASSIS COMMUNICATIONS, INC.
10,400,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The 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 public offering price set forth above less $_____________ per
share; provided that the purchase price per share for any 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 declared by the Company and payable on the Initial Securities
but not payable on the Option Securities.
B-1
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SCHEDULE C
List of persons and entities
subject to lock-up
[To Come]
C-1
<PAGE>
<PAGE>
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(ii) The Company has corporate power and corporate 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 each of the U.S. Purchase Agreement and the International Purchase
Agreement.
(iii) The Company 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, such states having been identified to us
in a certificate of the Company as the only states in which the Company owns or
leases material properties or conducts material business.
(iv) 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 any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or proxy statements previously filed with the Commission under the
1934 Act or pursuant to the exercise of convertible securities or options
referred to in the Prospectuses); the Securities to be purchased by the
Underwriters from the Selling Stockholder have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the Securities was
issued in violation of the preemptive or other similar rights (under law,
pursuant to the Company's charter or by-laws or, to our knowledge, by contract
or other agreement to which the Company is a party).
(v) Under Delaware law, no holder of the Securities is or
will be subject to personal liability solely by reason of being such a holder.
(vi) The sale of the Securities by the Selling Stockholder
is not subject to any right of first refusal or other similar right (under law,
pursuant to the Company's charter or by-laws or, to our knowledge, by contract
or other agreement to
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<PAGE>
which the Company is a party) of any securityholder of the Company.
(vii) The U.S. Purchase Agreement and the International
Purchase Agreement have been duly authorized, executed and delivered by The
Company.
(viii) Such counsel has been advised by the Commission that the
Registration Statement, including any Rule 462(b) Registration Statement, was
declared effective under the 1933 Act; any required filing of the Prospectuses
pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
(ix) The Registration Statement, as of its effective date and
including any Rule 462(b) Registration Statement, the Rule 430A Information and
the Rule 434 Information, as applicable, the Prospectuses, as of their dates
and excluding the documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and Prospectuses,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements,
supporting schedules and other financial or statistical data included therein or
omitted therefrom, as to which we express no opinion) appeared on their face to
be responsive in all material respects to the requirements of the 1933 Act and
the 1933 Act Regulations; provided that the foregoing shall not be deemed to be
an opinion regarding the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus.
(x) The documents incorporated by reference in the
Prospectuses(other than the financial statements, supporting schedules and other
financial statistical data included therein or omitted therefrom, as to which we
need express no opinion), when they were filed with the Commission appeared on
their face to be responsive in all material respects to the requirements of the
1934 Act and the rules and regulations of the Commission thereunder; provided
that the foregoing shall not be deemed to be an opinion regarding the accuracy,
completeness or fairness of the statements contained in such documents.
(xi) The form of certificate used to evidence the Common
Stock complies in all material respects with all applicable statutory
requirements and with any applicable requirements of the charter and by-laws of
the Company.
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(xii) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, before or
brought by any court or governmental agency, authority or body, involving the
Company or its property of a character required to be disclosed in the
Prospectuses which are not described as required or which might reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in the U.S. Purchase Agreement or the International Purchase
Agreement or the performance by the Company of its obligations thereunder.
(xiii) The information in the Prospectuses under "Shares
Eligible for Future Sale", "Principal and Selling Stockholders - Certain
Transactions and Relationships" (except for information relating to the Option
Agreement and the assignment thereof to the Selling Stockholder) and
"Indemnification of Directors and Officers" in the Registration Statement under
Item 15, to the extent that it constitutes matters of law, summaries of legal
matters, the Company's charter and bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects.
(xiv) The capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in the
Prospectuses under the caption "Description of Common Stock," and, to the extent
that it constitutes matters of law, summaries of legal matters, the Company's
charter and bylaws or legal proceedings, or legal conclusions, the information
under such caption has been reviewed by us and is correct in all material
respects.
(xv) All statements in the Registration Statement describing
any legal proceeding or contracts or other documents to which the Company or its
subsidiaries are a party fairly summarize such proceedings, contracts or other
documents; to the best of our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other documents of a
character required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereto or references thereto fairly summarize such matters.
(xvi) To the best of our knowledge, neither the Company
nor any subsidiary is in violation of its charter or
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<PAGE>
by-laws and no default by the Company or any subsidiary exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectuses or filed or incorporated by reference
as an exhibit to the Registration Statement.
(xvii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under the 1933
Act and the 1933 Act Regulations, which have been obtained, or as maybe required
under the securities or blue sky laws of the various states or foreign
countries, as to which we need express no opinion) is necessary or required of
the Company in connection with the due authorization, execution and delivery of
the U.S. Purchase Agreement and the International Purchase Agreement or for the
offering, sale or delivery of the Securities.
(xviii) Neither the sale of the Securities, nor the execution
and performance of the U.S. Purchase Agreement and the International Purchase
Agreement (A) will contravene any of the provisions of, or result in a default
under, any agreement, franchise, license, indenture, mortgage, deed of trust, or
other instrument of the Company or any of its subsidiaries known to us (which
are listed on Schedule A hereto and which have been identified to such counsel
in a certificate of the Company as all of the agreements and instruments which
are material to the business or financial condition of the Company or any of
its subsidiaries) to which the Company or any subsidiary is a party to by which
the Company or any subsidiary is bound or to which the property of any of them
is subject, and which contravention or default could reasonably be expected to
have a Material Adverse Effect; (B) will violate any of the provisions of the
charter or bylaws of the Company or any of its subsidiaries or (C) so far as it
is known to us, violate any law, statute, order, judgment, order, writ, decree,
rule or regulation of any regulatory or governmental body having jurisdiction
over the Company or any of its subsidiaries or any of their respective
properties, assets or operations (except that we express no opinion with
respect to any Federal, state or foreign securities laws or the policies
underlying such laws).
(xix) The Company is not an "investment company" or an
entity" controlled" by an "investment company," as such terms are defined in the
1940 Act.
During the course of the preparation of the Registration
Statement and the Prospectuses, we have examined various
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<PAGE>
documents and participated in conferences with representatives of and
accountants for the Company, with representatives of the Selling Stockholder and
their counsel and with representatives of the underwriters and their counsel, at
which the contents of the Registration Statement and the Prospectuses and other
related matters were discussed. Other than as set forth above, we have not
verified, are not passing upon and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectuses. Such counsel advises you, however,
that in the course of such counsel's examination and during the above-mentioned
conferences, no facts have come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable),(except for financial
statements and schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which we express
no opinion), at the date such Registration Statement or any such amendment
became effective, contained an 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 or that the Prospectuses or any amendment or
supplement thereto (except for financial statements and schedules and other
financial and statistical data included or incorporated by reference therein or
omitted therefrom, as to which we express no opinion), at the time the
Prospectuses were issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted 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.
In rendering such opinion, such counsel may rely as to matters
of fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-5
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<PAGE>
EXHIBIT B-1
FORM OF OPINION OF U.S. COUNSEL FOR THE SELLING STOCKHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any New York or United
States federal court or governmental authority or agency (other than the
issuance of the order of the Commission declaring the Registration Statement
effective and such authorizations, approvals or consents as maybe necessary
under state securities laws, as to which we need express no opinion) is
necessary or required to be obtained by the Selling Stockholder for the
performance by the Selling Stockholder of its obligations under the U.S.
Purchase Agreement or the International Purchase Agreement or in connection with
the offer, sale or delivery of the Securities by the Selling Stockholder to the
Underwriters in accordance therewith.
(ii) The execution, delivery and performance of the U.S.
Purchase Agreement and the International Purchase Agreement and the sale and
delivery of the Securities and the consummation of the transactions
contemplated in the U.S. Purchase Agreement, the International Purchase
Agreement and in the Registration Statement and compliance by the Selling
Stockholder with its obligations under the U.S. Purchase Agreement and the
International Purchase Agreement (assuming each has been duly authorized,
executed and delivered by all necessary action on the part of the Selling
Stockholder) do not and will not result in any violation of the provisions of
any New York or United States federal law, administrative regulation, judgment
or order of any governmental agency or body or any administrative or court
decree having jurisdiction over the Selling Stockholder or any of its
properties.
(iii) Upon due delivery to the Underwriters of a certificate
or certificates for the Securities, against receipt of the purchase price
therefor as provided in the U.S. Purchase Agreement and the International
Purchaser Agreement. the Selling Stockholder will transfer to the Underwriters
who have purchased such Securities pursuant to the U.S. Purchase Agreement and
the International Purchase Agreement valid title to such Securities, free and
clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind (assuming that the Underwriters are without notice of
any adverse claim as defined in the New York Uniform Commercial Code (the
"Code"), and are purchasers for value in good faith for purposes of the Code
and that such Underwriters are not limited by subsection (4) of Section 8-302 of
the Code).
B-1
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<PAGE>
(iv) There is no New York State or New York City stamp duty,
value-added tax or other tax or duty, payable by or on behalf of the
Underwriters or the Selling Stockholder in connection with the sale and delivery
by the Selling Stockholder of the Securities to the Underwriters contemplated
by the U.S. Purchase Agreement and the International Purchase Agreement.
(v) The information in the Prospectuses under the captions
"Principal and Selling Stockholders -- Certain Transactions and Relationships"
relating to the Option Agreement and the assignment thereof to the Selling
Stockholder and "Certain United States Tax Consequences," to the extent that
such information constitutes matters of law, summaries of legal matters or
legal conclusions, has been reviewed by us and is correct in all material
respects.
B-2
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<PAGE>
EXHIBIT B-2
FORM OF OPINION OF SPECIAL FOREIGN COUNSEL FOR THE SELLING
STOCKHOLDER TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) The Selling Stockholder has been duly organized and is
validly existing and is in good standing as a private limited liability company
under the laws of the Netherlands Antilles. In addition the Selling Stockholder
is in compliance with its organizational documents.
(ii) No filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any Netherlands
Antilles court or governmental authority or agency is necessary or required to
be obtained by the Selling Stockholder for the performance by the Selling
Stockholder of its obligations under the U.S. Purchase Agreement or the
International Purchase Agreement or in connection with the offer, sale or
delivery of the Securities.
(iii) The Selling Stockholder has the full right, power and
authority to enter into and perform its obligations under the U.S. Purchase
Agreement and the International Purchase Agreement. Each of the U.S. Purchase
Agreement and the International Purchase Agreement has been duly authorized,
executed and delivered by or on behalf of the Selling Stockholder.
(iv) The execution, delivery and performance of the U.S.
Purchase Agreement and the International Purchase Agreement and the sale and
delivery of the Securities and the consummation of the transactions
contemplated in the U.S. Purchase Agreement, the International Purchase
Agreement and in the Registration Statement and compliance by the Selling
Stockholder with its obligations under the U.S. Purchase Agreement and the
International Purchase Agreement have been duly authorized by all necessary
action on the part of the Selling Stockholder 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 under or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities or any
property or assets of the Selling Stockholder pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, license,
lease or other instrument or agreement to which the Selling Stockholder is a
party or by which it may be bound, or to which any of the property or assets of
the Selling Stockholder may be subject nor will such action result in any
violation of the provisions of the charter or by-laws of the Selling Stockholder
or any law, administrative regulation, judgment or order of any governmental
agency
B-1
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<PAGE>
or body or any administrative or court decree having jurisdiction over the
Selling Stockholder or any of its properties.
(v) To the best of our knowledge, the Selling Stockholder
has valid and marketable title to the Securities to be sold by the Selling
Stockholder pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind, and has full right, power and
authority to sell, transfer and deliver such Securities pursuant to the U.S.
Purchase Agreement and the International Purchase Agreement.
(vi) The Selling Stockholder and its obligations under the
U.S. Purchase Agreement and the International Purchase Agreement are subject to
civil and commercial law and to suit in the Netherlands Antilles and neither the
Selling Stockholder nor any of its properties, assets or revenues has any right
of immunity under the laws of the Netherlands Antilles or New York from any
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court of the Netherlands Antilles, New York or the United
States from service of process, attachment on or prior to judgment or
attachment in aid of execution of judgment, or from execution of a judgment, or
other legal process or proceeding for the giving of any relief or for the
enforcement of a judgment in any such court, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
the U.S. Purchase Agreement or the International Purchase Agreement, and, to the
extent that the Selling Stockholder or any of Selling Stockholder's properties,
assets or revenues may have or hereinafter become entitled to any such right of
immunity in any such court in which proceedings may at any time be commenced,
the Selling Stockholder has waived or has agreed to waive such right to the
extent permitted by law and has consented to such relief and enforcement as
provided in Section 14 of the U.S. Purchase Agreement and the International
Purchase Agreement.
(vii) the courts of the Netherlands Antilles will recognize
and give effect to the choice of law of the State of New York as the law
governing the U.S. Purchase Agreement and the International Purchase Agreement;
the Selling Stockholder has the power to submit, and pursuant to the U.S.
Purchase Agreement and the International Purchase Agreement has legally,
validly, effectively and irrevocably submitted, to the nonexclusive personal
jurisdiction of any federal or state court in the Borough of Manhattan, City of
New York, State of New York, and has the power to designate, appoint and
empower, and pursuant to the separate written instrument referred to in Section
14 of the Purchase Agreement, has legally, validly, effectively and irrevocably
designated, appointed and empowered, an agent for
B-2
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<PAGE>
service of process for any suit or proceeding based on or arising under the
U.S. Purchase Agreement or the International Purchase Agreement in any federal
or state court in the Borough of Manhattan, City of New York, State of New York,
as provided in Section 14 of the Purchase Agreement.
(viii) the Underwriters are each entitled to sue as plaintiff
in a court of the Netherlands Antilles for the enforcement of their respective
rights under the U.S. Purchase Agreement or the International Purchase Agreement
against the Selling Stockholder and such access to the courts of the
Netherlands Antilles will not be subject to any conditions which are not
applicable to residents of the Netherlands Antilles or a company incorporated in
the Netherlands Antilles, other than the requirements to post a bond of
guarantee with respect to court costs and legal fees if any such party does not
own real property in the Netherlands Antilles.
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<PAGE>
[FORM OF LOCK-UP FROM DIRECTORS AND OFFICERS PURSUANT TO
SECTION 5(i)]
EXHIBIT C
, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Donaldson, Lufkin & Jenrette Securities
Corporation
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Valassis
Communications, Inc.
