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EXHIBIT 1.01
Draft of February 12, 1997
QUINTILES TRANSNATIONAL CORP.
Common Stock, $.01 par value
UNDERWRITING AGREEMENT
(U.S. VERSION)
__________, 1997
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Quintiles Transnational Corp., a North Carolina corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 940,000 shares of Common Stock, $.01 par value ("Stock") of the Company and
the shareholders of the Company named in Schedule II hereto (the "Selling
Shareholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of 2,260,000 shares and, in the case of
certain Selling Shareholders identified with an asterisk in Schedule II hereto
and at the election of the Underwriters, up to 480,000 additional shares of
Stock. The aggregate of 3,200,000 shares to be sold by the Company and the
Selling Shareholders hereto is herein called the "Firm Shares" and the aggregate
of 480,000 additional shares to be sold by the Selling Shareholders identified
with an asterisk in Schedule II hereto is herein called the "Optional Shares".
The Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Company and the
Selling Shareholders are concurrently entering into an agreement (the
"International
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Underwriting Agreement") providing for the sale by the Company and the Selling
Shareholders of up to a total of 920,000 shares of Stock (the "International
Shares"), including the overallotment option thereunder, through arrangements
with certain underwriters outside the United States (the "International
Underwriters"), for whom Xxxxxxx Xxxxx International, Xxxxxx Xxxxxxx & Co.
International Limited, Xxxxx Xxxxxx Inc. and Xxxxxxx Xxxxx & Company, L.L.C. are
acting as lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages as included in the registration statement and amendments
thereto as mentioned below. Except as used in Sections 2, 3, 4, 9 and 11 herein,
and except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S.
and the international versions thereof.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-21393) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus
contained therein, delivered to you for each of the other Underwriters, have
been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a "Rule
462(b) Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, or document incorporated by reference
therein has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement has been
issued and no proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the Act is hereinafter
called a "Preliminary Prospectus"); the various parts of the Initial
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Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including (A) the information contained
in the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective and (B) the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, each as amended at
the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became
effective, are hereinafter collectively called the "Registration Statement";
such final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement;
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder, and 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxx, Sachs & Co.
expressly for use therein or by a Selling Shareholder expressly for use in
the preparation of the answers therein to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or
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omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, 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;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling Shareholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3;
(v) Other than as set forth or contemplated in the Prospectus,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any change in
the capital stock or long-term debt of the Company and its subsidiaries,
taken as a whole, or any material adverse change, or any development
involving a prospective material adverse change, in the condition (financial
or otherwise) or the earnings, business or operations of the Company and its
subsidiaries, taken as a whole;
(vi) The Company and each of its subsidiaries possesses all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as set forth or contemplated by the
Prospectus;
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(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of North Carolina,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole. Each Significant Subsidiary (as defined
below) of the Company has been duly incorporated or otherwise formed as a
non- corporate entity, is validly existing as a corporation or other entity,
as the case may be, in good standing under the laws of the jurisdiction of
its organization, with corporate or other organizational power and authority
to own its properties and to conduct its business as described in the
Prospectus and has been duly qualified as a foreign corporation or other
entity, as the case may be, for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole. As used in this Agreement, the term
"Significant Subsidiary" shall have the meaning set forth for the term
"Significant Subsidiary" in Rule 1-02(w) of Regulation S-X promulgated
pursuant to the Securities Act;
(viii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
non-assessable and conform to the description of the Stock contained in the
Prospectus; and all of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly authorized and validly
issued, are fully paid and non-assessable and (except for directors'
qualifying shares and except as set forth in the Prospectus) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(ix) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder and under the International Underwriting
Agreement have been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully paid
and non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(x) The issue and sale of the Shares to be sold by the Company
hereunder and under the International Underwriting Agreement, the compliance
by the Company with all of the provisions of this Agreement and the
International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated will not contravene any
provision of applicable law or the Amended and Restated Articles of
Incorporation or Amended and Restated Bylaws of the Company or any agreement
or other instrument binding upon the Company
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or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
issue and sale of the Shares by the Company or the consummation by the
Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement except such consents, approvals,
authorizations, registrations or qualifications as may be required under
state or foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the International
Underwriters;
(xi) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xii) Neither the Company nor any of its subsidiaries has taken,
directly, any action which was designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Stock;
(xiii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" "unit
investment trust", "closed-end investment company", "face-amount certificate
company" or an entity "controlled" by an "investment company" that is
required to be registered under Section 8 of the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(xiv) The Company and its subsidiaries (A) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health or safety, the
environment or any hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (C) are in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(xv) The Company has conducted a review of the effect of
Environmental Laws on the current and former businesses, operations and
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properties of the Company and its subsidiaries, in the course of which it
identified and evaluated potential associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up or closure of any property, or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities or any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(xvi) The use of the proceeds from the sale of the Securities
will not violate or result in a violation of Section 7 of the Exchange
Act, or any regulation promulgated thereunder, including, without
limitation, Regulations G, T, U, and X of the Board of Governors of the
Federal Reserve System;
(xvii) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(xviii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xix) There are no contracts, agreements or understandings
between the Company and any person granting such person the right (A) to
require the Company to file a registration statement under the Securities
Act with respect to any securities of the Company, except as disclosed in
the Registration Statement or (B) to require the Company to include
securities in the securities registered pursuant to the Registration
Statement, except any such right that has been effectively waived or
satisfied by the inclusion of securities in the Registration Statement;
(xx) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, are accurate, complete and fair; and
(xxi) Certain of the directors, officers and shareholders of the
Company listed in Schedule III hereto who are not Selling Shareholders have
each entered into a written agreement with the Company in the form of
Exhibit B hereto (each such agreement, a "Lock-up Agreement"), and executed
originals of each Lock-up Agreement have been delivered to you.
