Exhibit 1.1
Xxxxxxxxx Xxxxxx Inc.
Common Stock
(par value $0.01 per share)
----------------------
Underwriting Agreement
July 29, 2002
Xxxxxxx, Sachs & Co.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Xxxxxxxxx Xxxxxx Inc., a Delaware corporation (the "Company"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
3,845,737 shares (the "Shares") of Common Stock, par value $0.01 per share
("Stock"), of the Company.
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. 333-91738) (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, 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 or will
become effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to you); and no stop
order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, 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 Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including 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, 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 or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Shares, in the
form in which it has
most recently been filed with the Commission on or prior to the date of
this Agreement is hereinafter called the "Prospectus"; and 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; and any reference
to the Prospectus as amended or supplemented shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the Shares in the
form in which it is filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing;
(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 or on behalf of an
Underwriter through you expressly for use therein or by a Selling
Stockholder 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 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 you expressly for use in the Prospectus as amended or
supplemented relating to the Shares or by a Selling Stockholder expressly
for use in the preparation of the answers therein to item 7 of Form S-3;
(iv) The Registration Statement and the Prospectus conform, 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 you expressly for use in the Prospectus as
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amended or supplemented relating to the Shares or by a Selling Stockholder
expressly for use in the preparation of the answers therein to item 7 of
Form S-3;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, 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 or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(vi) Each of the Company and each of its significant subsidiaries (as
defined in Rule 1-02 under Regulation S-X and including, for the avoidance
of doubt, Xxxxxxxxx Xxxxxx, LLC and Xxxxxxxxx Xxxxxx Management Inc.) owns
or leases all such properties as are necessary to the conduct of its
operations as presently conducted; neither the Company nor any subsidiary
is in non-compliance with any term or condition of, or has failed to obtain
and maintain in effect, any license, certificate, permit or other
governmental authorization required for the ownership or lease of its
property or the conduct of its business, which violation, non-compliance or
failure would individually or in the aggregate have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect") and the Company has not received
notice of any proceedings relating to the revocation or material
modification of any such license, certificate, permit or other
authorization, which revocation or material modification could reasonably
be expected to have a Material Adverse Effect;
(vii) Each of the Company and its subsidiaries has been duly
incorporated or organized and is validly existing in good standing under
the laws of the jurisdiction in which it is chartered or organized with all
requisite power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation
or organization and is in good standing under the laws of each jurisdiction
which requires such qualification, except in each case as would not, singly
or in the aggregate, have a Material Adverse Effect;
(viii) The Company's authorized, issued and outstanding capital stock
as of March 31, 2002 is as set forth in the Prospectus under the caption
"Capitalization"; the outstanding shares of Common Stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the stock contained in the
Prospectus; none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or similar rights of any
securityholder of the Company; all the outstanding shares of capital stock
of each of the Company's subsidiaries have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as may be
otherwise set forth in the Prospectus, all outstanding shares of capital
stock of such subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries, free and clear of any security
interests, claims, liens or encumbrances, except as would not reasonably be
expected to have a Material Adverse Effect;
(ix) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby;
(x) This Agreement has been duly authorized, executed and delivered by
the Company;
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(xi) The execution, delivery and performance of this Agreement and any
other agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions contemplated
hereby or in the Prospectus and the consummation of the transactions
contemplated herein and in the Prospectus (including the sale of the
Shares) and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with, result in a breach or violation of, or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to (i) the charter or by-laws of the
Company or any of its subsidiaries; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its or
their property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties,
other than, in the case of clauses (ii) and (iii), any breach, violation,
lien, charge or encumbrance that could not reasonably be expected to have a
Material Adverse Effect;
(xii) No consent, approval, authorization, order, registration or
qualification with any court or governmental agency or body is required for
the performance by the Company of its obligations hereunder, in connection
with the sale of the Shares or in connection with the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or will have been obtained prior to the Time of Delivery
(as defined in Section 4 hereof), such consents, approvals, authorizations,
registrations and qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Shares;
(xiii) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, except for such certificates, authorizations and permits as to
which the failure to so own, hold or possess would not have a Material