------------------------------------
Ladies and Gentlemen:
The undersigned, a stockholder and an officer and/or director
of Valassis Communications, Inc., a Delaware corporation (the "Company"),
understands that Merrill Lynch & Co., Merrill Lynch, Pierce, Fencer & Smith
Incorporated ("Merrill Lynch") and Morgan Stanley & Co. Incorporated, Bear,
Stearns & Co. Inc., and Donaldson, Lufkin & Jenrette Securities Corporation
propose to enter into a U.S. Purchase Agreement and an International Purchase
Agreement (the "Purchase Agreements") with the Company and the Selling
Stockholder providing for the public offering of shares (the "Securities") of
the Company's common stock, par value $.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder and an officer and/or director of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with each underwriter to be
named in the Purchase Agreements that, during a period of 120 days from the date
of each of the Purchase Agreements, the undersigned will not, without the prior
written consent of Merrill Lynch, directly or indirectly, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, pur-
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<PAGE>
chase any option or contract to sell, grant any option, right or warrant for the
sale of, or otherwise dispose of or transfer, directly or indirectly, any
shares of the Company's Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, in each case, whether now owned
or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or file any
registration statement under the Securities Act of 1933, as amended, 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 is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:__________________________
Print Name:_________________________
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<PAGE>
Draft of June 26, 1997
================================================================================
VALASSIS COMMUNICATIONS, INC.
(a Delaware corporation)
3,250,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Dated: July , 1997
================================================================================
<PAGE>
<PAGE>
VALASSIS COMMUNICATIONS, INC.
(a Delaware corporation)
3,250,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
, 1997
MERRILL LYNCH INTERNATIONAL
Morgan Stanley & Co. International Limited
Bear, Stearns International Limited
Donaldson, Lufkin & Jenrette Securities
Corporation
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY England
Ladies and Gentlemen:
Valassis Communications, Inc., a Delaware corporation (the
"Company") and Conpress International (Netherlands Antilles) N.V., a Netherlands
Antilles private limited liability company (the "Selling Stockholder") confirm
their respective agreements with Merrill Lynch International ("Merrill Lynch")
and each of the other international Underwriters named in Schedule A hereto
(collectively, the "International Underwriters," which term shall also include
any underwriter substituted as hereinafter provided in Section 10 hereof), for
whom Merrill Lynch, Morgan Stanley & Co. International Limited, Bear, Stearns
International Limited and Donaldson, Lufkin & Jenrette Securities Corporation
are acting as representatives (in such capacity, the "Lead Managers"), with
respect to (i) the sale by the Selling Stockholder and the purchase by the Lead
Managers, acting severally and not jointly, of the respective numbers of shares
of Common Stock, par value $.01 per share, of the Company ("Common Stock") set
forth in Schedule A hereto and (ii) the grant by the Selling Stockholder 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 487,500
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 3,250,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Underwriters and all or any
part
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<PAGE>
of the 487,500 shares of Common Stock subject to the option described in
Section 2(b) hereof (the "International Option Securities") are hereinafter
called, collectively, the "International Securities."
It is understood that the Company and the Selling Stockholder
are concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Selling Stockholder of an
aggregate of 9,750,000 shares of Common Stock (the "Initial U.S. Securities")
through arrangements with certain underwriters in the United States and Canada
(the "U.S. Underwriters") for which Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc. and
Donaldson, Lufkin & Jenrette Securities Corporation are acting as
representatives (the "U.S. Representatives") and the grant by the Selling
Stockholder to the U.S. Underwriters, acting severally and not jointly, of an
option to purchase all or a part of the U.S. Underwriters' pro rata portion of
up to 1,462,500 additional shares of Common Stock 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 Stockholder is 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 U.S. Securities
and the Initial International Securities are hereinafter collectively called the
"Initial Securities," and the U.S. Securities, and the International Securities
are hereinafter collectively called the "Securities."
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 & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Stockholder understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement has
been executed and delivered.
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<PAGE>
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-28685) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). Two forms of prospectus are to
be used in connection with the offering and sale of the Securities: one relating
to the U.S. Securities (the "Form of U.S. Prospectus") and one relating to the
International Securities (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 captions
"Underwriting" and "Available Information" and the inclusion in the Form of
International Prospectus of a section under the caption "Certain United States
Tax Consequences to Non-U.S. Holders." The information included in any such
prospectus or in any such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each Form of U.S. Prospectus and Form of International Prospectus
used before such registration statement became effective, and any prospectus
that omitted, as applicable, the Rule 430A Information or the Rule 434
Information, that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "preliminary prospectus."
Such registration statement, including the exhibits thereto, schedules thereto,
if any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective and including
the Rule 430A Information and the Rule 434 Information, as applicable, is
herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final Form of U.S. Prospectus and the final Form of International
Prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the forms first furnished to
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<PAGE>
the Underwriters for use in connection with the offering of the Securities are
herein called the "U.S. Prospectus" and the "International Prospectus,"
respectively, and collectively, the "Prospectuses." If Rule 434 is relied on,
the terms "U.S. Prospectus" and "International Prospectus" shall refer to the
preliminary U.S. Prospectus dated June 11, 1997 and the preliminary
International Prospectus, dated June 11, 1997, respectively, each together with
the applicable Term Sheet and all references in this Agreement to the date of
such Prospectuses shall mean the date of the applicable Term Sheet. For purposes
of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the U.S. Prospectus, the International Prospectus or
any Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus (including the Form of
U.S. Prospectus and Form of International Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and Form of International Prospectus) or
the Prospectuses, as the case may be; and all references in this 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 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager and the Selling
Stockholder 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 and the Selling
Stockholder, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
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<PAGE>
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.
At the respective times the Registration Statement, any Rule
462(b) 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
Registration Statement, the Rule 462(b) 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 the Prospectuses nor any amendments or supplements thereto at
the time the Prospectuses or any such amendment or supplement was
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. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectuses made in reliance upon and in
conformity with information furnished to the Company in writing by any
International Manager through the Global Coordinator expressly for use
in the Registration Statement or either of the Prospectuses.
Each preliminary prospectus and the 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 1933 Act,
complied when so filed in all material respects with 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
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<PAGE>
<PAGE>
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 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. Ernst & Young LLP, the
accountants who certified the financial statements and supporting
schedules included in the Registration Statement 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 and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with United States 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 have been compiled 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 or
contemplated thereby, (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,
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<PAGE>
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 which are required to be disclosed in the Registration
Statement and the Prospectuses, 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 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 reasonably be expected to have a Material
Adverse Effect.
(vii) Good Standing of Subsidiaries. The only subsidiaries of
the Company, considered in the aggregate as a single subsidiary, do not
constitute a "significant subsidiary as defined in Rule 1-02 of
Regulation S-X under the 1933 Act.
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company at March 31, 1997 was as is set forth in
the Prospectuses under the caption "Capitalization". The shares of
issued and outstanding capital stock, including the Securities to be
purchased by the Underwriters from the Selling Stockholder, have been
duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock,
including the Securities to be purchased by the Underwriters from the
Selling Stockholder, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Authorization of Agreements. This Agreement and
the U.S. Purchase Agreement have been duly authorized,
executed and delivered by the Company.
(x) Absence of Manipulation. None of the Company or its
subsidiaries or any of their respective officers and directors has
taken, or will take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result
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<PAGE>
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(xi) Authorization and Description of Securities. 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 solely by reason
of being such a holder.
(xii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
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 or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such violations
or defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the U.S.
Purchase Agreement by the Company and the consummation by the Company
of the transactions contemplated by this Agreement and the U.S.
Purchase Agreement, and this 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 or any subsidiary pursuant to, the Agreements and
Instruments the effect of which conflict breach, default, Repayment
Event, lien, charge or encumbrance would reasonably be expected to have
a Material Adverse Effect, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any
subsidiary or any law, statute, rule, regulation, judgment, order, writ
or decree applicable to the Company or any subsidiary or any of their
assets, properties or operations of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of their 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)
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<PAGE>
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(xiii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiv) 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 or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which, if
determined adversely to the Company, would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated in this
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 or
any subsidiary 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, could not reasonably be expected to result in a Material
Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectuses or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(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 under this Agreement or the U.S. Purchase Agreement,
in connection with the offering or sale of the Securities by the
Selling Stockholder under this Agreement or the U.S. Purchase
Agreement, or the consummation of the transactions
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<PAGE>
contemplated by this 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 or state or foreign securities or blue
sky laws.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such 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 as described in the
Prospectuses and are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to possess
such Governmental Licenses or to comply therewith would not, singly or
in the aggregate, reasonably be expected to have 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 neither the
Company nor any of its subsidiaries has 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 reasonably be
expected to result in a Material Adverse Effect.
(xviii) Title to Property. Except as set forth in the Company's
Revolving Credit Agreement, dated as of August 11, 1995, as amended, by
and among the Company, the Banks (as defined therein) and Comercia
Bank, as Agent for the Banks (the "Credit Agreement") and the schedules
thereto, the Company and its subsidiaries have good and marketable
title to all real property owned by the Company and its subsidiaries
and good title to all other properties owned by them, 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) would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect; and all of the leases and subleases material to the business
of the Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the Prospectuses, are in full force and effect, and
neither the Company nor any subsidiary has any notice of any material
claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of such leases or
subleases, or affecting or questioning the rights of the Company or
such
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subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xix) Compliance with Tax Laws. All material income, payroll
and sales tax returns required to be filed by the Company or any of its
subsidiaries, in any jurisdiction, have been so filed, and all material
taxes, including related withholding taxes, penalties and interest,
assessments and other charges due or claimed to be due from such
entities have been paid, other than those being contested in good faith
and for which adequate reserves have been provided or those currently
payable without penalty or interest.
(xx) Maintenance of Insurance. The Company and each of its
subsidiaries maintain insurance policies or reserves with respect to
such insurable properties, potential liabilities and occurrences that
merit or require catastrophic insurance in amounts deemed adequate in
the reasonable opinion of the Company's management; all such insurance
policies are in full force and effect.
(xxi) Investment Company Act. The Company is not, and upon the
sale of the Securities as herein contemplated will not be, 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").
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is 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 and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are
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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 or any of its subsidiaries 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 affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
(xxiii) Listing. All of the Securities are listed on
the New York Stock Exchange.
(xxiv) U.S. Real Property Interest. The Securities do
not constitute a "United States real property interest" as
defined in U.S. Internal Revenue Code Section 897(c)(1).
(b) Representations and Warranties by the Selling Stockholder.
The Selling Stockholder represents and warrants to each International Manager
and the Company as of the date hereof, as of the Closing Time, and, if the
Selling Stockholder is selling Option Securities on a Date of Delivery, as of
each such Date of Delivery, and agrees with each International Manager, as
follows:
(i) Good Standing of the Selling Stockholder. The Selling
Stockholder has been duly organized and is validly existing and is in
good standing as a private limited liability company under the laws of
the Netherlands Antilles.
(ii) Accurate Disclosure. To the extent that any statements or
omissions made in the Registration Statement or Prospectuses, or any
amendment or supplement thereto, are made in reliance and in conformity
with written information furnished to the Company by or on behalf of
the Selling Stockholder expressly for use therein, each such part of
the Registration Statement, when it became effective, did 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, and each such part of either of the
Prospectuses, or of any amendments or supplements thereto, at the time
it was issued and as of the Closing Time, did not include nor will it
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
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misleading; the Selling Stockholder is not prompted to sell the
Securities to be sold by the Selling Stockholder hereunder in a manner
which would constitute a violation of the 1933 Act, the 1934 Act or the
respective rules and regulations thereunder by any material nonpublic
information concerning the Company or any subsidiary of the Company
known to the Selling Stockholder which is not set forth in the
Prospectuses. The Company and the Underwriters acknowledge that the
statements relating to such Selling Stockholder under the heading
"Prospectus Summary--The Selling Stockholder and Related Transactions"
and "Principal and Selling Stockholders" in the Registration Statement
and the Prospectuses constitute the only information furnished by or
on behalf of such Selling Stockholder for inclusion in the
Registration Statement or any Prospectus.
(iii) Authorization of Agreements. The Selling Stockholder has
the full right, power and authority to enter into this Agreement and
the U.S. Purchase Agreement and to sell, transfer and deliver the
Securities to be sold by the Selling Stockholder hereunder and
thereunder. The execution and delivery of this Agreement and the U.S.
Purchase Agreement and the sale and delivery of the Securities to be
sold by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement and compliance by the Selling Stockholder with
its obligations hereunder and thereunder have been duly authorized by
the Selling Stockholder 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 under, or result in the creation
or imposition of any tax, lien, charge or encumbrance upon the
Securities to be sold by the Selling Stockholder or any property or
assets of the Selling Stockholder pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease
or other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder may be bound, or to which any
of the property or assets of the Selling Stockholder is subject the
effect of which conflict, breach, default, lien, charge or encumbrance
would reasonably be expected to have a material adverse effect on the
ability of the Selling Stockholder to consummate the transactions
contemplated hereby or by the U.S. Purchase Agreement, nor will such
action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of the Selling Stockholder,
if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government in-
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strumentality or court, domestic or foreign, having jurisdiction over
the Selling Stockholder or any of its properties.
(iv) Good and Valid Title. The Selling Stockholder has and
will at the Closing Time and, if any Option Securities are purchased,
on the Date of Delivery have good and valid title to the Securities to
be sold by the Selling Stockholder hereunder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement and the
U.S. Purchase Agreement and other than the pledges of such Securities
to Westpac Custodian Nominees Limited ("Westpac") as described in the
Prospectuses, which pledges shall be fully released at the Closing Time
with respect to the Securities or, with respect to Option Securities,
on the Date of Delivery; and upon delivery of such Securities and
payment of the purchase price therefor as herein and therein
contemplated, 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 the Selling Stockholder,
free and clear of any security interest, mortgage, pledge, lien,
charge, claim, equity or encumbrance of any kind.
(v) Absence of Manipulation. None of the Selling
Stockholder, its affiliates or any of their respective officers or
directors has taken, and none will 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.
(vi) 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 performance by the
Selling Stockholder of its obligations under this Agreement or the
U.S. Purchase Agreement, or in connection with its sale and delivery
of the Securities under this Agreement or the U.S. Purchase Agreement
or the consummation of the transactions contemplated by this Agreement
and 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 or foreign securities or blue sky laws.
(vii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by the Selling
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Stockholder pursuant to this Agreement and the U.S. Purchase
Agreement, in suitable form for transfer by delivery or accompanied by
duly executed instruments of transfer or assignment in blank with
signatures guaranteed, have been obtained and will be made available
for delivery to the Underwriters pursuant to this Agreement and the
U.S. Purchase Agreement.