(b) Each of the Selling Shareholders severally represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Shareholder of this
Agreement, the International Underwriting Agreement, the Power of Attorney
and the Custody Agreement hereinafter referred to, and for the sale and
delivery of the Shares to be sold by such Selling Shareholder hereunder and
under the International Underwriting
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Agreement, have been obtained; and such Selling Shareholder has full
right, power and authority to enter into this Agreement, the International
Underwriting Agreement, the Power of Attorney and the Custody Agreement and
to sell, assign, transfer and deliver the Shares to be sold by such Selling
Shareholder hereunder and under the International Underwriting Agreement;
(ii) The sale of the Shares to be sold by such Selling
Shareholder hereunder and under the International Underwriting Agreement and
the compliance by such Selling Shareholder with all of the provisions of
this Agreement, the International Underwriting Agreement, the Power of
Attorney and the Custody Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder is bound, or to which any of the
property or assets of such Selling Shareholder is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation and By-laws or other governing instrument of such Selling
Shareholder if such Selling Shareholder is a corporation, the Partnership
Agreement of such Selling Shareholder if such Selling Shareholder is a
partnership, the governing trust agreement or other governing instrument of
such Selling Shareholder if such Selling Shareholder is a trust, or any
statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over such Selling Shareholder or the property of
such Selling Shareholder;
(iii) Such Selling Shareholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) such Selling Shareholder
will have, good and valid title to the Shares to be sold by such Selling
Shareholder hereunder and under the International Underwriting Agreement,
free and clear of all liens, encumbrances, equities or claims; and, upon
delivery of such Shares and payment therefor pursuant hereto and thereto,
good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several Underwriters or
the International Underwriters, as the case may be;
(iv) During the period beginning from the date that is 30 days
prior to the First Time of Delivery and continuing to and including the
date 90 days after the date of the Prospectus, such Selling Shareholder
shall not offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder or under the International Underwriting Agreement, any
shares of Common Stock or any securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that represent
the right to receive, Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities outstanding
as of, the date of this Agreement), without the prior written consent of
Xxxxxxx, Xxxxx & Co. and the Company;
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(v) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Stockholder expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed and
executed United States Treasury Department Form W-8 or Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof);
(viii) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Shareholder hereunder and under the
International Underwriting Agreement have been placed in custody under a
Custody Agreement, in the form heretofore furnished to you (the "Custody
Agreement"), duly executed and delivered by such Selling Shareholder to
First Union National Bank of North Carolina, as custodian (the "Custodian"),
and such Selling Shareholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the "Power of Attorney"),
appointing the persons indicated in Schedule II hereto, and each of them, as
such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to execute and deliver this Agreement and the International
Underwriting Agreement on behalf of such Selling Shareholder, to determine
the purchase price to be paid by the Underwriters and the International
Underwriters to the Selling Shareholders as provided in Section 2 hereof, to
authorize the delivery of the Shares to be sold by such Selling Shareholder
hereunder and otherwise to act on behalf of such Selling Shareholder in
connection with the transactions contemplated by this Agreement, the
International Underwriting Agreement and the Custody Agreement;
(ix) The Shares represented by the certificates held in custody
for such Selling Shareholder under the Custody Agreement are subject to the
interests of the
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Underwriters hereunder and the International Underwriters under the
International Underwriting Agreement; the arrangements made by such Selling
Shareholder for such custody, and the appointment by such Selling
Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable; the obligations of the Selling Shareholders hereunder
shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Shareholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by
the occurrence of any other event; if any individual Selling Shareholder or
any such executor or trustee should die or become incapacitated, or if any
such estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of the Selling Shareholders in
accordance with the terms and conditions of this Agreement, of the
International Underwriting Agreement and of the Custody Agreements; and
actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney
shall be as valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the Custodian,
the Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event;
(x) (a) If such Selling Shareholder was previously a shareholder
of Innovex Limited ("Innovex") and became a shareholder of the Company as a
result of receiving shares of stock of the Company in exchange for such
Selling Shareholder's shares of Innovex in connection with the acquisition
of Innovex by the Company, pursuant to the Share Exchange Agreement, dated
as of October 4, 1996 by and among the Company, Innovex and the shareholders
of Innovex (the "Exchange Agreement"), that all of the Shares being sold by
such Selling Shareholder hereunder and under the International Underwriting
Agreement were received pursuant to the Exchange Agreement or obtained
pursuant to the exercise of options to purchase Common Stock received
pursuant to the Exchange Agreement and not otherwise; and (b) if such
Selling Shareholder was previously a shareholder of BRI International, Inc.