Adverse Effect, 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 any unfavorable decision, ruling or
finding, would result in a Material Adverse Effect;
(xiv) The Company is not required to be registered, licensed or
qualified as an investment adviser or a broker-dealer or as a commodity
trading advisor, a commodity pool operator or a future commission merchant
or any or all of the foregoing, as applicable; each of the Company's
subsidiaries that is required to be registered, licensed or qualified as an
investment adviser or a broker-dealer or as a commodity trading advisor, a
commodity pool operator or a futures commission merchant or any or all of
the foregoing, as applicable, is so registered, licensed or qualified in
each jurisdiction where the conduct of its business requires such
registration, license or qualification (and such registration, license or
qualification is in full force and effect), and is in compliance with all
applicable laws requiring any such registration, licensing or
qualification, except for any failures to be so registered, licensed or
qualified or to be in such compliance that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect;
(xv) The Company is not a party to any investment advisory agreement
or distribution agreement; each of the investment advisory agreements and
distribution agreements to which any of the Company's subsidiaries is a
party is a valid and legally binding obligation of such subsidiary which is
a party thereto and complies with the applicable provisions of the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), except
for any failures to be so in compliance that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect; and none of the Company's subsidiaries is in breach or violation of
or in default under any
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such agreement which breach, violation, default or invalidity, individually
or in the aggregate, would reasonably be expected to have a Material
Adverse Effect;
(xvi) The Company does not sponsor any funds; each fund sponsored by
any of the Company's subsidiaries (a "Fund" or the "Funds") and which is
required to be registered with the Commission as an investment company
under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), is duly registered with the Commission as an investment
company under the Investment Company Act, except for any failures to be so
registered that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect;
(xvii) Neither the Company nor any subsidiary is (i) in the case of
the Company or any material subsidiary, in violation of any provision of
its charter or bylaws, (ii) in default of the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject, or (iii) to the
knowledge of the Company in violation of any statute, law, rule,
regulation, judgment, order or decree of any federal, state, local or
foreign court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such
subsidiary or any of its or their properties, as applicable (including
without limitation Rule 15c3-1 under the Exchange Act), which violation or
default, in the case of clauses (ii) and (iii), would have a Material
Adverse Effect;
(xviii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summaryof the terms of the Stock and the Stockholders Agreement, and under
the captions "Management", "Principal and Selling Stockholders", "Certain
United States Income Tax Consequences for Non-United States Holders",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are, in all material respects, accurate and
fair summaries or descriptions thereof;
(xix) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby, or (ii) could reasonably be expected to have a Material Adverse
Effect, except, in the case of this clause (ii), as may be set forth in the
Prospectus; and no labor disturbance by or dispute with the employees of
the Company or any of its subsidiaries exists or is, to the best knowledge
of the Company, threatened or is imminent that could reasonably be expected
to have a Material Adverse Effect;
(xx) The historical consolidated financial statements and schedules of
the Company and its consolidated subsidiaries included or incorporated by
reference in the Prospectus present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated therein, comply as to form with
the applicable accounting requirements of the Act, the Exchange Act and the
applicable rules and regulations thereunder and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). The selected consolidated financial data incorporated in the
Prospectus by reference to the Annual Report of the Company on Form 10-K in
respect of the year ended December 31, 2001 and the Quarterly Report of the
Company on Form 10-Q in respect of the quarter ended March 31, 2002, fairly
present in all material respects, on the basis stated in such Annual Report
or Quarterly Report, as the case may be, the information included therein;
(xxi) The Company and each of its subsidiaries owns, possesses,
licenses, or has other rights to use all material patents, patent
applications, trade and service marks, trade and service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of
their respective business as now conducted, subject to such limitations on
the use of, or
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the rights to use such Intellectual Property that, individually or in the
aggregate, would not have a Material Adverse Effect;
(xxii) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
Material Adverse Effect) and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith
or as would not have a Material Adverse Effect;
(xxiii) The Company and each of its significant subsidiaries (as
defined in Rule 1-02 under Regulation S-X and including, for the avoidance
of doubt, Xxxxxxxxx Xxxxxx, LLC and Xxxxxxxxx Xxxxxx Management Inc.) are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect;
(xxiv) There are no holders of securities of the Company or any of its
subsidiaries who, by reason of the execution of this Agreement by the
Company or any of its subsidiaries or any Selling Stockholder, as the case
may be, or the consummation of the transactions contemplated hereby or
thereby, have or will have the right to request or demand the Company or
any of its subsidiaries or any Selling Stockholder to register under the
Act any securities held by them;
(xxv) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Act or the rules and regulations of the Commission
thereunder which have not been described in the Prospectus or filed as
exhibits to the Registration Statement or incorporated by reference