(viii) No Association with NASD. Neither the Selling
Stockholder nor any of its affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section 1(m) of the By-laws of the National
Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc. which will participate
in the offering or the distribution of the Securities.
(ix) No Transaction Taxes. None of (i) the U.S. Purchase
Agreement or the U.S. Purchase Agreement or (ii) the issuance, sale and
delivery of the Securities to the Underwriters upon payment therefor as
contemplated by this Agreement and the U.S. Purchase Agreement are
subject to any registration tax stamp duty or similar tax, duty, impost
or levy imposed by any governmental agency of the Netherlands Antilles
or any political subdivision thereof.
(x) Waiver of Immunities. The Selling Stockholder and its
obligations under this Agreement and the U.S. Purchase Agreement are
subject to civil and commercial law and suit in the Netherlands
Antilles and neither the Selling Stockholder nor any of its properties,
assets or revenues has any right of immunity under the laws of the
Netherlands Antilles or New York from any legal action, suit or
proceeding, from the giving of any relief in any such legal action,
suit or proceeding, from setoff or counterclaim, from the jurisdiction
of any court of the Netherlands Antilles, New York or the United
States, from service of process, attachment upon or prior to judgment,
or from execution of a judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of a judgment, in
any such court, with respect to its obligations, liabilities or other
matter arising out of or in connection with this Agreement or the U.S.
Purchase Agreement and, to the extent that the Selling Stockholder or
any of the Selling Stockholder's properties, assets or revenues may
have or may hereafter become entitled to any such right of immunity in
any such court in which any such proceedings may at any time be
commenced, the Selling Stockholder has waived or will waive
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such right to the extent permitted by law and has consented to such
relief and enforcement as provided in Section 14.
(xi) Consent to Jurisdiction; Appointment of Agent for Service
of Process. The Selling Stockholder has the power to submit, and
pursuant to this Agreement and the International Purchase Agreement has
legally, validly, effectively and irrevocably submitted to the personal
jurisdiction of any federal or state court in the Borough of Manhattan,
City of New York, State of New York, and has the power to designate,
appoint and empower, and pursuant to the separate written instrument
referred to in Section 14, has legally, validly, effectively and
irrevocably designated, appointed and empowered, an agent for service
of process for any suit or proceeding based on or arising under this
Agreement or the International Purchase Agreement in any federal or
state court in the Borough of Manhattan, City of New York, State of New
York, as provided in Section 14.
(xii) Enforceability of New York Judgment. There is no reason
why the enforcement in the Netherlands Antilles of a judgment in
respect of this Agreement or the International Purchase Agreement
would be contrary to the laws of the Netherlands Antilles, national
sovereignty or public policy or "good morals" (as set forth in the laws
of the Netherlands Antilles) and the Selling Stockholder is not aware
of any provision of this Agreement or the U.S. Purchase Agreement
which would for any reason not be upheld by the courts of the
Netherlands Antilles.
(xiii) No Real Property Interest. The Securities do
not constitute a "United States real property interest" as
defined in U.S. Internal Revenue Code section 897(c)(1).
(c) Officer's Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby; and any certificate signed by or on behalf of the
Selling Stockholder as such and delivered to the Lead Managers or to counsel for
the International Managers shall be deemed a representation and warranty by the
Selling Stockholder as to the matters covered thereby.
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SECTION 2. Sale and Delivery to International
Managers; Closing.
(a) Initial Securities. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Stockholder agrees to sell to each International Manager,
severally and not jointly, and each International Manager, severally and not
jointly, agrees to purchase from the Selling Stockholder, at the price per share
set forth in Schedule B, that proportion of the number of Initial International
Securities set forth in Schedule A, plus any additional number of Initial
International Securities which such International Manager may become obligated
to purchase pursuant to the provisions of Section 10 hereof, bears to the total
number of Initial Securities, subject, in each case, to such adjustments among
such International Managers as the Lead Managers in their sole discretion shall
make to eliminate any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Selling Stockholder hereby grants an option to
the International Managers, severally and not jointly, to purchase up to an
additional 1,462,500 shares of Common Stock, at the price per share set forth in
Schedule B, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial International Securities but
not payable on the International Option Securities. 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 Lead Managers to the Selling
Stockholder setting forth 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 (a "Date of Delivery") shall be determined by
the Lead Managers, but shall not be later than seven full business days after
the exercise of said option, unless otherwise agreed by the Lead Managers and
the Selling Stockholder, 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, 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
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International Securities, subject in each case to such adjustments as the Lead
Managers in their 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 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 Lead Managers and the Company and the
Selling Stockholder, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) 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 Lead Managers and the Company and the
Selling Stockholder (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, and delivery of certificates 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 Lead Managers and the Company and the Selling
Stockholder, on each Date of Delivery as specified in the notice from the Lead
Managers to the Company and the Selling Stockholder.
Payment shall be made to the Selling Stockholder by wire
transfer of immediately available funds to a bank account designated to the
Global Coordinator not later than two business days preceding the Closing Time
by the Selling Stockholder against delivery to the Lead Managers for the
respective accounts of the International Managers of certificates for the
Securities to be purchased by them. It is understood that each International
Manager has authorized the Lead Managers, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Initial
International Securities and the International Option Securities, if any, which
it has agreed to purchase. 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 for
the Initial International Securities and the International Op-
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tion Securities, if any, shall be in such denominations and registered in such
names as the Lead Managers may request in writing at least two full business
days before the Closing Time or the relevant Date of Delivery, as the case may
be. The certificates for the Initial International Securities and the
International Option Securities, if any, will be made available for examination
and packaging by the Lead 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.
(a) Covenants. (a) Covenants of the Company. The Company
covenants with each International Manager and with the Selling Stockholder as
follows:
(i) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(a)(ii), will comply with
the requirements of Rule 430A or Rule 434, as applicable, and will
notify the Lead Managers and the Selling Stockholder 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 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.
(ii) Filing of Amendments. The Company will give the Lead
Managers and the Selling Stockholder notice of its intention to file or
prepare any amendment to the Registration Statement (including any
filing under Rule
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462(b)), any Term Sheet or any amendment, supplement or revision to
either the prospectuses 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 furnish the Lead 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 Lead Managers or counsel for the
International Managers shall object.
(iii) Delivery of Registration Statements. The Company has
furnished or will deliver to the Lead Managers and the Selling
Stockholder and their respective counsel, 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 documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents
and certificates of experts, and will also deliver to the Lead
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 and the Selling Stockholder 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.
(iv) 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, 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 Manager 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.
(v) 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
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Securities as contemplated in this Agreement, the U.S. Purchase
Agreement and in 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 opinion of counsel for the Lead
Managers or for the Company, to amend the Registration Statement or
amend or supplement the Prospectuses 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
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectuses 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(a)(ii), 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 Lead Managers such number of copies of
such amendment or supplement as the Lead Managers may reasonably
request.
(vi) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Lead Managers, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the
Lead Managers may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; 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 year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement.
(vii) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order
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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.
(viii) Restriction on Sale of Securities. During a period of
120 days from the date of the Prospectuses, the Company will not,
without the prior written consent of Merrill Lynch, (i) directly or
indirectly, 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 or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into
or exercisable or exchangeable 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 such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Securities to be sold under this Agreement and the
International Purchase Agreement, (B) any shares of Common Stock issued
by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to
in the Prospectuses, (C) any shares of Common Stock issued or options
to purchase Common Stock granted pursuant to existing employee benefit
plans of the Company referred to in the Prospectuses or incorporated by
reference therein or in any Proxy Statement filed with the Commission,
in each case, as in effect on the date hereof or (D) any shares of
Common Stock issued pursuant to any non-employee director stock plan
or dividend reinvestment plan, in each case, as in effect on the date
hereof.
(ix) 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 within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(x) Reports Furnished. For a period of two years after the
Closing Time, the Company will furnish to you and, upon request, to
each other Underwriter, copies of all annual reports, quarterly reports
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the Com-
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mission, and such other documents, reports and information as shall be
furnished by the Company to its stockholders generally.
(b) Covenants of the Selling Stockholder. The Selling
Stockholder covenants with each U.S. Underwriter as follows:
(i) Restriction on Sale of Securities. During a period of
120 days from the date of the Prospectuses, the Selling Stockholder
will not, without the prior written consent of Merrill Lynch, (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 or otherwise transfer or dispose of,
directly or indirectly, any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, in
each case, whether now owned or hereafter acquired, 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 or 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 such other securities, in cash
or otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder or under the U.S. Purchase Agreement,
(B) sales of Common Stock to the Company pursuant to the Option
Agreement dated May 9, 1996 among the Company, Conpress Cayman LDC and
Consolidated Press International Limited, as assigned tot he Selling
Stockholder by an assignment dated June 5, 1997, as in effect on the
date hereof (provided that such sales do not exceed, in the aggregate,
808,400 shares), (C) the pledge of Common Stock to a bank pursuant to a
credit facility of the Selling Stockholder or any of its affiliates and
(D) any transfers to affiliates of the Selling Stockholder.
(ii) Indemnification for Stamp Taxes. The Selling Stockholder
agrees to indemnify and hold harmless the Underwriters against any
documentary, stamp or similar transfer or issue tax, or fees, including
any interest and penalties, which are or may be required to be paid on
or in connection with the Offering and sale of the Securities by the
Underwriters or on the execution or delivery of this Agreement and the
U.S. Purchase Agreement.
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SECTION 4. Payment of Expenses.
(a) Expenses. Subject to Section 4(b) below, the Company and
the Selling Stockholder will pay or cause to be paid all expenses incident to
the performance of their obligations under this 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 preparation, printing and delivery to the Underwriters of this
Agreement, the 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, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the International
Managers and the International Managers, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors, (v) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(a)(vi) 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, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets 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) the fees and expenses incurred in connection with any listing of any
Securities on the New York Stock Exchange, (x) the filing fees incident to, and
the reasonable fees and disbursements of counsel to the Underwriters in
connection with the review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Securities, (xi) any stamp duties, capital
duties and stock transfer taxes, if any, payable upon the sale of the Securities
to the Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, and (xii) the fees and disbursements of
the Selling Stockholder's counsel, accountants and other advisors.
(b) Expenses paid by the Selling Stockholder. The Company and
the Selling Stockholder have agreed that the Selling Stockholder will be
responsible for the payment of all expenses incident to the performance of its
obligations under, and the consummation of the transactions contemplated by this
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Agreement, excluding the fees and disbursements of the Company's counsel,
accountants and other advisors.
(c) Termination of Agreement. If this Agreement is terminated
by the Lead Managers in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Company and the Selling Stockholder shall
reimburse the International Managers for all of their out-of-pocket expenses,
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 Stockholder 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 Stockholder contained in Section 1 hereof or in certificates of any
officer of the Company or any subsidiary of the Company or on behalf of the
Selling Stockholder delivered pursuant to the provisions hereof, to the
performance by each of the Company and the Selling Stockholder of its covenants
and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has
become effective and at 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 Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing
Time, of McDermott, Will & Emery, counsel for the Company, in form and
substance reasonably satisfactory to counsel for the International Man-
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agers, together with signed or reproduced copies of such letter for
each of the other International Managers to the effect set forth in
Exhibit A hereto and to such further effect as counsel to the
International Managers may reasonably request.
(c) Opinions of Counsel for the Selling Stockholder. At
Closing Time, the Lead Managers shall have received the favorable
opinion, dated as of Closing Time, of Debevoise & Plimpton, U.S.
counsel for the Selling Stockholder, in form and substance reasonably
satisfactory to counsel for the International Managers, together with
signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit B-1 hereto
and to such further effect as counsel to the International Managers
may reasonably request. In addition, at Closing Time, the Lead Managers
shall have received the favorable opinion, dated as of Closing Time, of
Halley, Blaauw & Navarro, special Netherlands Antilles counsel for the
Selling Stockholder, in form and substance satisfactory to counsel for
the International Managers, together with signed or reproduced copies
of such letter for each of the other International Manager to the
effect set forth in Exhibit B-2 hereto and to such further effect as
counsel to the International Managers may reasonably request.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Cahill Gordon & Reindel, counsel for the
International Managers, together with signed or reproduced copies of
such letter for each of the other International Managers with respect
to the matters set forth in clauses (i), (ii), (v), (vii), (viii),
(ix), (xi) and (xiv) (solely as to the information in the Prospectuses
under "Description of Common Stock") and the penultimate paragraph of
Exhibit A hereto. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law
of the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Lead Managers. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public
officials.
(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 condi-
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tion, 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, and the Lead Managers and the Selling Stockholder shall have
received a certificate of 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 are contemplated by the Commission.
(f) Certificate of Selling Stockholder. At Closing Time, the
Lead Managers shall have received a certificate of a managing director
of the Selling Stockholder, dated as of Closing Time, to the effect
that (i) the representations and warranties of the Selling Stockholder
contained in Section 1(b) hereof are true and correct in all respects
with the same force and effect as though expressly made at and as of
Closing Time and (ii) the Selling Stockholder has complied in all
material respects with all agreements and all conditions on its part to
be performed under this Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Lead Managers shall have received from Ernst &
Young LLP a letter dated such date, in form and substance satisfactory
to the Lead 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 Lead
Managers shall have received from Ernst & Young 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 (four, if the pricing occurs after 4:30 p.m. (Eastern
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time) on any given day) business days prior to Closing Time.
(i) Lock-up Agreements. At the date of this Agreement, the
Lead Managers shall have received an agreement substantially in the
form of Exhibit C hereto signed by the persons listed on Schedule C
hereto.
(j) Release of Pledge. The pledges (the "Pledges") of the
Securities by the Selling Stockholder to Westpac, as described in the
Prospectuses and pursuant to a Stock Pledge Agreements between the
Selling Stockholder and Westpac, will be fully and completely released
on or prior to the Closing Time. The Lead Managers shall have received
such documents as reasonably required to evidence the full and complete
release by Westpac of the Pledges to Westpac.
(k) Consummation of Sale of U.S. Securities. The sale of the
U.S. Securities pursuant to the U.S. Purchase Agreement shall have been
consummated simultaneously with the sale of the International
Securities hereby.
(l) No Objection. The NASD shall not have raised any objection
with respect to the fairness and reasonableness of the underwriting
terms and arrangements contemplated by this Agreement.