("BRI") and became a shareholder of the Company as a result of receiving
shares of stock of the Company in exchange for such Selling Shareholder's
shares of BRI in connection with the acquisition of BRI by the Company,
pursuant to the Merger Agreement, dated as of September 16, 1996 by and
among the Company, BRI and the shareholders of BRI (the "Merger Agreement"),
that all of the Shares being sold by such Selling Shareholder hereunder and
under the International Underwriting Agreement were received pursuant to the
Merger Agreement and not otherwise; and
(xi) Any and all rights in the nature of those described in
Section 1(a)(xix) hereof to which such Selling Shareholder is entitled are
satisfied in full with respect to the registration and public offering
contemplated by this Agreement and the International Underwriting Agreement
by the inclusion of such
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Selling Shareholder's shares of Common Stock in the Registration
Statement, and such Selling Shareholder hereby waives any and all rights
whatsoever to have any additional securities included in the Registration
Statement.
2. Subject to the terms and conditions herein set forth, (a) each Selling
Shareholder agrees that the purchase price per share at which the Underwriters
will purchase Shares from such Selling Shareholder (as set forth in clause (b)
below) shall be the same as the purchase price per share at which the Company
sells shares to be purchased by the Underwriters from the Company hereunder,
(b) the Company and each of the Selling Shareholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and each of the
Selling Shareholders, at a purchase price per share of $......................,
the number of Firm Shares (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying the aggregate number of Firm Shares to be
sold by the Company and each of the Selling Shareholders as set forth opposite
their respective names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased by all of the Underwriters from the Company and all of the Selling
Shareholders hereunder and (c) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as
provided below, each of the Selling Shareholders identified with an asterisk in
Schedule II hereto, agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from each of the Selling Shareholders, at the purchase price per
share set forth in clause (b) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of Optional Shares
that all of the Underwriters are entitled to purchase hereunder.
The Selling Shareholders identified with an asterisk in Schedule II hereto,
hereby grant, severally and not jointly, to the Underwriters the right to
purchase at their election up to 480,000 Optional Shares, at the purchase price
per share set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares shall be made in proportion to the maximum number of Optional
Shares to be sold by each such Selling Shareholder as set forth in Schedule II
hereto. Any such election to purchase Optional Shares may be exercised only by
written notice from you to the Attorneys-in-Fact, given within a period of 30
calendar days after the date of this Agreement and setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional
Shares are to be delivered, as determined by you but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) or, unless
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you and the Attorneys-in-Fact otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least two full business days'
prior notice to the Company and the Selling Shareholders shall be delivered by
or on behalf of the Company and the Selling Shareholders to Xxxxxxx, Sachs &
Co., for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor in United States dollars by wire
transfer of immediately available funds to an account or accounts designated by
the Custodian and the Company. The Company and the Selling Shareholders will
cause the certificates representing the Shares to be made available for checking
and packaging at least one full business day prior to the Time of Delivery (as
defined below) with respect thereto at the office of Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York City time, on _________, 1997 or such other time and date as
Xxxxxxx, Sachs & Co., the Company and the Selling Shareholders may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York City
time, on the date specified by Xxxxxxx, Xxxxx & Co. in the written notice given
by Xxxxxxx, Sachs & Co. of the Underwriters' election to purchase such Optional
Shares, or such other time and date as Xxxxxxx, Xxxxx & Co., the Company and the
Selling Shareholders may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
each Time of Delivery. A meeting will be held at the Closing Location at
..............p.m., New York City time, on the New York Business Day next
preceding each Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
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(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus
prior to the last Time of Delivery which shall be reasonably objected to by
you promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement
to the Prospectus or any amended Prospectus has been filed and to furnish
you copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
Shares; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(c) Prior to 5:00 p.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required by law at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to
file
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under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify
you and upon your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter
is required by law to deliver a prospectus in connection with sales of any
of the Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as you may request of
an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option
of the Company, Rule 158);
(e)(i) During the period beginning from the date that is 30 days prior
to the First Time of Delivery and continuing to and including the 90th day
after the date of the Prospectus, the Company shall not, directly or
indirectly, offer, sell, contract to sell or otherwise dispose of any
shares of Common Stock, any securities of the Company which are
substantially similar to the Common Stock, including but not limited to any
other securities that are convertible into or exchangeable for, or that
represent the right to receive, any shares of Common Stock, or any such
substantially similar securities, other than (A) the Shares to be sold by
the Company pursuant to this Agreement and the International Underwriting
Agreement (B) shares of Common Stock issued pursuant to the Company's stock
option plans or agreements existing as of the date hereof, (C) shares of
Common Stock issued upon the conversion of securities of the Company
outstanding as of the date hereof, or (D) shares of Common Stock issued as
consideration for acquisitions of businesses, properties or assets,
provided, however, that each offeree, purchaser or other transferee of any
shares of Common Stock so issued in connection with any such acquisition
shall agree in writing for the benefit of the Underwriters and the
International Underwriters, in form and substance satisfactory to Xxxxxxx,
Sachs & Co., that all such shares of Common Stock shall remain subject to
the restrictions of this Section 5(e); and (ii) that it will use best
efforts to cause each person who has entered into a Lock-up Agreement to
comply therewith, will not grant any waivers or consents to non-compliance
therewith and will enforce its rights under each such agreement, in each
case unless and to the extent that it shall have obtained the prior
written consent of Xxxxxxx, Xxxxx & Co.;
(f) To furnish to its shareholders as soon as practicable after the end
of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company and
its consolidated
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subsidiaries certified by independent public accountants);
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you, upon request, copies of any
reports mailed to stockholders, together with the exhibits thereto, and
copies of all reports filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed, together
with the exhibits thereto;
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement and the International Underwriting Agreement in
the manner specified in the Prospectus under the caption "Use of Proceeds";
(i) To use its best efforts to list for quotation the Shares on the
National Association of Securities Dealers Automated Quotations National
Market System ("NASDAQ"); and
(j) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
6. The Company and each of the Selling Shareholders, jointly and severally,
covenant and agree with one another and with the several Underwriters that (a)
the Company will pay the following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the
International Underwriting Agreement, the Agreement between Syndicates, the
Selling Agreements, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky surveys; (iv) all fees and expenses in connection
with listing the Shares on the NASDAQ; and (v) the filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; and (b) the Company will pay or
cause to be paid: (i) the cost of preparing stock certificates; (ii) the cost
and charges of any transfer agent or
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registrar; (iii) the fees and expenses of the Attorney-in-Fact and the
Custodian; and (iv) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section; and (c) such Selling Shareholder will pay or cause to be paid all
costs and expenses incident to the performance of such Selling Shareholder's
obligations hereunder which are not otherwise specifically provided for in this
Section, including (i) any fees and expenses of counsel for such Selling
Shareholder, (ii) all expenses and taxes incident to the sale and delivery of
the Shares to be sold by such Selling Shareholder to the Underwriters hereunder.