therein;
(xxvi) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended;
(xxvii) Xxxxxx Xxxxxxxx LLP, who certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to such audited consolidated financial statements
included in the Prospectus, were independent public accountants with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder for the periods so reported
prior to its replacement by the Company on April 23, 2002; KPMG LLP, who
have been engaged by the Company to certify future financial statements of
the Company and its consolidated subsidiaries, are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder;
(xxviii) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets to
the Company or any other subsidiary of the Company, except as is described
in the Prospectus;
(xxix) Neither the Company nor any of its subsidiaries is in violation
of any federal or state law or regulation relating to occupational safety
and health or to the storage, handling or transportation of hazardous or
toxic materials the Company and its subsidiaries have received all permits,
licenses or other approval required of them under applicable federal and
state occupational safety and health and environmental laws and regulations
to conduct their respective businesses, and the Company and each such
subsidiary is in compliance with all terms and conditions of any
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such permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which would not, singly or in the aggregate,
result in a Material Adverse Effect;
(xxx) The Company and each of its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with respect
to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company or its
subsidiaries are eligible to participate and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published interpretations,
other than such non-compliance that would not have a Material Adverse
Effect. The Company and its subsidiaries have not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course) or to any such plan under Title
IV of ERISA; and
(xxxi) The Company has not taken, and will not take, directly or
indirectly, any action prohibited by Regulation M under the Exchange Act
(to the extent applicable) in connection with the offering of the Shares.
(b) Each of the Selling Stockholders, severally and not jointly, 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 Stockholder of this Agreement
and the Power of Attorney described in clause (ix), and for the sale and
delivery of the Shares to be sold by such Selling Stockholder hereunder
have been obtained, except for the registration under the Act of the
Shares, the filing of any necessary amendment to any report on Schedule 13D
or 13G relating to the Company previously filed by such Selling
Stockholder, a waiver of the transfer restrictions set forth in the
Stockholders Agreement dated as of August 2, 1999 among the Company and the
stockholders named therein (the "Stockholders Agreement"), which has
previously been obtained, and such consents, approvals, authorizations,
registrations or qualifications as may be required under foreign or state
securities or Blue Sky laws; and such Selling Stockholder has full right,
power and authority to enter into this Agreement and the Power of Attorney
and to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement, and the Power of Attorney 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 Stockholder is a party or by which such Selling
Stockholder is bound, or to which any of the property or assets of such
Selling Stockholder is subject (other than the Stockholders Agreement, all
relevant restrictions of which have been waived in connection with the
transactions contemplated hereby), nor will such action result in any
violation of the provisions of the Certificate of Incorporation, By-laws,
Partnership Agreement or other organizational documents, as applicable, of
such Selling Stockholder or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling Stockholder, except
that such Selling Stockholder makes no representations under this
sub-paragraph (b)(ii) as to the registration or filing requirements or
disclosure provisions of the securities laws of the United States or the
securities or Blue Sky laws of any other jurisdiction, which
representations are contained elsewhere in this Agreement;
(iii) Such Selling Stockholder has, and immediately prior to the Time
of Delivery (as defined in Section 4 hereof), such Selling Stockholder will
have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances, equities
or
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claims (subject to the waiver of all restrictions under the Stockholders
Agreement, which such Selling Stockholder has previously obtained); upon
(i) payment for the Shares to be sold by such Selling Stockholder in
accordance with this Agreement, (ii) registration of the transfer of such
Shares to, and registration of such Shares in the name of, Cede & Co. or
other nominee designated by The Depository Trust Company ("DTC") and (iii)
the crediting of such Shares to the accounts maintained by DTC for the
several Underwriters, (A) the Underwriters will acquire "security
entitlements" (as defined in Section 8-102 of the Uniform Commercial Code
as currently in effect in the State of New York (the "UCC")) in respect of
such Shares and (B) no action based on an "adverse claim" (as defined in
Section 8-102 of the UCC) to such Shares may be asserted against the
Underwriters with respect to such security entitlements, assuming that each
Underwriter does not have "notice" (within the meaning of Section 8-105 of
the UCC) of any "adverse claim" (as defined in Section 8-102 of the UCC) to
such Shares;
(iv) This Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder;
(v) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date hereof, such Selling
Stockholder (other than the Xxxxxxxxx Xxxxxx Employee Defined Contribution
Incentive Plan Trust and any employees holding an interest therein) will
not, directly or indirectly, offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any shares of Stock or any other
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 (A) pursuant to employee
benefit plans or director compensation plans of the Company and agreements
with the Company relating to Stock and options to purchase shares of Stock,
in each case, existing at the Time of Delivery, (B) as contemplated by the
Stockholders Agreement, or (C) any offers, sales, contracts to sell or
other dispositions of Shares to the Company), without your prior written
consent;