(m) Treasury Certificate. The Company shall have furnished to
the Selling Stockholder and the U.S. Representatives a certificate
dated as of the Closing Time (x) pursuant to U.S. Treasury Regulation
section 1.897-2(g) stating that the Securities do not constitute a
United States real property interest and (y) stating that the Company
has complied with the requirements of U.S. Treasury Regulation section
1.897-2(h)(2) or 1.897-2(h)(4) in relation to the statement referred to
in clause (x) of this paragraph.
(n) 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 Stockholder contained herein and the
statements in any certificates furnished by the Company, any subsidiary
of the Company and the Selling Stockholder hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Lead Managers and, in the case of items referred to in
clauses
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(i), (vi) and (vii) of this Section, the Selling Stockholders, 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 Selling Stockholder. A certificate, dated
such Date of Delivery, of a managing director of the Selling
Stockholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
McDermott, Will & Emery, counsel for the Company, in form and
substance reasonably satisfactory to 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(b)
hereof.
(iv) Opinions of Counsel for the Selling Stockholder. The
favorable opinion of each of (i) Debevoise & Plimpton, U.S. counsel for
the Selling Stockholder, and (ii) Halley, Blaauw & Navarro, special
Netherlands Antilles counsel for the Selling Stockholder, each opinion
in form and substance reasonably satisfactory to 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(c) hereof.
(v) Opinion of Counsel for Underwriters. 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 Ernst & Young
LLP, in form and substance satisfactory to the Lead Managers and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Lead Managers pursuant to Section 5(h)
hereof, except that the "specified date" in the letter
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furnished pursuant to this paragraph shall be a date not more than
three days prior to such Date of Delivery.
(vii) Treasury Certificate. A certificate dated such Date of
Delivery to the same effect as the certificate required by Section 5(m)
hereof.
(o) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the International Managers shall have been
furnished with such information, certificates and documents and
opinions as they may reasonably request for the purpose of enabling
them to pass upon the issuance and 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 corporate proceedings taken by
the Company and the Selling Stockholder in connection with the
issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the U.S.
Representatives 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 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 U.S. Representatives by notice to
the Company and the Selling Stockholder 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 6 and 7 shall
survive any such termination and remain in full force and effect.
(q) Selling Stockholder. The certificates and letters to be
delivered to the Selling Stockholder pursuant to subsections (e), (g),
(h), (m) and (n)(i), (vi) and (vii) of this Section 5 shall be deemed
to be adequately delivered for purposes of this Agreement and the U.S.
Purchase Agreement if such certificate or letter is addressed to the
Selling Stockholder and is otherwise substantially similar to the
corresponding certificate or letter to be delivered to the
Underwriters.
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SECTION 6. Indemnification.
(a) Indemnification of International Managers by the Company.
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 (collectively, the
"International Manager Indemnities") 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), including the Rule
430A Information and the Rule 434 Information, if applicable, 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(e) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to the fifth sentence of Section 6(d), the fees
and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred 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 (i) 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 al-
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leged 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
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectuses (or any amendment
or supplement thereto) and (ii) that, as to any preliminary prospectus, this
indemnity agreement shall not inure to the benefit of any International Manager
on account of any loss, claim, damage, liability or action arising from the fact
that such International Manager sold Securities to a person as to whom the
Company shall sustain the burden of proving that such person was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then amended or supplemented in any case
where such delivery is required by the 1933 Act if the Company has previously
furnished copies thereof in sufficient quantity to such Underwriter and the
loss, claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in such preliminary
prospectus, which was corrected in the Prospectus or in the Prospectus as then
amended or supplemented and the claims asserted by such person do not include
allegations of other untrue statements or omissions made in such preliminary
prospectus which was not corrected in the Prospectus or in the Prospectus as
then amended or supplemented which allegations are upheld by a final judgment.
(b) Indemnification of the International Managers by the
Selling Stockholder. Subject to Section 6(g), the Selling Stockholder agrees to
indemnify and hold harmless each of the International Manager Indemnities 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 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 thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Selling Stockholder expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectuses (or any amendment or supplement thereto).
(c) Indemnification of Company, Directors and Officers and
Selling Stockholder. Each International Manager severally agrees to indemnify
and hold harmless the Company, its
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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 (collectively, the "Company
Indemnities"), and the Selling Stockholder and each person, if any, who controls
the Selling Stockholder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act (collectively, the "Selling Stockholder Indemnities")
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 thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectuses (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Merrill Lynch
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto).
(d) 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) and 6(b) above, counsel to the indemnified parties
shall be selected by Merrill Lynch, and, in the case of parties indemnified
pursuant to Section 6(c) above, counsel to any Company Indemnitees shall be
satisfactory to the Company and counsel to any Selling Stockholder Indemnitees
shall be satisfactory to the Selling Stockholder. If an indemnifying party so
elects within a reasonable time after receipt of such notice, such indemnifying
party, jointly with any other indemnifying parties receiving the notice required
under the first sentence hereof, may assume the defense of such action at its
own expense with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereaf-
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ter in connection with such action. 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 on all claims that were or could have been made by all parties to such
claim, 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.
(e) 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, provided, however, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, an indemnifying party shall not be
liable for any settlement of the nature contemplated by this Section 6(e)
effected without its written consent if (x) such indemnifying party reimburses
such indemni fied party in accordance with such request to the extent it
considers such request to be reasonable; and (y) such indemnifying party
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
(f) Other Agreements with Respect to Indemnification. The
provisions of this Section shall not affect any agreement among the Company and
the Selling Stockholder with respect to indemnification.
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(g) Selling Stockholder's Limitation. The Selling Stockholder
shall not be responsible for the payment of an amount, pursuant to this Section
6, which exceeds the aggregate gross proceeds (net of underwriting discount) to
the Selling Stockholder from the sale of the Securities by the Selling
Stockholder hereunder.
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
severally 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 Stockholder on the one hand and the
International Managers on the other hand from the offering of the Securities
pursuant to this 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 Stockholder 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
Stockholder on the one hand and the International Managers on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Stockholder and the total
underwriting discount received by the International Managers, in each case as
set forth on the cover of the International Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of the International Securities as set forth on such
cover.
The relative fault of the Company and the Selling Stockholder
on the one hand and the International Managers on the other hand 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 Stockholder or by the International Managers and the parties' relative
intent, knowledge, access to information
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and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholder and the 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 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 foregoing provisions of this Section 7,
(A) 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 and (B) the Selling Stockholder shall
not be required to contribute any amount under this Section 7 (i) in excess of
the amount by which the gross proceeds (net of underwriting discount) to the
Selling Stockholder from the sale of the Securities by the Selling Securities
hereunder exceeds the aggregate amount that the Selling Stockholder has
otherwise paid pursuant to Section 6(b) and (ii) except to the extent the
Selling Stockholder would have been liable to indemnify under Section 6 if such
indemnification were enforceable under applicable law.
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 the Selling Stockholder within the meaning of Section 15
of the 1933 Act or Section 20
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of the 1934 Act shall have the same rights to contribution as the Company or the
Selling Stockholder, 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 U.S. Securities set forth opposite their respective
names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement
among the Company and the Selling Stockholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Stockholder 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 Stockholder, and shall survive delivery of
the U.S. Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Managers may terminate this
Agreement, by notice to the Company and the Selling Stockholder, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement 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 and its subsidiaries considered as one enterprise, 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 Lead 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
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<PAGE>
<PAGE>
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 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 6 and 7 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. 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 Agreement (the "Defaulted Securities"), the Lead 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 Lead
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 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
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 Company and of the Selling Stockholder 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 Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does
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<PAGE>
not result in a termination of the obligation of the International Managers to
purchase and the Company to sell the relevant International Option Securities,
as the case may be, either (i) the Lead Managers or (ii) the Company and the
Selling Stockholder 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
Prospectuses 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 the Selling Stockholder. If the Selling
Stockholder shall fail at Closing Time or at a Date of Delivery to sell and
deliver the number of Securities which the Selling Stockholder is obligated to
sell hereunder then the International Managers may, at the option of the U.S.
Representative's, by notice from the Lead Managers to the Company, terminate
this Agreement without any liability on the fault of any non-defaulting party
except that the provisions of Sections 4, 6 and 7 shall remain in full force and
effect. No action taken pursuant to this Section 11 shall relieve the Selling
Stockholder so defaulting from liability, if any, in respect of such default.
In the event of a default by the Selling Stockholder as
referred to in this Section 11, each of the Lead Managers and the Company shall
have the right to postpone Closing Time or 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 Lead Managers at North Tower,
World Financial Center, New York, New York 10281-1201, attention of Barry P.
Hoffman, Esq., with a copy to Mark Thoman, Esq., McDermott, Will & Emery, 50
Rockefeller Plaza, New York, NY 10020; and notices to the Selling Stockholder
shall be directed to it at c/o 2nd Floor, Block A, Russell Court, Saint
Stephen's Green, Dublin 2, Ireland, with a copy to David Barnett, Esq.,
Consolidated Press Holdings Limited, 54-58 Park Street, Sydney, N.S.W.,
Australia.
SECTION 13. Parties. This Agreement shall each insure to the
benefit of and be binding upon the International Managers, the Company and the
Selling Stockholder and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person,
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<PAGE>
firm or corporation, other than the International Managers, the Company and the
Selling Stockholder 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 Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers, the Company and the Selling
Stockholder 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 Managers shall be deemed to be a successor by reason merely
of such purchase.
SECTION 14. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities. By the execution and delivery of this Agreement and the
U.S. Purchase Agreement, the Selling Stockholder (i) acknowledges that is has,
by separate written instrument, designated and appointed CT Corporation, 1633
Broadway, New York, New York 10019 (the "Agent for Service") and any successor
entity), as its authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to this Agreement or the U.S. Purchase
Agreement or the Prospectuses that may be instituted in any federal or state
court in the Borough of Manhattan, City of New York, State of New York or
brought under federal or state securities laws, and represents and warrants that
the Agent for Service has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding and (iii) agrees
that service of process upon the Agent for Service and written notice of said
service to the Selling Stockholder in accordance with Section 12 shall be deemed
in every respect effective service of process upon the Selling Stockholder, in
any such suit or proceeding. The Selling Stockholder further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments, as may be necessary to continue such designation appointment of
the Agent for Service in full force and effect; provided that the Selling
Stockholder may, and to the extent the Agent for Service ceases to be able to be
served on the basis contemplated herein, shall by written notice to the Lead
Managers, designate such additional or alternative agent for service of process
under this Section 14 that (i) maintains an office in the Borough of Manhattan,
City of New York, State of New York, and (ii) is either (x) counsel for the
Company or U.S. Counsel for the Selling Stockholders or (y) a corporate service
company which acts as agent for service of process for other persons in the
ordinary course of business. Such written notice shall identify the name of
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<PAGE>
such agent for service of process and the address of the office of such agent
for service of process.
SECTION 15. 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 16. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
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<PAGE>
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company and the Selling Stockholder
a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the International Managers, the Company
and the Selling Stockholder in accordance with its terms.
Very truly yours,
VALASSIS COMMUNICATIONS, INC.
By
---------------------------
Name:
Title:
CONPRESS INTERNATIONAL
(Netherlands Antilles) N.V.
By
---------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
BEAR, STEARNS INTERNATIONAL LIMITED
DONALDSON LUFKIN & JENRETTE SECURITIES
CORPORATION
By: MERRILL LYNCH INTERNATIONAL
By:_________________________
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto.
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<PAGE>
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial
International
Name of International Manager Securities
- ----------------------------- ----------
<S> <C>
Merrill Lynch International.....................................................
Morgan Stanley & Co. International Limited......................................
Bear, Stearns International Limited.............................................
Donaldson, Lufkin & Jenrette Securities Corporation.............................
----------
Total........................................................................... 3,250,000
</TABLE>
S-A-1
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<PAGE>
SCHEDULE B
VALASSIS COMMUNICATIONS, INC.
3,250,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The public offering price per share for the In ternational
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 Managers shall be
$_____________, being an amount equal to the public offering price set forth
above less $_____________ per share; provided that the purchase price per share
for any 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 declared by the Company and payable on the
Initial Securities but not payable on the Option Securities.
S-B-1
<PAGE>
<PAGE>
SCHEDULE C
List of persons and entities
subject to lock-up
[TO COME]
S-D-1
<PAGE>
<PAGE>
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and corporate 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 each of the U.S. Purchase Agreement and the
International Purchase Agreement.
(iii) The Company 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, such
states having been identified to us in a certificate of the Company as
the only states in which the Company owns or leases material properties
or conducts material business.
(iv) 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 any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or proxy statements previously filed with the Commission
under the 1934 Act or pursuant to the exercise of convertible
securities or options referred to in the Prospectuses); the Securities
to be purchased by the Underwriters from the Selling Stockholder have
been duly authorized and validly issued and are fully paid and
non-assessable; and none of the Securities was issued in violation of
the preemptive or other similar rights (under law, pursuant to the
Company's charter or by-laws or, to our knowledge, by contract or other
agreement to which the Company is a party).
(v) Under Delaware law, no holder of the Securities is or
will be subject to personal liability solely by reason of being such a
holder.
(vi) The sale of the Securities by the Selling Stockholder is
not subject to any right of first refusal or
A-1
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<PAGE>
other similar right (under law, pursuant to the Company's charter or
by-laws or, to our knowledge, by contract or other agreement to which
the Company is a party) of any securityholder of the Company.
(vii) The U.S. Purchase Agreement and the International
Purchase Agreement have been duly authorized, executed and delivered
by The Company.
(viii) Such counsel has been advised by the Commission that the
Registration Statement, including any Rule 462(b)Registration
Statement, was declared effective under the 1933 Act; any required
filing of the Prospectuses pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and, to
the best of our knowledge, no stop order suspending the effectiveness
of the Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(ix) The Registration Statement, as of its effective date and
including any Rule 462(b) Registration Statement, the Rule 430A
Information and the Rule 434 Information, as applicable, the
Prospectuses, as of their dates and excluding the documents
incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectuses, excluding the documents
incorporated by reference therein, as of their respective effective
or issue dates (other than the financial statements, supporting
schedules and other financial or statistical data included therein or
omitted therefrom, as to which we express no opinion) appeared on their
face to be responsive in all material respects to the requirements of
the 1933 Act and the 1933 Act Regulations; provided that the foregoing
shall not be deemed to be an opinion regarding the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus.
(x) The documents incorporated by reference in the
Prospectuses (other than the financial statements, supporting schedules
and other financial statistical data included therein or omitted
therefrom, as to which we need express no opinion), when they were
filed with the Commission appeared on their face to be responsive in
all material respects to the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder; pro-
A-2
<PAGE>
<PAGE>
vided that the foregoing shall not be deemed to be an opinion regarding
the accuracy, completeness or fairness of the statements contained in
such documents.