In connection with Clause (c) (iii) of the preceding sentence, Xxxxxxx, Sachs &
Co. agrees to pay New York State stock transfer tax, and the Selling Shareholder
agrees to reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs if such
tax payment is not rebated on the day of payment and for any portion of such tax
payment not rebated. It is understood, however, that the Company shall bear, and
the Selling Shareholders shall not be required to pay or to reimburse the
Company for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and that, except as provided
in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery, with
respect to the incorporation of the Company, the validity of the Shares
being delivered by the Company at such Time of Delivery, the Registration
Statement, and the Prospectus as well as such other related matters as you
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters. In rendering such opinions,
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such counsel may rely as to all matters governed by North Carolina law
upon the opinion referred to in subsection (c) of this Section;
(c) Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P.,
counsel for the Company, shall have furnished to you their written opinion,
dated such Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the North Carolina, with
corporate power and authority to own its properties and conduct its business
as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares being delivered at such Time of Delivery) have been
duly authorized and validly issued, are fully paid and non-assessable and
are not subject to any preemptive rights under any North Carolina statute or
the Company's Amended and Restated Articles of Incorporation or Amended and
Restated Bylaws; and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a whole
(such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company and the significant subsidiaries of
the Company, provided that such counsel shall state that they believe that
both you and they are justified in relying upon such opinions and
certificates);
(iv) Each Significant Subsidiary of the Company has been duly
incorporated or otherwise formed as a non-corporate entity and is validly
existing as a corporation or other entity, as the case may be, in good
standing under the laws of the jurisdiction of its organization; with
corporate or other organizational power and authority to own its
properties and to conduct its business as described in the Prospectus and
has been duly qualified as a foreign corporation or other entity, as the
case may be, for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken as
a whole (such counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions and certificates);
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(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on the
current consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by the Company;
(vii) The issue and sale of the Shares, and the compliance
by the Company with all of the provisions of this Agreement and the
International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated will not contravene (A) any
provision of applicable federal or North Carolina law which in such
counsel's experience is normally applicable to transactions of the type
contemplated by this Agreement and the contravention of which would have a
material adverse effect on the business of the Company and its Significant
Subsidiaries, taken as a whole, (B) the Amended and Restated Articles of
Incorporation or Amended and Restated Bylaws of the Company, (C) any
agreement or other instrument filed as an exhibit to the Registration
Statement or incorporated by reference in the Prospectus, or (D) to the
best of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any Significant Subsidiary;
(viii) No consent, approval, authorization, order of, or
qualification with, any governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement and the International
Underwriting Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and distribution
of the Shares by the Underwriters and the International Underwriters;
(ix) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, under the caption "Certain
U.S. Federal Tax Considerations for Non-U.S. Holders of Common Stock", and
under the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
(x) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
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(xi) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein or other financial data derived from accounting records,
as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be, complied as
to form in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such documents
(other than the financial statements and related schedules therein or other
financial data derived from accounting records), when such documents became
effective or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, 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, in the case of other documents which were filed under the
Exchange Act with the Commission (other than the financial statements and
related schedules therein or other financial data derived from
accounting records), an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
documents were so filed, not misleading; and
(xii) (A) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules therein
or other financial data derived from accounting records, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and regulations thereunder;
(B) no facts have come to the attention of such counsel which lead them to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules therein or other
financial data derived from accounting records, as to which such counsel
need express no opinion) 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, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements
and related schedules therein or other financial data derived from
accounting records, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of
such Time of Delivery, either the Registration Statement or the Prospectus
or any further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules therein or other financial data derived from accounting records,
as to which such counsel need express no opinion) contains an untrue
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statement of a material fact or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and (C) and they do not know of any
amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required.
In rendering their opinions contained in this Section 7(c), such counsel may
state that they express no opinion as to the laws of any jurisdiction outside
the United States. In rendering the opinion contained in clause (vi) of this
Section 7(c), such counsel may rely as to all matters governed by New York law
upon the opinion referred to in subsection (b) of this Section 7. With respect
to the matters referred to in clause (xii)(B) of this Section 7(c), such counsel
may state that their opinion and belief are based upon their review of the
Registration Statement and the Prospectus and any amendments or supplements
thereto made by the Company prior to such Time of Delivery and participation in
conferences and discussions with officers and other representatives of the
Company, representatives of the independent public accountants for the Company,
and representatives of the Underwriters at which the contents of the
Registration Statement and the Prospectus and any amendments or supplements
thereto made by the Company prior to such Time of Delivery and related matters
were discussed and, that, except to the extent set forth in clause (ix) of this
Section 7(c), they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus and any amendments or supplements thereto made by
the Company prior to such Time of Delivery.