(vi) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(vii) To the extent that, but only 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 or on behalf of 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;
(viii) 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 Stockholder will deliver to you prior to or at
the Time of Delivery (as defined in Section 4) a properly completed and
executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by Treasury Department regulations in lieu
thereof);
(ix) Certificates in negotiable form representing all of the Shares to
be sold by such Selling Stockholder hereunder have been placed in custody
with the Company as custodian (the "Custodian"), and such Selling
Stockholder has duly executed and delivered a Power of Attorney (the "Power
of Attorney"), appointing each of Xxxxxxx Xxxx, Xxxxxx Xxxxx and Xxxxx
Xxxxxxxxxx as
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such Selling Stockholder's attorney-in-fact (the "Attorney-in-Fact") with
authority to, among others, execute and deliver this Agreement on behalf of
such Selling Stockholder, to determine the purchase price to be paid by the
Underwriters to the Selling Stockholders as provided in Section 2 hereof,
to authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such Selling
Stockholder in connection with the transactions contemplated by this
Agreement; and
(x) The Shares represented by the certificates held in custody for
such Selling Stockholder will be subject to the interests of the
Underwriters hereunder; the arrangements made by such Selling Stockholder
for such custody, and the appointment by such Selling Stockholder of the
Attorney-in-Fact by the Power of Attorney, are to that extent irrevocable;
the obligations of the Selling Stockholders hereunder shall not be
terminated by operation of law, whether by the death or incapacity of any
individual Selling Stockholder 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, corporation or other
entity, by the dissolution of such partnership, corporation or other
entity, or by the occurrence of any other event; if any individual Selling
Stockholder 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, corporation or other entity 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 Stockholders in accordance with the terms and
conditions of this Agreement, and actions taken by the Attorney-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 Attorney-in-Fact, or any of
them, shall have received notice of such death, incapacity, termination,
dissolution or other event.
2. Subject to the terms and conditions herein set forth, each of the
Selling Stockholders 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 each of the Selling Stockholders, at a purchase price per share of
$30.54, the number of Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Shares to
be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is
the aggregate number of 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 Shares to be purchased by all of the
Underwriters from all of the Selling Stockholders hereunder.
3. Upon the authorization by you of the release of the Shares, the several
Underwriters propose to offer the Shares for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented relating to the Shares.
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 you may request upon at least forty-eight hours' prior notice to the
Selling Stockholders shall be delivered by or on behalf of the Selling
Stockholders to you, through the facilities of DTC, for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the account
specified by the Custodian to you at least forty-eight hours in advance. The
Selling Stockholders will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be 9:30 a.m., New York City time, on August 1,
2002 or such other time and date as you and the Selling Stockholders may agree
upon in writing. Such time and date for delivery of the Shares is herein called
the "Time of Delivery".
(b) The documents to be delivered at the 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(g) hereof, will be delivered at the offices of Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"), and the
9
Shares will be delivered at the Designated Office, all at the Time of Delivery.
A meeting will be held at the Closing Location at 3:00 p.m., New York City time,
on the New York Business Day next preceding the 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 (and Section 5(c) hereof), "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:
(a) To prepare the Prospectus as amended and supplemented in relation to
the Shares 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 424(b) under the
Act; to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date hereof and
prior to the Time of Delivery which shall be reasonably disapproved by you
promptly after reasonable notice thereof; to advise you promptly of any such
amendment or supplement after the Time of Delivery for the Shares and furnish
you with copies 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 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 relating to the Shares, 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 such stop order or of any such order preventing or suspending
the use of any Preliminary Prospectus or Prospectus relating to the Shares 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 or take
any action that would subject the Company to any material tax to which it would
not otherwise be subject in any jurisdiction;
(c) Prior to 10:00 a.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 as amended or supplemented in New
York City in such quantities as you may reasonably request, and, if the delivery
of a prospectus is required at any time prior to the expiration of nine months
after the date hereof in connection with the offering or sale of the Shares and
if at such time any event 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 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 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;
10
(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)
under the Act;
(e) During the period beginning from the date hereof and continuing to and
including the date 90 days after the date hereof, not to, directly or
indirectly, offer, sell, contract to sell or otherwise dispose of (other than
transfers for clients, conducted in the ordinary course of its brokerage
activities), except as provided hereunder, any shares of Stock or any other
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, without your prior written consent.