(xi) The form of certificate used to evidence the Common
Stock complies in all material respects with all applicable statutory
requirements and with any applicable requirements of the charter and
by-laws of the Company.
(xii) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency, authority or
body, involving the Company or its property of a character required to
be disclosed in the Prospectus which are not described as required or
which might reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated in the U.S. Purchase
Agreement or the International Purchase Agreement or the performance
by the Company of its obligations thereunder.
(xiii) The information in the Prospectuses under "Shares
Eligible for Future Sale", "Principal and Selling Stockholders -
Certain Transactions and Relationships" (except for information
relating to the Option Agreement and the assignment thereof to the
Selling Stockholder) and "Indemnification of Directors and Officers" in
the Registration Statement under Item 15, to the extent that it
constitutes matters of law, summaries of legal matters, the Company's
charter and bylaws or legal proceedings, or legal conclusions, has been
reviewed by us and is correct in all material respects.
(xiv) The capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained
in the Prospectuses under the caption "Description of Common Stock,"
and, to the extent that it constitutes matters of law, summaries of
legal matters, the Company's charter and bylaws or legal proceedings,
or legal conclusions, the information under such caption has been
reviewed by us and is correct in all material respects.
A-3
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<PAGE>
(xv) All statements in the Registration Statement describing
any legal proceeding or contracts or other documents to which the
Company or its subsidiaries are a party fairly summarize such
proceedings, contracts or other documents; to the best of our
knowledge, there are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other documents of a character
required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereto or references thereto fairly
summarize such matters.
(xvi) To the best of our knowledge, neither the Company nor
any subsidiary is in violation of its charter or by-laws and no default
by the Company or any subsidiary exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xvii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign (other than under
the 1933 Act and the 1933 Act Regulations, which have been obtained, or
as maybe required under the securities or blue sky laws of the various
states or foreign countries, as to which we need express no opinion) is
necessary or required of the Company in connection with the due
authorization, execution and delivery of the U.S. Purchase Agreement
and the International Purchase Agreement or for the offering, sale or
delivery of the Securities.
(xviii) Neither the sale of the Securities, nor the execution
and performance of the U.S. Purchase Agreement and the International
Purchase Agreement (A) will contravene any of the provisions of, or
result in a default under, any agreement, franchise, license,
indenture, mortgage, deed of trust, or other instrument of the Company
or any of its subsidiaries known to us (which are listed on Schedule A
hereto and which have been identified to such counsel in a certificate
of the Company as all of the agreements and instruments which are
material to the busi-
A-4
<PAGE>
<PAGE>
ness or financial condition of the Company or any of its subsidiaries)
to which the Company or any subsidiary is a party to by which the
Company or any subsidiary is bound or to which the property of any of
them is subject, and which contravention or default could reasonably be
expected to have a Material Adverse Effect; (B) will violate any of
the provisions of the charter or bylaws of the Company or any of its
subsidiaries or (C) so far as it is known to us, violate any law,
statute, order, judgment, order, writ, decree, rule or regulation of
any regulatory or governmental body having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties, assets or operations (except that we express no opinion
with respect to any Federal, state or foreign securities laws or the
policies underlying such laws).
(xix) The Company is not an "investment company" or an
entity" controlled" by an "investment company," as such terms are
defined in the 1940 Act.
During the course of the preparation of the Registration
Statement and the Prospectuses, we have examined various documents and
participated in conferences with representatives of and accountants for the
Company, with representatives of the Selling Stockholder and their counsel and
with representatives of the underwriters and their counsel, at which the
contents of the Registration Statement and the Prospectuses and other related
matters were discussed. Other than as set forth above, we have not verified, are
not passing upon and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectuses. Such counsel advises you, however, that in the
course of such counsel's examination and during the above-mentioned conferences,
no facts have come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable),(except for financial
statements and schedules and other financial and statistical data included or
incorporated by reference therein or omitted therefrom, as to which we express
no opinion), at the date such Registration Statement or any such amendment
became effective, contained an 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 or that the Prospectuses or any amendment or
supplement thereto (except for financial statements and schedules and other
financial and statistical data included or incorporated by reference therein or
omitted therefrom, as to which we express no opinion), at the
A-5
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<PAGE>
time the Prospectuses were issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted 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.
In rendering such opinion, such counsel may rely as to matters
of fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-6
<PAGE>
<PAGE>
Exhibit B-1
FORM OF OPINION OF U.S. COUNSEL FOR THE SELLING STOCKHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any New York
or United States federal court or governmental authority or agency
(other than the issuance of the order of the Commission declaring the
Registration Statement effective and such authorizations, approvals or
consents as maybe necessary under state securities laws, as to which we
need express no opinion) is necessary or required to be obtained by the
Selling Stockholder for the performance by the Selling Stockholder of
its obligations under the U.S. Purchase Agreement or the International
Purchase Agreement or in connection with the offer, sale or delivery of
the Securities by the Selling Stockholder to the Underwriters in
accordance therewith.
(ii) The execution, delivery and performance of the U.S.
Purchase Agreement and the International Purchase Agreement and the
sale and delivery of the Securities and the consummation of the
transactions contemplated in the U.S. Purchase Agreement, the
International Purchase Agreement and in the Registration Statement and
compliance by the Selling Stockholder with its obligations under the
U.S. Purchase Agreement and the International Purchase Agreement
(assuming each has been duly authorized, executed and delivered by all
necessary action on the part of the Selling Stockholder) do not and
will not result in any violation of the provisions of any New York or
United States federal law, administrative regulation, judgment or order
of any governmental agency or body or any administrative or court
decree having jurisdiction over the Selling Stockholder or any of its
properties.
(iii) Upon due delivery to the Underwriters of a certificate
or certificates for the Securities, against receipt of the purchase
price therefor as provided in the U.S. Purchase Agreement and the
International Purchaser Agreement. the Selling Stockholder will
transfer to the Underwriters who have purchased such Securities
pursuant to the U.S. Purchase Agreement and the International Purchase
Agreement valid title to such Securities, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any
kind (assuming that
B-1-1
<PAGE>
<PAGE>
the Underwriters are without notice of any adverse claim as defined in
the New York Uniform Commercial Code (the "Code"), and are purchasers
for value in good faith for purposes of the Code and that such
Underwriters are not limited by subsection (4) of Section 8-302 of the
Code).
(iv) There is no New York State or New York City stamp duty,
value-added tax or other tax or duty, payable by or on behalf of the
Underwriters or the Selling Stockholder in connection with the sale and
delivery by the Selling Stockholder of the Securities to the
Underwriters contemplated by the U.S. Purchase Agreement and the
International Purchase Agreement.
(v) The information in the Prospectuses under the captions
"Principal and Selling Stockholders -- Certain Transactions and
Relationships" relating to the Option Agreement and the assignment
thereof to the Selling Stockholder and "Certain United States Tax
Consequences," to the extent that such information constitutes matters
of law, summaries of legal matters or legal conclusions, has been
reviewed by us and is correct in all material respects.
B-1-2
<PAGE>
<PAGE>
Exhibit B-2
FORM OF OPINION OF SPECIAL FOREIGN COUNSEL FOR THE SELLING
STOCKHOLDER TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) The Selling Stockholder has been duly organized and is
validly existing and is in good standing as a private limited
liability company under the laws of the Netherlands Antilles. In
addition the Selling Stockholder is in compliance with its
organizational documents.
(ii) No filing with, or consent, approval, authorization,
license, order, registration, qualification or decree of, any
Netherlands Antilles court or governmental authority or agency is
necessary or required to be obtained by the Selling Stockholder for
the performance by the Selling Stockholder of its obligations under the
U.S. Purchase Agreement or the International Purchase Agreement or in
connection with the offer, sale or delivery of the Securities.
(iii) The Selling Stockholder has the full right, power and
authority to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement. Each of
the U.S. Purchase Agreement and the International Purchase Agreement
has been duly authorized, executed and delivered by or on behalf of
the Selling Stockholder.
(iv) The execution, delivery and performance of the U.S.
Purchase Agreement and the International Purchase Agreement and the
sale and delivery of the Securities and the consummation of the
transactions contemplated in the U.S. Purchase Agreement, the
International Purchase Agreement and in the Registration Statement and
compliance by the Selling Stockholder with its obligations under the
U.S. Purchase Agreement and the International Purchase Agreement have
been duly authorized by all necessary action on the part of the
Selling Stockholder 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 under or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities
or any property or assets of the Selling Stockholder pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement to
which the
B-2-1
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<PAGE>
Selling Stockholder is a party or by which it may be bound, or to which
any of the property or assets of the Selling Stockholder may be subject
nor will such action result in any violation of the provisions of the
charter or by-laws of the Selling Stockholder or any law,
administrative regulation, judgment or order of any governmental agency
or body or any administrative or court decree having jurisdiction over
the Selling Stockholder or any of its properties.
(v) To the best of our knowledge, the Selling Stockholder
has valid and marketable title to the Securities to be sold by the
Selling Stockholder pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind,
and has full right, power and authority to sell, transfer and deliver
such Securities pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement.
(vi) The Selling Stockholder and its obligations under the
U.S. Purchase Agreement and the International Purchase Agreement are
subject to civil and commercial law and to suit in the Netherlands
Antilles and neither the Selling Stockholder nor any of its properties,
assets or revenues has any right of immunity under the laws of the
Netherlands Antilles or New York from any legal action, suit or
proceeding, from setoff or counterclaim, from the jurisdiction of any
court of the Netherlands Antilles, New York or the United States from
service of process, attachment on or prior to judgment or attachment
in aid of execution of judgment, or from execution of a judgment, or
other legal process or proceeding for the giving of any relief or for
the enforcement of a judgment in any such court, with respect to its
obligations, liabilities or any other matter under or arising out of or
in connection with the U.S. Purchase Agreement or the International
Purchase Agreement, and, to the extent that the Selling Stockholder or
any of Selling Stockholder's properties, assets or revenues may have or
hereinafter become entitled to any such right of immunity in any such
court in which proceedings may at any time be commenced, the Selling
Stockholder has waived or has agreed to waive such right to the extent
permitted by law and has consented to such relief and enforcement as
provided in Section 14 of the U.S. Purchase Agreement and the
International Purchase Agreement.
B-2-2
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<PAGE>
(vii) the courts of the Netherlands Antilles will recognize
and give effect to the choice of law of the State of New York as the
law governing the U.S. Purchase Agreement and the International
Purchase Agreement; the Selling Stockholder has the power to submit,
and pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement has legally, validly, effectively and irrevocably
submitted, to the nonexclusive personal jurisdiction of any federal or
state court in the Borough of Manhattan, City of New York, State of New
York, and has the power to designate, appoint and empower, and pursuant
to the separate written instrument referred to in Section 14 of the
Purchase Agreement, has legally, validly, effectively and irrevocably
designated, appointed and empowered, an agent for service of process
for any suit or proceeding based on or arising under the U.S. Purchase
Agreement or the International Purchase Agreement in any federal or
state court in the Borough of Manhattan, City of New York, State of New
York, as provided in Section 14 of the Purchase Agreement.
(viii) the Underwriters are each entitled to sue as plaintiff
in a court of the Netherlands Antilles for the enforcement of their
respective rights under the U.S. Purchase Agreement or the
International Purchase Agreement against the Selling Stockholder and
such access to the courts of the Netherlands Antilles will not be
subject to any conditions which are not applicable to residents of the
Netherlands Antilles or a company incorporated in the Netherlands
Antilles, other than the requirements to post a bond of guarantee with
respect to court costs and legal fees if any such party does not own
real property in the Netherlands Antilles.
B-2-3
<PAGE>
<PAGE>
[Form of lock-up from directors and officers pursuant to Section 5(i)]
Exhibit C
, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Donaldson, Lufkin & Jenrette Securities
Corporation
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Re: Proposed Public Offering by Valassis
Communications, Inc.
Ladies and Gentlemen:
The undersigned, a stockholder and an officer and/or director
of Valassis Communications, Inc., a Delaware corporation (the "Company"),
understands that Merrill Lynch & Co., Merrill Lynch, Pierce, Fencer & Smith
Incorporated ("Merrill Lynch") and Morgan Stanley & Co. Incorporated, Bear,
Stearns & Co. Inc., and Donaldson, Lufkin & Jenrette Securities Corporation
propose to enter into a U.S. Purchase Agreement and an International Purchase
Agreement (the "Purchase Agreements") with the Company and the Selling
Stockholder providing for the public offering of shares (the "Securities") of
the Company's common stock, par value $.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder and an officer and/or director of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with each underwriter to be
named in the Purchase Agreements that, during a period of 120 days from the date
of each of the Purchase Agreements, the undersigned will not, without the prior
written consent of Merrill Lynch, directly or indirectly, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, pur-
C-1
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<PAGE>
chase any option or contract to sell, grant any option, right or warrant for the
sale of, or otherwise dispose of or transfer, directly or indirectly, any
shares of the Company's Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, in each case, whether now owned
or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or file any
registration statement under the Securities Act of 1933, as amended, 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 is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:_____________________
Print Name:____________________
C-2
<PAGE>
<PAGE>
[LETTERHEAD OF McDERMOTT, WILL & EMERY]
June 27, 1997
Valassis Communications, Inc.
19975 Victor Parkway
Livonia, Michigan 48152
Ladies and Gentleman:
We have acted as your special counsel in connection with the proposed
offering and sale by Conpress International (Netherlands Antilles) N.V., a
Netherlands Antilles limited liability company of 13,000,000 shares of the
common stock, $0.01 par value per share (in addition to 1,950,000 shares of
common stock subject to an over-allotment option granted to the Underwriters)
(the "Shares") of Valassis Communications, Inc., a Delaware corporation (the
"Company"), as contemplated by the Prospectus (the "Prospectus") included as
part of the Registration Statement on Form S-3, as amended, (the "Registration
Statement") with respect to the Shares, which is being filed herewith with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act").
For the purposes of this opinion, we have examined the Registration
Statement and the Prospectus contained therein, and have also examined and
relied upon the representations and warranties as to factual matters contained
in such documents and upon originals or copies of such corporate records and
other documents and have reviewed such questions of law as we considered
necessary or appropriate for the purposes of this opinion.
Members of this firm are admitted to the Bar of the State of New York
and we express no opinion as to the laws of any other jurisdiction except for
the General Corporation Law of the State of Delaware.