(d) The respective counsel for each of the Selling Shareholders, as
indicated in Schedule II hereto, each shall have furnished to you their written
opinion with respect to each of the Selling Shareholders for whom they are
acting as counsel, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Shareholder and constitute valid and
binding agreements of such Selling Shareholder in accordance with their
terms;
(ii) This Agreement and the International Underwriting Agreement
have been duly executed and delivered by or on behalf of such Selling
Shareholder; and the sale of the Shares to be sold by such Selling
Shareholder hereunder and thereunder and the compliance by such Selling
Shareholder with all of the provisions of this Agreement and the
International Underwriting Agreement, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Selling Shareholder is a
party or
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by which such Selling Shareholder is bound, or to which any of the
property or assets of such Selling Shareholder is subject, nor will such
action result in any violation of the provisions of the Articles of
Incorporation and By-laws or other governing instrument of such Selling
Shareholder if such Selling Shareholder is a corporation, the Partnership
Agreement of such Selling Shareholder if such Selling Shareholder is a
partnership, the governing trust agreement or other governing instrument of
such Selling Shareholder if such selling Shareholder is a trust, or any
order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over such Selling Shareholder or the
property of such Selling Shareholder;
(iii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement and the International
Underwriting Agreement in connection with the Shares to be sold by such
Selling Shareholder hereunder or thereunder, except such as shall have been
specified in such opinion which have been duly obtained and are in full
force and effect and such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of such Shares by
the Underwriters or the International Underwriters;
(iv) Immediately prior to such Time of Delivery such Selling
Shareholder had good and valid title to the Shares to be sold at such Time
of Delivery by such Selling Shareholder under this Agreement and the
International Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and authority to
sell, assign, transfer and deliver the Shares to be sold by such Selling
Shareholder hereunder and thereunder; and
(v) Good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to each of
the several Underwriters or International Underwriters, as the case may be,
who have purchased such Shares in good faith and without notice of any such
lien, encumbrance, equity or claim or any other adverse claim within the
meaning of the Uniform Commercial Code.
In rendering the opinion in subparagraph (iv) such counsel may rely upon a
certificate of such Selling Shareholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or claims on the Shares sold by
such Selling Shareholder, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such certificate;
(e) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery (A) Ernst & Young LLP
shall have furnished to you and the Company a letter or letters, dated the
respective date of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in Annex I(a) hereto, (B) Coopers & Xxxxxxx shall have
furnished to you and the Company a letter or letters, dated the respective date
of delivery thereof, in form and substance
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satisfactory to you, to the effect set forth in Annex 1(b) and (C) KPMG shall
have furnished to you and the Company a letter or letters, dated the respective
date of delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex 1(c).
(f) Since the respective dates as of which information is given in the
Prospectus, there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, taken as a whole, or
any change, or any development involving a prospective change, in the condition
(financial or otherwise) or the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in this subsection (f), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York State authorities; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in clause
(iv) above in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in this Agreement and in the Prospectus;
(i) The Shares to be sold by the Company and the Selling Shareholders at
such Time of Delivery shall have been duly listed for quotation on NASDAQ;
(j) The Company has obtained and delivered to the Underwriters executed
copies of the Lock-up Agreements referred to in Subsection 1(a)(xxii) hereof in
form and substance satisfactory to you;
(k) The Company and the Selling Shareholders shall have furnished or caused
to be furnished to you at such Time of Delivery certificates of officers of the
Company and of the Selling Shareholders, respectively, satisfactory to you as to
the accuracy of the representations and warranties of the Company and the
Selling Shareholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Shareholders of all of
their respective obligations hereunder
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23
to be performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request, and the Company shall have furnished or
caused to be furnished certificates as to the matters set forth in subsections
(a) and (f) of this Section, and as to such other matters as you may reasonably
request; and
(l) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will periodically reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Sachs & Co. or by any Selling Shareholder expressly for use
therein; and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Shares to a person as to whom it shall be established that there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference)
in any case where such delivery is required by the 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 the Preliminary
Prospectus which was identified in writing prior to the date hereof to such
Underwriter and corrected in the Prospectus (excluding document incorporated by
reference) or in the Prospectus as then amended or supplemented (excluding
documents incorporated by reference).
(b) Each of the Selling Shareholders will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are
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based upon (i) an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Selling Shareholder expressly for
use therein, or (ii) the failure of such Selling Shareholder at or prior to the
written confirmation of the sale of the Shares to be sold by such Selling
Shareholder to send or deliver a copy of an amended Preliminary Prospectus or
Prospectus (or the Prospectus as amended or supplemented) to the person
asserting any such losses, claims, damages or liabilities against any
Underwriter, which person purchased the Shares which are the subject thereof,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact made in such Preliminary Prospectus was corrected in
the amended Preliminary Prospectus or the Prospectus (or the Prospectus as
amended and supplemented); and each Selling Shareholder will periodically
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
amount of such indemnity shall be limited to the total net proceeds received by
each such Selling Shareholder from the offering of Shares purchased under this
Agreement (before deducting expenses).