Notwithstanding the foregoing, the restrictions set forth in this section shall
not apply to (A) the Shares to be sold hereunder, (B) Stock issued, but not
sold, to individuals in connection with their being hired as employees of the
company or a subsidiary, (C) any shares of Stock issued by the Company upon the
exercise of an option or warrant or upon the conversion of a security
outstanding on the date hereof, a list of which is attached hereto as Schedule
5(e), (D) any shares of Stock issued or options to purchase Stock granted
pursuant to existing employee benefit plans or director compensation plans of
the Company, (E) agreements to sell, or issuances of, securities to strategic
investors or in connection with acquisitions, joint ventures and other strategic
business objectives, so long as those persons to whom the Company issues such
securities agree not to sell them for the then remaining portion of the 90 day
lock-up period, and (F) the issuance of the shares of Stock issuable upon
conversion of the Company's Liquid Yield Option Notes Due 2021;
(f) To (i) furnish to its stockholders after the end of each fiscal year,
an annual report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and (ii) make
available after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail, in each case
no later than required by the rules and regulations of the Commission or any
national securities exchange on which any securities of the Company may be
listed;
(g) During a period of three years from the effective date of the
Registration Statement, to make available to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To file with the Commission such information on Form 10-Q or Form 10-K
as may be required under the Exchange Act; and
(i) If the Company elects to rely upon Rule 462(b), to 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 at the
time of such 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 covenants and agrees with the several Underwriters that
it will pay or cause to be paid 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
11
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, the Custody
Agreements and Powers of Attorney by the Selling Stockholders, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) the cost of
preparing stock certificates; (iv) the cost and charges of any transfer agent or
registrar; (v) any expenses and taxes incident to the sale and delivery of the
Shares to be sold by the Selling Stockholders to the Underwriters and (vi) all
other costs and expenses incident to the performance of each Selling
Stockholder's obligations hereunder (other than fees and expenses of individual
counsel for such Selling Stockholder which is not counsel to the Selling
Stockholders as a group) which are not otherwise specifically provided for in
this Section. In connection with (v) of the preceding sentence, you agree to pay
any required New York State stock transfer tax, and such Selling Stockholders
agree to reimburse you 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 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 12 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 shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and of the Selling Stockholders herein are, at and as
of the Time of Delivery, true and correct, the condition that the Company and
the Selling Stockholders shall have performed all of its and their obligations
hereunder theretofore to be performed and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
Shares 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) under the Act, 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) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions (a draft of
each such opinion is attached as Annex II(a) hereto), dated the Time of
Delivery, with respect to the incorporation of the Company, the validity of
the Shares being delivered at the 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;
(c) Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Annex II(b) hereto), dated the 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 State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented in relation to the Shares;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented in relation to the Shares,
and all of the issued and outstanding shares of capital stock of the
Company (including the Shares being delivered at the Time of Delivery)
have been duly and validly authorized and issued and are
12
fully paid and non-assessable; and the Shares conform to the
description of the Stock contained in the Prospectus as amended or
supplemented in relation to the Shares;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business in New York and is in good
standing under the laws of each state set forth below its name on
Annex III hereto, (such counsel being entitled to rely in respect of
the opinion in this clause upon certificates of government officials
in the relevant jurisdictions regarding the Company's qualification as
a foreign corporation and good standing 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);
(iv) Xxxxxxxxx Xxxxxx LLC ("NB LLC") has been duly formed and is
validly existing as a limited liability company in good standing under
the laws of the State of Delaware; all of the membership interests of
NB LLC have been validly issued in accordance with applicable law and
the limited liability company agreement of NB LLC, and are owned
directly by the Company; and NB LLC is duly qualified as a foreign
limited liability company to transact business, and is in good
standing in each state set forth below its name on Annex III hereto
(such counsel being entitled to rely in respect of the opinion in this
clause upon certificates of government officials in the relevant
jurisdictions regarding the Company's qualification as a foreign
corporation and good standing and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
Xxxxxxxxx Xxxxxx Management Inc. ("NBMI") has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of New York; all of the issued and outstanding
shares of capital stock of NBMI have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned directly
by the Company; and NBMI is duly qualified as a foreign corporation to
transact business, and is in good standing in each state set forth
below its name on Annex III hereto (such counsel being entitled to
rely in respect of the opinion in this clause upon certificates of
government officials in the relevant jurisdictions regarding the
Company's qualification as a foreign corporation and good standing and
in respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in relying upon
such opinions and certificates);
(v) To such counsel's knowledge and other than as set forth in
the Prospectus as amended or supplemented in relation to the Shares,
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 that,