Based on such examination and review, we are of the opinion that the
Shares are duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Prospectus forming a part of the Registration Statement. In
giving this consent, we do not thereby admit
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<PAGE>
Valassis Communications, Inc.
June 27, 1997
Page 2
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act and the rules and regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
/s/ McDermott, Will & Emery
<PAGE>
<PAGE>
Draft--June 26, 1997
================================================================================
REGISTRATION RIGHTS AGREEMENT
between
VALASSIS COMMUNICATIONS, INC.
and
CONPRESS INTERNATIONAL (NETHERLANDS ANTILLES) N.V.
Dated as of_________, 1997
================================================================================
<PAGE>
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
1. Registrations Upon Request..............................................1
1.1 Requests.......................................................1
1.2 Registration Statement Form....................................3
1.3 Expenses.......................................................3
1.4 No Inclusion of Other Securities...............................4
1.5 Priority in Demand Registrations...............................4
1.6 No Company Initiated Registration..............................5
2. Piggy-Back Registrations................................................5
2.1 Piggy-Back Rights..............................................5
2.2 Company Decision Not to Sell...................................6
2.3 Priority in Piggy-Back Registrations...........................6
2.4 Expenses.......................................................8
2.5 Piggy-Back Rights Not Deemed
Registration Request...........................................8
3. Registration Procedures.................................................8
3.1 Obligations of the Company.....................................8
3.2 Information Regarding Sellers.................................14
3.3 Notice to Discontinue.........................................14
4. Underwritten Offerings.................................................15
4.1 Underwriting Agreement........................................15
4.2 Selection of Underwriters.....................................16
5. Holdback Agreements....................................................16
5.1 Restrictions on Public Sale by Holders of
Registrable Securities........................................16
5.2 Restrictions on Public Sale by the Company....................17
5.3 Additional Restrictions.......................................18
6. No Grant of Future Registration Rights.................................19
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Page
----
7. Indemnification........................................................19
7.1 Indemnification by the Company................................19
7.2 Indemnification by the Sellers................................20
7.3 Notices of Claims, etc........................................22
7.4 Other Indemnification.........................................23
7.5 Indemnification Payments......................................23
7.6 Other Remedies................................................23
8. Definitions............................................................24
9. Miscellaneous..........................................................27
9.1 Rule 144 etc..................................................27
9.2 Successors, Assigns and Transferees...........................27
9.3 Amendment, Modification or Waiver.............................28
9.4 Ratification..................................................28
9.5 Governing Law.................................................28
9.6 Invalidity of Provision.......................................28
9.7 Notices.......................................................29
9.8 Headings; Execution in Counterparts...........................30
9.9 Injunctive Relief.............................................30
9.10 Further Assurances............................................30
9.11 Entire Agreement..............................................30
9.12 Term..........................................................31
<PAGE>
<PAGE>
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT, dated as of __________, 1997, between
Valassis Communications, Inc., a Delaware corporation (the "Company"), and
Conpress International (Netherlands Antilles) N.V., a Netherlands Antilles
private limited liability company (together with its successors and permitted
assigns pursuant to Section 9.2(a), "Conpress"). Capitalized terms used herein
without definition are defined in Section 8.
1. Registrations Upon Request.
1.1 Requests. At any time and from time to time after the date hereof,
Conpress shall have the right to make up to three requests that the Company
effect the registration under the Securities Act of any of the Qualified
Securities, each such request to specify the intended method or methods of
disposition thereof, provided that (a) the underwritten registered offering
pursuant to the registration statement on Form S-3 (Reg. No. 333-28685), filed
with the Commission on June 6, 1997, shall be deemed to constitute one such
request; (b) the Company shall only be required to effect a registration
pursuant to this Section 1.1 for a minimum of (i) five million shares of
Qualified Securities or, if less, (ii) the aggregate remaining number of
Qualified Securities then held by Conpress; (c) the Company shall not be
required to effect a registration pursuant to this Section 1.1 until a period of
90 days shall have elapsed from the effective date of the most recent
registration previously effected pursuant to this Section 1.1; (d) any request
by Conpress that the Company effect a registration of Qualified Securities
pursuant to a registration statement filed under Rule 462(b) of the Securities
Act increasing or decreasing the number of Qualified Securities registered under
a registration statement filed at the request of Conpress pursuant to this
Section 1.1 shall not be counted for purposes of Conpress's request limitations
set forth above; and (e) (i) if Conpress
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<PAGE>
determines in its good faith judgment to withdraw the proposed registration of
any Qualified Securities requested to be registered pursuant to this Section 1.1
due to marketing reasons or (ii) the registration statement relating to any such
request is not declared effective within 90 days of the date such registration
statement is first filed with the Commission or (iii) if, within 180 days after
the registration relating to any such request has become effective, such
registration is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court for any
reason and the Company fails to have such stop order, injunction or other order
or requirement removed, withdrawn or resolved to Conpress's reasonable
satisfaction within 30 days or (iv) the conditions to closing specified in the
underwriting agreement or indemnity agreement entered into in connection with
the registration relating to any such request are not satisfied (other than as a
result of a default or breach thereunder by Conpress), then such request shall
not be counted for purposes of Conpress's request limitations set forth above so
long as and subject to clause (ii) of Section 1.3, Conpress pays the fees and
disbursements of the Company's legal counsel in connection with such
registration request.
Upon any request pursuant to this Section 1.1, the Company shall
promptly, but in any event within 15 days, give written notice of such request
to all other holders of Registrable Securities and thereupon the Company shall,
subject to Section 1.5, use its best efforts to effect the prompt registration
under the Securities Act of the Qualified Securities which the Company has been
so requested to register by Conpress, and all other Registrable Securities which
the Company has been requested to register by the holders thereof by written
request given to the Company within 20 days after the giving of such written
notice by the Company, all to the extent required to permit the disposition of
the securities so to be registered in accordance with the intended method or
methods of Conpress.
2
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Notwithstanding the foregoing, the Company shall have the right to
delay the filing or effectiveness, but not the preparation, of a registration
statement for any demand registration during one or more periods aggregating not
more than 90 days in any 12-month period during the term of this Agreement in
the event that (a) the Company would, in accordance with the written advice of
its counsel, be required to disclose in the prospectus contained in such
registration statement information not otherwise required by law to be publicly
disclosed and (b) the Company has pending or in process a material transaction,
the disclosure of which would, in the good faith judgment of the Company's Board
of Directors, materially and adversely affect the Company.
1.2 Registration Statement Form. Each registration requested pursuant
to Section 1.1 shall be effected by the filing of a registration statement on a
form agreed to by Conpress and approved by the Company upon advice of counsel
(such approval not to be unreasonably withheld), provided, however, that
Conpress shall use Form S-3 or a comparable registration form then in effect if
the Company is eligible therefor.
1.3 Expenses. Conpress shall pay all expenses incident to Conpress'
performance of or compliance with any registration pursuant to Section 1.1 of
this Agreement and all Registration Expenses in connection with any
registrations requested under Section 1.1, provided that the Company shall pay
(i) the fees and disbursements of the Company's counsel, (ii) in the case of an
underwritten offering, all amounts payable under the termination provisions of
the underwriting agreement due to the failure of the Company to satisfy any
conditions to closing required to be satisfied by it and which relate to matters
within the Company's control (which conditions shall be identified and agreed to
by the parties in connection with each specific underwriting agreement) and
(iii) salaries of Company personnel or general overhead expenses of the Company,
auditing fees, or other expenses for the preparation of financial statements
3
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<PAGE>
or other data normally prepared by the Company in the ordinary course of
business or which the Company would have incurred in any event. Nothing in the
foregoing sentence shall affect the indemnification and other rights and
obligations of the parties set forth in Section 7 of this Agreement.
1.4 No Inclusion of Other Securities. The Company shall not register
securities (other than Registrable Securities) for sale for the account of the
Company or any other Person in any registration requested pursuant to Section
1.1.
1.5 Priority in Demand Registrations. If a registration pursuant to
this Section 1 involves an underwritten offering, and the managing underwriter
(or, in the case of an offering which is not underwritten, a nationally
recognized investment banking firm) shall advise the Company in writing (with a
copy to each Person requesting registration of Registrable Securities) that, in
its opinion, the number of securities requested and otherwise proposed to be
included in such registration exceeds the number which can be sold in such
offering without materially and adversely affecting the offering price, the
Company shall include in such registration to the extent of the number which the
Company is so advised can be sold in such offering without such material adverse
effect:
first, the Qualified Securities proposed to be sold by Conpress; and
second, to the extent that the number of Qualified Securities which
Conpress proposes to sell in such offering is less than the number of
securities which the Company has been advised can be sold in such
offering without having the material adverse effect referred to above,
the Registrable Securities proposed to be sold by each holder (other
than Conpress) requesting registration thereof, pro rata among such
holders, on the basis
4
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<PAGE>
of the number of securities requested to be included by such holders.
1.6 No Company Initiated Registration. After receipt of notice of a
requested registration pursuant to Section 1.1, the Company shall not initiate,
without the consent of Conpress, a registration of any of its equity securities,
or any securities convertible into or exercisable or exchangeable for such
equity securities, for its own account or the account of any other Person (other
than Conpress), other than a registration on Form S-8 or any successor form,
until 90 days (or such longer period as may be requested by the managing
underwriter, and approved by Conpress, in connection with any particular demand)
after such registration has been effected or, if earlier, until the registration
is terminated.
2. Piggy-Back Registrations.
2.1 Piggy-Back Rights. If the Company at any time proposes to register
any of its [equity securities] under the Securities Act (other than pursuant to
a registration on Form S-4 or S-8 or any successor form), whether or not for
sale for its own account, and the registration form to be used may be used for
the registration of Registrable Securities, it shall give prompt written notice
to each holder of Qualified Securities and to each holder of Registrable
Securities that holds a number of shares of Common Stock equal to one percent or
more of the total shares of Common Stock then outstanding of its intention to
do so. Upon the written request of any such holder made within 30 days after the
receipt of any such notice (which request shall specify the number of
Registrable Securities intended to be disposed of by such holder and the
intended method or methods of disposition thereof), the Company shall use its
best efforts to effect the registration under the Securities Act of all such
Registrable Securities in accordance with such intended method or methods of
disposition. If the registration referred to in this Section 2 involves a sale
by the Company of its [equity
5
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<PAGE>
securities] for its own account, and the Company proposes to distribute such
[equity securities] by or through an underwriter, the Company shall use its
best efforts to cause such underwriter to permit the holders of Registrable
Securities who have requested to participate in such offering to include such
Registrable Securities in such underwritten offering on the same terms and
conditions of the [equity securities] of the Company included therein.
2.2 Company Decision Not to Sell. If, at any time after giving written
notice of its intention to register any [equity securities] and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register such
[equity securities], the Company may, at its election, give written notice of
such determination to each holder of Registrable Securities and, thereupon,
shall not be obligated to register any Registrable Securities in connection with
such registration or to complete an offering of [equity securities] that it
proposes to make (but shall nevertheless pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of Conpress to
request that a registration be effected under Section 1. Notwithstanding the
foregoing, the Company shall incur no liability to any holder for its failure to
register or sell any [equity securities] pursuant to this Section 2.2.
2.3 Priority in Piggy-Back Registrations. If a registration pursuant to
Section 2.1 involves an underwritten offering, and the managing underwriter
(or, in the case of an offering that is not underwritten, a nationally
recognized investment banking firm) shall advise the Company in writing (with a
copy to each holder of Registrable Securities requesting registration thereof)
that, in its opinion, the number of securities requested and otherwise proposed
to be included in such registration exceeds the number which can be sold in such
offering without materially and adversely affecting the offering price, the
Company shall include in such registration to the extent of the
6
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<PAGE>
number which the Company is so advised can be sold in such offering without such
material adverse effect:
first, the securities, if any, proposed to be sold by the Company for
its own account;
second, to the extent that the number of securities which the Company
proposes to sell for its own account pursuant to such offering is less
than the number of securities which the Company has been advised can be
sold in such offering without having the material adverse effect
referred to above, any Qualified Securities requested to be included in
such registration by Conpress;
third, to the extent that the number of securities which the Company
proposes to sell for its own account pursuant to such offering together
with those securities included in such offering pursuant to clause
second is less than the number of shares which the Company has been
advised can be sold in such offering without having the material
adverse effect referred to above, any Registrable Securities proposed
to be sold by each holder (other than Conpress) pursuant to Section
2.1, pro rata among such holders, on the basis of the number of
securities registered to be included by such holders; and
fourth, to the extent that the number of securities which the Company
proposes to sell for its own account pursuant to such offering together
with those securities included in such offering pursuant to clause
second and third is less than the number of shares which the Company
has been advised can be sold in such offering without having the
material adverse effect referred to above, any securities initially
proposed to be registered by the Company for the accounts of other
Persons pursuant to the exercise of demand
7
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<PAGE>
registration rights (if any) if such securities must be included to
prevent a breach of any applicable registration rights agreement
between the Company and such other Person, but only in such amount and
to the extent required by such agreement.
2.4 Expenses. The Company shall pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2, provided that each seller of Registrable Securities shall pay
(i) all Registration Expenses to the extent required to be paid by such seller
under applicable law and (ii) any registration filing fees, transfer taxes and
underwriting discounts and other commissions of any kind (other than any
commissions which the Company undertakes to pay in connection with such
registration), in each case directly attributable to the sale of the seller's
Registrable Securities, based on such seller's pro rata share of the proceeds
from the sale of the seller's Registrable Securities in such offering. All other
expenses incident to such seller's performance or compliance with any
registration pursuant to this Agreement shall be paid by such seller.
2.5 Piggy-Back Rights Not Deemed Registration Request. No registration
effected under this Section 2 shall relieve the Company from its obligation to
effect registrations under Section 1.