(c) Each Underwriter will indemnify and hold harmless the Company and each
Selling Shareholder against any losses, claims, damages or liabilities to which
the Company or such Selling Shareholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will
reimburse the Company and each Selling Shareholder for any legal or other
expenses reasonably incurred by the Company or such Selling Shareholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a), (b)
or (c) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such
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subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (which shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action 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) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Shareholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Shareholders bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Shares purchased under this
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26
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, each of the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (e)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), (i) no Selling Shareholder shall be required
to contribute any amount by which the total price at which the Shares sold by
such Selling Shareholder and distributed to the public were offered to the
public (before deducting expenses) exceeds the amount of any damages that such
Selling Shareholder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, and (ii) no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The obligations of the Company and the Selling Shareholders under this
Section 8 shall be in addition to any liability which the Company and the
respective Selling Shareholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company or any Selling Shareholder within the meaning of the Act.
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27
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Shareholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Shareholders that you have so arranged for the purchase of such Shares,
or the Company and the Selling Shareholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Shareholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Shareholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Shareholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Shareholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Shareholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Shareholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Shareholders, except
for the expenses to be borne by the Company and the Selling Shareholders and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
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agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Shareholder, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Shareholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Shareholders as provided herein, the Company and each of
the Selling Shareholders pro rata (based on the number of Shares to be sold by
the Company and such Selling Shareholder hereunder) will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Shareholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any Selling Shareholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Shareholder made or given by any
or all of the Attorneys-in-Fact for such Selling Shareholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Shareholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Shareholder at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the
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Selling Shareholders by you upon request. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Shareholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us ..... counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Shareholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company and the Selling Shareholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
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Any person executing and delivering this Agreement as Attorney-in-Fact for a
Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Quintiles Transnational Corp.
By:
-----------------------------------------
Name:
Title:
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxx Xxxxx, Ph.D.
Xxxxxx X. Xxxxx
Xxxxxx Xxxxx Children's Settlement No. 1
Xxxxxx Xxxxx Children's Settlement No. 2
Xxxxx Xxxxxx Fleet
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx McCooke
By:
------------------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of the
above named Selling Shareholders.
HSBC Private Equity Investments Limited
Lloyds Development Capital Limited
MSS Nominees Limited (Account 758170)
MSS Nominees Limited (Account 758979)
MSS Nominees Limited (Account 757549)
MSS Nominees Limited (Account 778392)
General Accident Executor and Trustee
Company Limited (Account H715)
General Accident Executor and Trustee
Company Limited (Account H716)
By:
------------------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of the
above named Selling Shareholders.
Ludo X. Xxxxxxxx, Ph.X.
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
By:
------------------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of the
above named Selling Shareholders.
Accepted as of the date hereof at
:
-----------, ------------------------
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
By:
-----------------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
to be Purchased Exercised
Underwriter
-----------
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . .
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . .
Xxxxxxx Xxxxx & Company, L.L.C. . . . . . . . . . . . . . . .
[NAMES OF OTHER UNDERWRITERS] . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . .
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SCHEDULE II
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
to be Sold Exercised
The Company 940,000 0
The Selling Shareholders:
Xxxxxx X. Xxxxx(a) . . . . . . . . . . . . . . 289,268
Xxxxx X. Xxxxx(a) . . . . . . . . . . . . . . . 400
Xxxxx Xxxxx(a) . . . . . . . . . . . . . . . . . 800
Xxxx Xxxxx, Ph.D.(a) . . . . . . . . . . . . . 20,072
Xxxxxxx X. Xxxxx(a) . . . . . . . . . . . . . . 19,600
Xxxxxx X. Xxxxx(a) . . . . . . . . . . . . . . 36,158
Xxxxxx Xxxxx Children's Settlement No. 1(a) . . 18,080
Xxxxxx Xxxxx Children's Settlement No. 2(a) . . 18,080
HSBC Private Equity Investments Limited(b)* . . 1,030,485
Lloyds Development Capital Limited(b)* . . . . . 222,146
MSS Nominees Limited (Account 758170)(b)* . . . 74,494
MSS Nominees Limited (Account 758979)(b)* . . . 33,277
MSS Nominees Limited (Account 757549)(b)* . . . 298,016
MSS Nominees Limited (Account 778392)(b)* . . . 25,321
General Accident Executor and Trustee
Company Limited (Account H715)(b)* . . . . . . 99,339
General Accident Executor and Trustee
Company Limited (Account H716)(b)* . . . . . . 24,844
Xxxxx Xxxxxx Fleet(a) . . . . . . . . . . . . . 7,560
Xxxxxxxx X. Fleet(a) . . . . . . . . . . . . . . 8,000
Xxxxxxxx Xxxxxxx Xxxxxx(a) . . . . . . . . . . 2,526
Xxxxx-Xxx Xxxxxx(a) . . . . . . . . . . . . . . 2,526
Xxxxxxxx Xxxx McCooke(a) . . . . . . . . . . . 3,628
Xxxxx McCooke(a) . . . . . . . . . . . . . . . . 3,192
Xxxxxxxxxxx X. Xxxxxx(a) . . . . . . . . . . . . 2,854
Xxxxxx Xxxxxx(a) . . . . . . . . . . . . . . . . 2,854
Ludo X. Xxxxxxxx, Ph.D.(c) . . . . . . . . . . . 12,000
Xxxxx X. Xxxxx(c). . . . . . . . . . . . . . . . 4,000
Xxxxxxx X. Xxxxxx(c) . . . . . . . . . . . . . . 480
Total . . . . . . . . . . . . . . . . . . . . . 2,260,000 480,000
(a) This Selling Shareholder is represented by Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP and has appointed _______________ and _______________,
and each of them, as the Attorneys-in-Fact for such Selling Shareholder.