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect, would reasonably be expected to materially
and adversely affect the sale of the Shares or would affect the
validity of this Agreement; and, to the best of such counsel's
knowledge, no such proceedings are threatened by governmental
authorities or others;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated (a) 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 indenture, loan agreement or other agreement listed
on Annex IV hereto, (b) result in any violation of the provisions of
the Certificate of Incorporation or By-laws or other organizational
documents of the Company, NB LLC or NBMI or (c) to such counsel's
knowledge, result in any violation of any New York, Delaware corporate
or United States federal statute, order, rule or regulation (other
than State
13
securities or Blue Sky laws as to which such counsel need express no
opinion, and other than United States federal securities laws, as to
which such counsel need express no opinion except as otherwise
specifically set forth herein), or any order known to such counsel of
any New York, Delaware (insofar as Delaware corporate and limited
liability company law is concerned) or United States federal court or
governmental agency or body having jurisdiction over the Company, NB
LLC or NBMI or any of their properties, except, in the case of clauses
(a) and (c) above, any conflicts, breaches, defaults or violations
that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect or impair the ability of
the Company to perform its obligations under, or consummate the
transactions contemplated by this Agreement;
(viii) To such counsel's knowledge, no consent, approval,
authorization, order, registration or qualification of or with any New
York, Delaware (insofar as Delaware corporate and limited liability
company law is concerned) or United States federal court or
governmental agency or body is required for the sale of the Shares or
the consummation by the Company or any of its subsidiaries of the
transactions contemplated by this Agreement, except the registration
under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(ix) The statements set forth in the Prospectus as amended or
supplemented in relation to the Shares under the caption "Description
of Capital Stock", insofar as they purport to constitute a summary of
the terms of the Stock and the Stockholders Agreement, and under the
caption "Certain United States Income Tax Consequences for Non-United
States Holders", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are in all material
respects accurate and fair summaries or descriptions thereof;
(x) Such counsel does not know of any contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Act or by the rules and regulations
thereunder which have not been filed as exhibits to the Registration
Statement;
(xi) The Company is not required to be registered, licensed or
qualified as an investment adviser or a broker-dealer or as a
commodity trading advisor, a commodity pool operator or a futures
commission merchant or any or all of the foregoing, as applicable;
each of NB LLC and NBMI is registered as an investment adviser under
the Advisers Act (and such registration is in full force and effect);
each of NB LLC and NBMI is registered as a broker-dealer under the
Exchange Act (and such registration is in full force and effect); NB
LLC is registered as a commodity trading advisor, commodity pool
operator and futures commission merchant under the Commodity Exchange
Act (the "CEA") (and such registration is in full force and effect);
(xii) Neither the Company, NB LLC nor NBMI is, and, after giving
effect to the offering and sale of the Shares, will be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act;
(xiii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related notes and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, including data
with respect to assets under management, 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;
14
(xiv) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery (other than the financial
statements, related notes and schedules and other financial data
included or incorporated by reference therein or omitted therefrom,
including data with respect to assets under management, 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;
(xv) A Power of Attorney has been duly executed and delivered by
each Selling Stockholder identified on Annex V and constitutes a valid
and legally binding agreement of each such Selling Stockholder in
accordance with the terms therein, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
(xvi) This Agreement has been duly executed and delivered by or
on behalf of each Selling Stockholder identified on Annex V; and
(xvii) Upon (i) payment for the Shares to be sold by the Selling
Stockholders in accordance with this Agreement, (ii) registration of
the transfer of such Shares to, and registration of such Shares in the
name of, Cede & Co. or other nominee designated by DTC and (iii) the
crediting of such Shares to the accounts maintained by DTC for the
several Underwriters, assuming that such accounts are "securities
accounts" (as defined in Section 8-501 of the UCC), (A) the
Underwriters will acquire "security entitlements" (as defined in
Section 8-102 of the UCC) in respect of such Shares and (B) no action
based on an "adverse claim" (as defined in Section 8-102 of the UCC)
to such Shares may be asserted against the Underwriters with respect
to such security entitlements, assuming that each Underwriter does not
have "notice" (within the meaning of Section 8-105 of the UCC) of any
"adverse claim" (as defined in Section 8-102 of the UCC) to such
Shares. In rendering the opinion in subparagraph (xvii) such counsel
may rely upon a certificate of such Selling Stockholder in respect of
matters of fact as to ownership of, and liens, encumbrances, equities
or claims on the Shares sold by such Selling Stockholder, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such certificate.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Underwriters and representatives of counsel for the
Underwriters, at which conferences the contents of the Registration
Statement and the Prospectus as amended or supplemented and related matters
were discussed, and, although such counsel has not independently verified
and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus as amended or supplemented, except to the
extent specified in subsection (ix) of this Section 7(c), no facts have
come to such counsel's attention which leads such counsel to believe that
the Registration Statement, as of its effective date, (other than the
financial statements, related notes and schedules and other financial data
included or incorporated by reference therein or omitted therefrom,