3. Registration Procedures.
3.1 Obligations of the Company. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 1 and 2, the Company shall
promptly:
(a) prepare, and as soon as practicable, but in any event within 60
days thereafter file with the
8
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Commission, a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective; provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall
provide the holders of the Registrable Securities being registered and
their underwriters, if any, and their respective counsel and accountants an
adequate and appropriate opportunity to participate in the preparation of
such registration statement and each prospectus included therein (and each
amendment or supplement thereto) to be filed with the Commission, subject
to each seller's compliance with its obligations under Section 3.2(a);
(b) prepare and promptly file with the Commission such amendments and
post-effective amendments and supplements to such registration statement
(including, without limitation, any subsequent registration statements
filed pursuant to Rule 462(b) under the Securities Act) and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for so long as is required to comply with the
provisions of the Securities Act and to complete the disposition of all
securities covered by such registration statement in accordance with the
intended method or methods of disposition thereof, but in no event for a
period of more than six months after such registration statement becomes
effective;
(c) furnish to each seller of such Registrable Securities copies of all
documents proposed to be filed with the Commission in connection with such
registration and the Company shall not file any amendment or
post-effective amendment or supplement to such registration statement or
the prospectus used in connection therewith to which a seller of
Registrable Securities shall have reasonably objected in writing, based on
advice of reputable outside counsel, on the grounds that such amendment or
supplement does not comply
9
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<PAGE>
(explaining why) in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder;
(d) furnish to the seller of such Registrable Securities, such number
of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits and
documents filed therewith) and such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed under
Rule 424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, as such seller may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by such seller in accordance with the intended method or
methods of disposition thereof;
(e) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the seller of such
Registrable Securities shall reasonably request, and do any and all other
acts and things which may be necessary or advisable to enable the seller
of such Registrable Securities to consummate the disposition of such
Registrable Securities in such jurisdictions in accordance with the
intended method or methods of disposition thereof;
(f) use its reasonable best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies, authorities or self-regulatory bodies as
may be necessary by virtue of the business and operations of the Company to
enable the seller of such Registrable Securities to consummate the
disposition of such Registrable Securities in
10
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accordance with the intended method or methods of disposition thereof;
(g) furnish each seller of Qualified Securities a signed counterpart,
addressed to such sellers, of either (i) an opinion of counsel for the
Company experienced in securities law matters, dated the effective date of
the registration statement (and, if such registration includes an
underwritten public offering, the date of the closing under the
underwriting agreement), covering such matters as are customarily covered
in opinions of issuer's counsel delivered to the underwriters in
underwritten public offerings of securities and such other matters as
Conpress may reasonably request, or (ii) in the case of an underwritten
offering, a letter, dated the effective date of the registration statement
and the date of the closing under the underwriting agreement, authorizing
such sellers to rely on an opinion addressed to the underwriters in such
underwritten offering to the effect set forth in clause (i) above in
connection with any due diligence investigation undertaken by such sellers
in the context of such offering;
(h) furnish each seller of Registrable Securities a signed counterpart,
addressed to the sellers, of a "comfort" letter (unless the registration is
pursuant to Section 2 and such a letter is not otherwise being furnished to
the Company), dated the effective date of such registration statement (and
if such registration includes an underwritten public offering, dated the
date of the closing under the underwriting agreement), signed by the
independent public accountants who have issued an audit report on the
Company's financial statements included in the registration statement,
covering such matters as are customarily covered in and in accountants'
letters delivered to the underwriters in underwritten public offerings of
securities;
11
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(i) notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event or existence of any fact as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and, as promptly as
is practicable, prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include 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 in
light of the circumstances then existing;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement of the
Company (in form complying with the provisions of Rule 158 under the
Securities Act) covering the period of at least 12 months, but not more
than 18 months, beginning with the first month after the effective date of
the registration statement;
(k) notify each seller of Registrable Securities covered by such
registration statement (i) when the prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission for amendments or
supplements to such registration statement or to amend or to supplement
such prospectus or for additional informa-
12
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tion, (iii) of the issuance by the Commission of any stop order suspending
the effectiveness of such registration statement or the initiation of any
proceedings for that purpose and (iv) of the suspension of the
qualification of such securities for offering or sale in any jurisdiction,
or of the institution of any proceedings for any of such purposes;
(l) use every reasonable effort to obtain the lifting of any stop order
that might be issued suspending the effectiveness of such registration
statement at the earliest possible moment;
(m) use its reasonable best efforts (i) to maintain the listing of such
Registrable Securities on any securities exchange on which the equity
securities of the Company are then listed and (ii) to provide and cause to
be maintained a transfer agent and registrar for such Registrable
Securities from and after a date not later than the effective date of such
registration statement;
(n) enter into such agreements and take such other actions as the
sellers of Registrable Securities or the underwriters thereof reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities, including, without limitation, preparing for, and
participating in, such number of "road shows" and all such other customary
selling efforts as the underwriters reasonably request in order to expedite
or facilitate such disposition;
(o) make available for inspection by each seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration statement, and any attorney, accountant or other agent
retained by any such holder or any underwriter, all financial and other
records, pertinent corporate documents and properties of the Company and
its subsidiaries, and cause the Company's and its subsidiaries'
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officers, directors and employees, and the independent public accountants
of the Company, to supply all information reasonably requested by any such
person in connection with such registration statement; and
(p) use its reasonable best efforts to take all other steps necessary
to effect the registration of such Registrable Securities contemplated
hereby.
3.2 Information Regarding Sellers. (a) Each seller of any Registrable
Securities as to which any registration is being effected shall promptly furnish
to the Company such written information regarding such seller, its ownership of
Registrable Securities and the disposition of such Registrable Securities and
such other items as the Company may from time to time reasonably request in
writing and as shall be required by law in connection therewith. Each such
holder shall promptly furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such holder not materially misleading.
(b) The Company shall not file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to any seller of any Registrable Securities covered thereby by name, or
otherwise identifies such seller as the holder of any Registrable Securities,
without the consent of such seller, such consent not to be unreasonably
withheld, unless such disclosure is required by law.
3.3 Notice to Discontinue. By acquisition of Registrable Securities,
each holder of such Registrable Securities shall be deemed to have agreed that
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3.1(i), such holder shall promptly discontinue such
holder's disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder's
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receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3.1(i). If so directed by the Company, each holder of Registrable
Securities shall deliver to the Company all copies, other than permanent file
copies, in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event that the Company
shall give any such notice, the period mentioned in Section 3.1(b) shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when each seller of
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 3.1(i).
4. Underwritten Offerings.
4.1 Underwriting Agreement. If requested by the underwriters for any
underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Section 1 or Section 2, the Company shall enter
into an underwriting agreement with the underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to Conpress and to
contain such representations and warranties by the Company and such other terms
and provisions as are customarily contained in agreements of this type,
including, without limitation, indemnities to the underwriters and Persons
deemed to control the underwriters, substantially to the effect and to the
extent provided to sellers of Registrable Securities in Section 7. The holders
of Registrable Securities to be distributed by such underwriters shall be
parties to such underwriting agreement and may, at their option, require that
any or all of the representations and warranties by, and the agreements on the
part of, the Company to and for the benefit of such underwriters be made to and
for the benefit of such holders of Registrable Securities and that any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting agreement shall also be conditions precedent to the obligations of
such holders of Registrable Securities.
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No underwriting agreement (or other agreement in connection with such offering)
shall require any holder of Registrable Securities to make any representations
or warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such holder, the ownership
of such holder's Registrable Securities and such holder's intended method or
methods of disposition and any other representation required by law or to
furnish any indemnity to any Person which is broader than the indemnity
furnished by such holder in Section 7.2.
4.2 Selection of Underwriters. If the Company at any time proposes to
register any of its securities under the Securities Act for sale for its own
account pursuant to an underwritten offering, and Conpress or any other holder
of Registrable Securities gives notice pursuant to Section 2 of its intention to
participate in such offering, the Company shall have the right to select the
managing underwriter (which shall be of nationally recognized standing) to
administer the offering, but only with the approval of Conpress, such approval
not to be unreasonably withheld. Notwithstanding the foregoing sentence,
whenever a registration requested pursuant to Section 1 is for an underwritten
offering, Conpress shall have the right to select the managing underwriter
(which shall be of nationally recognized standing) to administer the offering,
but only with the approval of the Company, such approval not to be unreasonably
withheld.
5. Holdback Agreements.
5.1 Restrictions on Public Sale by Holders of Registrable Securities.
If and whenever the Company proposes to register any of its equity securities
under the Securities Act for its own account (other than on Form S-4 or S-8 or
any successor form) or is required to use its best efforts to effect the
registration of any Registrable Securities under the Securities Act pursuant to
Section 1 or 2, each holder of Registrable Securities agrees by acquisition of
such Registrable Securities not to (a) offer, sell,
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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 or otherwise
transfer or dispose of, directly or indirectly, any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, in
each case, whether now owned or hereafter acquired, or file any registration
statement under the Securities Act with respect to any of the foregoing or (b)
enter into any swap that transfers the economic consequences of ownership of the
Common Stock, whether such swap or transaction described in clause (a) above is
to be settled by delivery of Common Stock or such other securities, in cash or
otherwise, within 10 days prior to and 90 days (or such longer period as may be
requested by the managing underwriter and made applicable to restrictions on
sales by the Company set forth in Section 5.2) after the effective date of the
registration statement relating to such registration. The foregoing sentence
shall not apply to (i) the securities to be sold pursuant to such registration,
(ii) sales under the Option Agreement, dated 9 May 1996, among the Company,
Conpress Cayman, LDC and Consolidated Press International Limited, as assigned
to Conpress by an assignment, dated June 5, 1997, (iii) any pledges of Common
Stock to secure indebtedness of Conpress or any of its Affiliates and (iv) any
transfers to Affiliates of Conpress.
5.2 Restrictions on Public Sale by the Company. The Company agrees not
to (a) offer, 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 or otherwise transfer or dispose of, directly or indirectly, any share
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, in each case, whether now owned or hereafter
acquired, or file any registration statement under the Securities Act with
respect to any of the foregoing or (b) enter into any swap that transfers the
economic consequences of ownership of the Common Stock, whether such swap or
transaction described in clause (a) above is to be
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settled by delivery of Common Stock or such other securities, in cash or
otherwise, within ten days prior to and 90 days (or such longer period as may be
requested by the managing underwriter) after the effective date of the
registration statement relating to a registration requested by Conpress pursuant
to Section 1.1 hereof. The foregoing sentence shall not apply to securities to
be sold pursuant to (i) such registration, (ii) a registration on Form S-4 or
S-8 or any successor form, (iii) any shares of Common Stock issued by the
Company upon exercise of options outstanding, and (iv) any shares of Common
Stock issued or options granted pursuant to then existing Company employee
benefit plans.
5.3 Additional Restrictions. If so requested by the managing
underwriter, the Company shall use all reasonable best efforts to cause each
holder, including the directors and executive officers of the Company, of its
equity securities or any securities convertible into or exchangeable or
exercisable for any of such securities, whether outstanding on the date of this
Agreement or issued at any time after the date of this Agreement (other than any
such securities acquired in a public offering), to agree not to (a) offer, 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 or otherwise
transfer or dispose of, directly or indirectly, any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, in
each case, whether now owned or hereafter acquired, or file any registration
statement under the Securities Act with respect to any of the foregoing or (b)
enter into any swap that transfers the economic consequences of ownership of the
Common Stock, whether such swap or transaction described in clause (a) above is
to be settled by delivery of Common Stock or such other securities, in cash or
otherwise, within ten days prior to and 90 days (or such longer period as may be
requested by the managing underwriter and made applicable to restrictions on
sales by the Company set forth in Section 5.2) after the effective date of the
registration statement
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relating to such registration. The foregoing sentence shall not apply to (i)
securities to be sold pursuant to such registration, and (ii) any sales
permitted under the Company's share repurchase program.
6. No Grant of Future Registration Rights. The Company shall not grant
any other demand or incidental registration rights to any other Person without
the prior written consent of Conpress, if any such rights would permit such
other Person to sell securities in a registered offering requested by Conpress
pursuant to Section 1.1.
7. Indemnification.
7.1 Indemnification by the Company. In the event of any registration of
any Registrable Securities pursuant to this Agreement, the Company shall
indemnify and hold harmless (a) the seller of such Registrable Securities, (b)
the directors, officers, partners, employees, agents and Affiliates of such
seller, (c) each Person who participates as an underwriter in the offering or
sale of such securities and (d) each Person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any of the foregoing against any and all loss, liability, claim or damage (or
any action or proceeding in respect thereof) arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement (or any amendment thereto) under which such Registrable
Securities were registered under the Securities Act, including information that
was omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to (x) Rule 430A of the Securities Act ("Rule 430A
Information") or (y) Rule 434 of the Securities Act ("Rule 434 Information"), if
applicable, 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
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preliminary prospectus, final prospectus or supplement prospectus contained in
such registration statement or used in connection with the offering of
securities covered thereby (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; and the Company will reimburse each such indemnified
party for any legal and other expenses reasonably incurred in connection with
investigating, preparing, pursuing or defending against any such loss,
liability, claim, damage, action or proceeding. Such indemnity shall remain in
full force and effect, regardless of any investigation made by such indemnified
party and shall survive the transfer of such Registrable Securities by such
seller.
The indemnity agreement contained in this Section 7.1 shall not apply
to (a) any loss, liability, claim, damage, expense, action or proceeding 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 such indemnified party expressly for use
in the registration statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus, final prospectus or supplement prospectus contained in
such registration statement or used in connection with the offering or
securities covered thereby (or any amendment or supplement thereto); or (b)
amounts paid in settlement of any such loss, liability, claim, damage, expense,
action or proceeding if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld).
7.2 Indemnification by the Sellers. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to Section 1 or 2, that the Company shall have received an
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undertaking satisfactory to it from each of the prospective sellers of such
Registrable Securities to indemnify and hold harmless, severally, not jointly,
the Company, its directors, officers, partners, employees, agents and
Affiliates and each Person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) the Company against
any and all loss, liability, claim, damage or expense (or any action or
proceeding in respect thereof) described in Section 7.1 but only with respect to
any untrue statement or omission or alleged untrue statement omission made in
such registration statement (or any amendment thereto), including the Rule 430A
Information and the 434 Information, if applicable, or any preliminary
prospectus, final prospectus or supplement prospectus contained in such
registration statement or used in connection with the offering of securities
covered thereby (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such seller
expressly for use in such registration statement (or any amendment thereto),
including the Rule 430A Information and the 434 Information, if applicable, or
any preliminary prospectus, final prospectus or supplement prospectus contained
in such registration statement or used in connection with the offering of
securities covered thereby (or any amendment or supplement thereto). Such
indemnity shall remain in full force and effect, regardless of any investigation
made by or on behalf of the Company or any such director, officer or controlling
Person and shall survive the transfer of such Registrable Securities by such
seller.