(b) This Selling Shareholder is represented by Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP and has appointed _______________ and _______________,
and each of them, as the Attorneys-in-Fact for such Selling Shareholder.
(c) This Selling Shareholder is represented by Smith, Anderson,
Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P. and has appointed _______________
and _______________, and each of them, as the Attorneys-in-Fact for such
Selling Shareholder.
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ANNEX I(A)
Pursuant to Section 7(e)(A) of the Underwriting Agreement, Ernst & Young LLP
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries, BRI International, Inc. and Xxxxx-VHI within the
meaning of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) of the Company and its subsidiaries, BRI
International, Inc. and Xxxxx-VHI examined by them and included or incorporated
by reference in the Registration Statement or the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial statements of the
Company or Xxxxx-VHI, as the case may be, for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the "Representatives") and
are attached hereto;
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or included
in the Company's Quarterly Reports on Form 10-Q incorporated by reference into
the Prospectus; and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the year ended
34
December 31, 1995* agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and items
were derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts
in the audited consolidated financial statements included or incorporated by
reference in the Prospectus for the year ended December 31, 1996;
--------------------
* Will refer to the 1996 Form 10-K if the same is filed in time to be
specifically incorporated by reference in the Prospectus.
2
35
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus and referred to in Clause
(B) were not determined on a basis substantially consistent with the basis
for the audited financial statements included or incorporated by reference
in the Prospectus for the year ended December 31, 1996;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or shareholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of the Company and its
3
36
subsidiaries, which appear in the Prospectus (excluding documents incorporated
by reference) or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the Representatives,
and have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found
them to be in agreement.
4
37
ANNEX I(B)
Pursuant to Section 7(e)(B) of the Underwriting Agreement, Coopers & Xxxxxxx
shall furnish letters to the Underwriters to the effect that, in their opinion,
the financial statements and any supplementary financial information and
schedules of BRI International, Inc. examined by them and included or
incorporated by reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the related published rules
and regulations thereunder.
38
ANNEX I(C)
Pursuant to Section 7(e)(C) of the Underwriting Agreement, KPMG shall
furnish letters to the Underwriters to the effect that:
(i) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) of the Innovex Companies, which
comprised a combination of Innovex PLC and Innovex Holdings Limited (the
"Combined Innovex Companies"), examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to form in
all material respects with the applicable accounting requirements of the Act or
the Exchange Act, as applicable, and the related published rules and regulations
thereunder;
(ii) They have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited condensed
consolidated statements of income, consolidated balance sheets, consolidated
statements of cash flows and consolidated total recognized gains and losses of
Innovex PLC and its subsidiaries included in the Company's Current Reports on
Form 8-K incorporated by reference into the Prospectus; and on the basis of
specified procedures including inquiries of officials of the Innovex PLC who
have responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(iii)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations;
(iii) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below,
inspection of the minute books of Innovex PLC and its subsidiaries since the
date of the latest audited financial statements of the Combined Innovex
Companies included or incorporated by reference in the Prospectus, inquiries of
officials of the Innovex PLC and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets, consolidated statements of cash flows and
consolidated total recognized gains and losses of Innovex PLC and its
subsidiaries
39
included in the Company's Current Reports on Form 8-K incorporated by
reference into the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets, consolidated statements
of cash flows and consolidated total recognized gains and losses of Innovex
PLC and its subsidiaries included in the Company's Current Reports on Form
8-K incorporated by reference into the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) were not determined on a basis
substantially consistent with the basis for the audited financial statements
of the Combined Innovex Companies included or incorporated by reference in
the Prospectus for the year ended March 31, 1996; and
(C) any unaudited pro forma consolidated condensed financial statements
of the Combined Innovex Companies or Innovex PLC and its subsidiaries
included or incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting requirements of
the Act and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;
2