including data with respect to assets under management, 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 as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements, related notes and schedules
and other financial data included or incorporated by reference therein or
omitted therefrom, including data with respect to assets under management,
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, in the
light of the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, either the Registration Statement or the
Prospectus
15
as amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the financial
statements, related notes and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, including data
with respect to assets under management, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits 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;
(d) On the date of this Agreement, at 9:30 a.m., New York City time,
and also at the Time of Delivery, KPMG LLP shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in the
form of Annex I(a) hereto (a draft of the form of letter to be delivered as
of the Time of Delivery is attached as Annex I(b) hereto); prior to the
execution of this Agreement, Xxxxxx Xxxxxxxx LLP shall have furnished to
you a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in Annex II
hereto;
(e) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the persons identified on
Annex VI hereto substantially to the effect set forth in Subsection 5(e)
hereof in form and substance satisfactory to you;
(f) 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; and
(g) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at the Time of Delivery certificates of
officers of the Company and of the Selling Stockholders, respectively,
reasonably satisfactory to you as to the accuracy of the representations
and warranties of the Company and the Selling Stockholders, respectively,
herein at and as of the Time of Delivery, as to the performance by the
Company and the Selling Stockholders of all of their respective obligations
hereunder to be performed at or prior to the 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 subsection (a) of this Section and subsections 11(a)(i) and (ii),
and as to such other matters as you may reasonably request.
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, any preliminary
prospectus supplement, the Registration Statement or the Prospectus as amended
or supplemented, 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 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, any preliminary prospectus supplement, the
Registration Statement or the Prospectus as amended or supplemented, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein.
(b) Each of Selling Stockholders, severally and not jointly, will indemnify
and hold harmless each Underwriter in proportion to the maximum number of Shares
sold by such Selling Stockholder as set forth in Schedule II hereto, 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, any preliminary
prospectus
16
supplement, the Registration Statement or the Prospectus as amended or
supplemented, 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 but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement or
the Prospectus as amended or supplemented, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use therein, and will
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 such
Selling Stockholder 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, any preliminary prospectus supplement, the
Registration Statement or the Prospectus as amended or supplemented, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein; provided, further, that the liability of a
Selling Stockholder pursuant to this Section 8(b) shall not exceed the amount of
net proceeds received by such Selling Stockholder from the sale of its Shares
pursuant to this Agreement.
(c) Each Underwriter will indemnify and hold harmless the Company and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder 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, any
preliminary prospectus supplement, the Registration Statement or the Prospectus
as amended or supplemented, 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, any preliminary prospectus
supplement, the Registration Statement or the Prospectus as amended or
supplemented, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter through you expressly for use therein; and will reimburse the
Company and each Selling Stockholder, as the case may be, for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder 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 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 reasonably satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party); provided, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar actions or
proceedings arising out of the same general allegations, be liable for the fees
and expenses of more than one separate firm of attorneys at any time for all
Indemnified Persons except to the extent that local counsel, in addition to its
regular counsel, is required in order to effectively defend against such action
or proceeding, 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
17
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. An indemnifying party shall not be liable under this
Section 8(d) to any indemnified party regarding any settlement or compromise 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 indemnifying party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(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 Stockholders 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 Stockholders on the one hand and the
Underwriters on the other to the Agreement 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
Stockholders taken together 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 Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
shares purchased under this Agreement, and for the purpose of the allocation of
benefits under this sentence the Company shall be deemed to have received all of
the benefits received by the Selling Stockholders, to the sum of the total net
proceeds from the sale of the Shares (before deducting expenses) in the
offering. 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 respectively, by the Company, the Selling Stockholders or the
Underwriters 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 Stockholders 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 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 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 and (ii) no Selling Stockholder shall be required
to contribute an amount in excess of the amount of net proceeds received by such
Selling Stockholder from the sale of its Shares pursuant to this Agreement. 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.