The indemnity agreement contained in this Section 7.2 shall not apply
to amounts paid in settlement of any such loss, liability, claim, damage,
expense, action or proceeding if such settlement is effected without the consent
of such seller (which consent shall not be unreasonably withheld). The
indemnity provided by each seller of Registrable Securities under this Section
7.2 shall be limited in amount to the net amount of proceeds actually
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received by such seller from the sale of Registrable Securities pursuant to such
registration statement.
7.3 Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraphs of this Section 7, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party, give prompt notice to the latter of the commencement of such
action or proceeding, provided that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding paragraphs of this Section 7 except and to the
extent that the indemnifying party is materially prejudiced as a result
thereof. In case any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate therein and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof. Notwithstanding the foregoing, if such indemnified party and
the indemnifying party reasonably determine, based upon advice of their
respective reputable outside counsel, that a conflict of interest may exist
between the indemnified party and the indemnifying party with respect to such
action and that it is advisable for such indemnified party to be represented by
separate counsel, such indemnified party may retain other counsel, reasonably
satisfactory to the indemnifying party, to represent such indemnified party,
and the indemnifying party shall pay all reasonable fees and expenses of such
counsel. No indemnifying party, in the defense of any such claim or litigation,
shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judg-
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ment or enter into any settlement which (i) does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability on all claims that were or could have been made
by all parties to such claims in respect of such claim or litigation or (ii)
includes a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of such indemnified party.
7.4 Other Indemnification. Indemnification similar to that specified
in the preceding paragraphs of this Section 7 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration (other than under the Securities Act) or
other qualification of such Registrable Securities under any federal or state
law or regulation of any governmental authority.
7.5 Indemnification Payments. Any indemnification required to be made
by an indemnifying party pursuant to this Section 7 shall be made by periodic
payments to the indemnified party during the course of the action or proceeding,
as and when bills are received by such indemnifying party with respect to an
indemnifiable loss, claim, damage, liability or expense incurred by such
indemnified party.
7.6 Other Remedies. If for any reason the indemnity provided for in
Sections 7.1 or 7.2 is unavailable, or is insufficient to hold harmless an
indemnified party, other than by reason of the exceptions provided therein, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such losses, liabilities, claims, damages,
actions, proceedings or expenses in such proportion as is appropriate to reflect
the relative benefits to and faults of the indemnifying party on the one hand
and the indemnified party on the other in connection with the offering of
Registrable Securities and the statements or omissions or alleged statements or
omissions which resulted in such loss, liability, claim, damage, action,
proceeding or expense, as well as any other
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relevant equitable considerations, including, without limitation, the relative
contributions made, and the relative benefits received, by the seller of
Registrable Securities and its Affiliates, on the one hand, and the Company, on
the other hand, relating to the ownership or disposition of Common Stock.
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. No party shall
be liable for contribution under this Section 7.6 except to the extent and under
such circumstances as such party would have been liable to indemnify under this
Section 7 if such indemnification were enforceable under applicable law.
8. Definitions. For purposes of this Agreement, the following terms
shall have the following respective meanings:
"Affiliate": A Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified.
"Board": The Board of Directors of the Company.
"Commission": The Securities and Exchange Commission.
"Common Stock": The Company's Common Stock, par value $.01 per share.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rules and regulations thereunder which shall
be in effect at the time.
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"NASD": National Association of Securities Dealers, Inc.
"Person": An individual, corporation, partnership, limited liability
company, joint venture, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Qualified Securities": As of any date and subject to the final
sentence of the definition of "Registrable Securities," the 20,173,800 shares of
Common Stock held by Conpress and any securities issued or issuable with respect
thereto by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise beneficially owned (within the meaning of Section
13d-3 of the Exchange Act) by Conpress.
"Registrable Securities": All (a) Qualified Securities, (b) all shares
of Common Stock held by Conpress as of the date hereof but subsequently
transferred to a Person other than one to whom Conpress has transferred its
rights hereunder pursuant to Section 9.2(a), provided that in conjunction with
any such transfer Conpress shall have given written notice to the Company
designating such transferred securities as Registrable Securities, and (c)
securities issued or issuable with respect to any shares of Common Stock
described in the foregoing clause (b), by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise beneficially owned (within
the meaning of Section 13d-3 of the Exchange Act) by any Person holding
securities described in the foregoing clause (b). As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
and, if applicable, Qualified Securities, when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
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accordance with such registration statement, (ii) they shall have been sold to
the public pursuant to Rule 144 under the Securities Act, which sale shall be
disclosed to the Company or the Company's transfer agent in writing, (iii) they
shall have been otherwise transferred and subsequent disposition of them shall
not require registration or qualification of them under the Securities Act or
any similar state law then in force, (iv) they shall have ceased to be
outstanding or (v) they shall qualify for unlimited public resale by the then
current holder thereof pursuant to subsection (k) of Rule 144 of the Securities
Act.
"Registration Expenses": All expenses incident to the Company's
performance of or compliance with any registration pursuant to this Agreement,
including, (i) registration, filing and NASD fees, (ii) fees and expenses of
complying with securities or blue sky laws, (iii) fees and expenses associated
with listing securities on an exchange or NASDAQ, (iv) the Company's
out-of-pocket word processing, duplicating, facsimile and printing expenses, (v)
the Company's out-of-pocket messenger and delivery expenses, (vi) transfer
agents', trustees', depositories', registrars' and fiscal agents' fees, (vii)
fees and disbursements of counsel for the Company and the Company's independent
public accountants, including the expenses of any special audits or "cold
comfort" letters, (viii) any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities, including underwriting discounts and
commissions and transfer taxes, if any, and (ix) any other commissions of any
kind relating to the sale of Common Stock in connection with a registration
hereunder (other than any commissions which the Company undertakes to pay in
connection with any such registration).
"Securities Act": The Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations thereunder which shall
be in effect at the time.
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9. Miscellaneous.
9.1 Rule 144 etc. The Company covenants that it shall duly and timely
file any reports required to be filed by it under the Exchange Act and the rules
and regulations adopted by the Commission thereunder; and that it shall take
such further action as any holder of Registrable Securities may reasonably
request (including providing any information necessary to comply with Rule 144
under the Securities Act), all to the extent required from time to time to
enable such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such rule may be amended from time to time, or (b)
any similar rules or regulations hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities, the Company shall deliver to
such holder a written statement as to whether it has complied with such
requirements.
9.2 Successors, Assigns and Transferees. (a) This Agreement shall not
be assignable by either party hereto without the written consent of the other,
provided that the rights and obligations of Conpress contained in this Agreement
may be transferred upon written notice by Conpress to the Company to (i) a
subsequent holder of 25% or more of Conpress' Qualified Securities as of the
date hereof (including any pledgee thereof) or (ii) an Affiliate of Conpress.
Notwithstanding any transfer of rights pursuant to the proviso of the
immediately preceding sentence, all of the obligations of the Company hereunder
shall survive any such transfer and shall continue to inure to the benefit of
all such transferees. Subject to the foregoing, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(b) Notwithstanding Section 9.2(a), any holder of Registrable
Securities shall have such rights and obligations as are herein provided and
upon any such transfer or
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assignment, Conpress will cause such holder to execute a written acknowledgment
of such understanding, a copy of which shall be provided to the Company.
(c) The Company shall have a right to legend any shares of Registrable
Securities indicating that the transfer thereof is restricted under any
applicable securities laws. The Company agrees to remove such legend at such
time as such securities no longer constitute Registrable Securities pursuant to
the final sentence of the definition of Registrable Securities in Section 8
hereof.
9.3 Amendment, Modification or Waiver. This Agreement may be amended,
modified, supplemented or waived only by a writing signed by the Person against
whom enforcement of such amendment, modification, supplement or waiver is
sought.
9.4 Ratification. In the event that Conpress and its Affiliates cease
to beneficially own in the aggregate more than 25% of the then outstanding
shares of Common Stock of the Company, the Company agrees promptly to seek the
ratification and novation of this Agreement (on the same terms as herein
provided) by the then constituted Board of Directors.
9.5 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THE PERSONS SUBJECT HERETO SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF.
9.6 Invalidity of Provision. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
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9.7 Notices. All notices, requests, demands, letters, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally,(b) sent by next-day or overnight mail or delivery or (c) sent by
confirmed facsimile, as follows:
(i) If to the Company, to it at:
Valassis Communications, Inc.
19975 Victor Parkway
Livonia, Michigan 48152
Telephone: (313)591-3000
Fax: (313) 591-4460
Attention: Barry Hoffman, Esq.
(ii) If to Conpress, to it at:
Conpress International (Netherlands Antilles) N.V.
c/o 2nd Floor, Block A
Russell Court, Saint Stephen's Green
Dublin 2
Ireland
Telephone: (011) (353) 1-475-6600
Fax (011) (353) 1-475-6605
Attention: Peter Beer, Director
with a copy to:
Consolidated Press Holdings Limited
54-58 Park Street
Sydney, NSW 2000
Australia
Telephone: (011) (612) 9282-8000
Fax: (011) (612) 9267-2150
Attention: David Barnett, Esq.
(iii) If to any other holder of Registrable Securities, to the address of
such holder as set forth in the books and records of the Company;
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or to such other Person or address as any party shall specify by notice in
writing to Conpress and the Company. All such notices, requests, demands,
letters, waivers and other communications shall be deemed to have been received
(x) if by personal delivery on the day after such delivery, (y) if by next-day
or overnight mail or delivery, on the day delivered or (z) if by facsimile,
on the next day following the day on which such facsimile was sent, provided
that a copy is also sent by certified or registered mail.
9.8 Headings; Execution in Counterparts. The headings and captions
contained herein are for convenience and shall not control or affect the meaning
or construction of any provision hereof. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
9.9 Injunctive Relief. Each of the parties recognizes and agrees that
money damages may be insufficient and, therefore, in the event of a breach of
any provision of this Agreement the aggrieved party may elect to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of this Agreement. Such remedies
shall, however, be cumulative and not exclusive, and shall be in addition to any
other remedy which such party may have.
9.10 Further Assurances. Subject to the specific terms of this
Agreement, both the Company and Conpress shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
9.11 Entire Agreement. This Agreement is intended by the parties
hereto as a final expression of their agreement and intended to be a complete
and exclusive state-
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ment of their agreement and understanding in respect of the subject matter
contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
9.12 Term. This Agreement shall be effective as of the date hereof and
shall continue in effect thereafter until the earlier of (a) its termination by
the consent of the parties hereto or their respective successors in interest,
and (b) the date on which no Registrable Securities remain outstanding, provided
that the obligations of the parties pursuant to Sections 5 and 7 shall survive
such termination.
31
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IN WITNESS WHEREOF, this Agreement has been signed by each of the
parties hereto, effective as of the date first written above.
VALASSIS COMMUNICATIONS, INC.
By:
--------------------------------
Name:
Title:
CONPRESS INTERNATIONAL
(NETHERLANDS ANTILLES) N.V.
By:
--------------------------------
Name:
Title:
32
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June 23, 1997
Comerica Bank
Mr. Patrick M. Randall
Valassis Communications, Inc.
36111 Schoolcraft Road
Livonia, Michigan 48150
Re: Waiver regarding Revolving Credit Agreement dated as of August 11,
1995 as amended ('Credit Agreement')
Dear Mr. Randall:
Having received approval and authorization from the Majority Banks, the
Agent hereby confirms the waiver ('Waiver') by the Agent and the Majority Banks
of Valassis Communications, Inc.'s ('VCI') noncompliance with the provisions of
Section 7.10 of the Credit Agreement and any Event of Default under Section
8.1(k) of the Credit Agreement arising solely as a result of the transaction
described in your letter to Comerica Bank dated June 16, 1997, a copy of which
is annexed hereto.
This Waiver shall not be deemed to amend or alter in any respect the terms
of the Credit Agreement or any of the other Loan Documents (including without
limitation all conditions or requirements for Advances, and any other financial
or other covenants), or to constitute a waiver or release by any of the Banks or
Agent of any right, remedy, Default or Event of Default under the Credit
Agreement or any of the other Loan Documents, except as expressly set forth
above.
Except as specifically defined to the contrary herein, capitalized terms
used in this Waiver shall have the meanings given them in the Credit Agreement.
This Waiver shall not become effective unless and until countersigned by VCI (in
the space provided below) and returned to the Agent within five (5) Business
Days from the date of this letter.
Very truly yours,
COMERICA BANK
By: Thomas J. Parnell
-------------------.
Its: Vice President
VCI hereby acknowledges the Waiver
on the foregoing terms this 25th
day of June, 1997:
VALASSIS COMMUNICATIONS, INC.
By: /s/ Barry P. Hoffman
- ------------------------------
By: Barry P. Hoffman, Esq.
Its: Secretary
<PAGE>
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[LOGO of Valassis Communications]
June 16, 1997
Mr. Scot Zimmerman
Comerica Bank
P.O. Box 75000
Detroit, MI 48275-3327
Dear Scot:
As you know, Valassis Communications announced on June 6 that we have filed a
Form S-3 Registration Statement with the Securities and Exchange Commission.
This Statement was filed because Conpress International (Netherlands Antilles)
N.V., an affiliate of Consolidated Press Holdings Limited, is planning to sell
approximately 13 million of its 20.2 million shares of Valassis common stock.
This sale will reduce their interest from approximately 50% to less than 18%.
This transaction will trigger an Event of Default under Section 8.1(k) of our
Revolving Credit Agreement. In addition, since Valassis has entered into an
agreement to assist Conpress with the registration and sale of these shares,
this may fail the negative covenant text found in Section 7.10 (preventing
transactions with affiliates). In order to avoid default, we are requesting that
the Bank Group issue a waiver on this entire transaction as soon as possible
since this sale is expected to occur by early July. Ideally, this waiver should
also specifically refer to these two sections so that there is no confusion.
I have attached a copy of the press release announcing this transaction for your
reference. Please note that Valassis will not receive any of the proceeds of
this offering.
As always, I appreciate the Bank Group's prompt response in responding to our
request. If you or the other banks have any questions, please call me at (313)
591-4949.
Sincerely,
VALASSIS COMMUNICATIONS, INC.
Patrick M. Randall
Assistant Treasurer
PMR/dmr
Attachment
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EXHIBIT 23.1
We consent to the reference to our firm under the caption 'Experts' in
Amendment No. 2 to the Registration Statement (Form S-3 No. 333-28685) and
related Prospectus of Valassis Communications, Inc. for the registration of
shares of its common stock and to the incorporation by reference therein of our
report dated February 10, 1997, with respect to the consolidated financial
statements and schedule of Valassis Communications, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Detroit, Michigan
June 23, 1997
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