(f) The obligations of the Company and the Selling Stockholders under this
Section 8 shall be in addition to any liability which the Company, and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
18
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 Stockholder within the meaning of the Act.
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 Selling Stockholders 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 Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholders shall have the right to postpone the
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 as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus as amended or supplemented 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 Selling
Stockholders 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 the Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at the 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 Selling
Stockholders 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 the Time of Delivery, or if the Selling
Stockholders 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 shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company
and the Selling Stockholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution 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 Stockholders 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 Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
11. (a) The Underwriters may terminate this Agreement, by notice to the
Company and the Selling Stockholders, (i) (A) if the Company or any of its
subsidiaries shall have sustained at any time since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented prior to the date hereof and at or prior
to the Time of Delivery any loss or
19
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the date
hereof, or (B) if there has been, since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to the
date hereof, any material adverse change in the condition, financial or
otherwise, or in the earnings, capital stock, long-term debt, stockholders'
equity or results of operations, or the management, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if after the
date hereof and at or prior to the Time of Delivery there has been a downgrading
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, or if any such
organization has publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's debt
securities, or (iii) if after the date hereof and at or prior to the Time of
Delivery there has occurred any outbreak of hostilities or escalation thereof
involving the United States or the declaration by the United States of a
national emergency or war, or other calamity or crisis or any change in
political, financial or economic conditions in the United States or elsewhere,
in each case described in clauses (i), (ii) and (iii) the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares, or (iv) if after the date hereof and at or prior to the Time of Delivery
trading in any securities of the Company has been suspended or materially
limited by the New York Stock Exchange, or if trading generally on the the New
York Stock Exchange has been suspended or materially limited, or a material
disruption has occurred in securities settlement or clearance services in the
United States, or (v) if after the date hereof and at or prior to the Time of
Delivery a banking moratorium has been declared by either Federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 6 hereof, and provided further that Sections 1, 8, and 10
shall survive such termination and remain in full force and effect.
12. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders 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
Selling Stockholders as provided herein, the Company 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 Stockholders 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.
13. 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 as the representative; and in all dealings with any Selling
Stockholder hereunder, you and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by the Attorney-in-Fact for such Selling Stockholder.
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 representative at Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder 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: Xxxxx Xxxxxxxxxx,
Esq., General Counsel; provided, however, that any notice to an Underwriter
pursuant to Section 8(d) 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 of the Selling Stockholders
20
by you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders 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 Stockholder, 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.
15. 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.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
17. 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.
18. The Company and the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriters imposing any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us four 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 Stockholders. 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, the form of which shall be
submitted to the Company and the Selling Stockholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
21
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Xxxxxxxxx Xxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name:
Title:
The Selling Stockholders listed in
Schedule II hereto
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name:
Title: As Attorney-in-Fact acting on
behalf of each of the Selling
Stockholders named in Schedule II
to this Agreement.
Accepted as of the date hereof
in New York, New York:
Xxxxxxx, Sachs & Co.
/s/ Xxxxxxx, Xxxxx & Co.
--------------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
22
SCHEDULE I
Total Number
of Shares
to be Sold
--------------
Underwriter
Xxxxxxx, Xxxxx & Co. 3,461,163
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 384,574
---------
Total ................................... 3,845,737
=========
SCHEDULE II
Total Number
of Shares
to be sold
The Selling Stockholders(a): -------------
Xxxxxxxxx Xxxxxx Employee Defined Contribution Stock Incentive
Plan Trust (on behalf of certain employees of Xxxxxxxxx Xxxxxx) 1,083,144
Xxxxx, Xxxxxx X. 100,000
Xxxxxx, Xxxx 87,739
Xxxx, Xxxxxxxx X. 32,154
D'Alelio, Xxxxxx X. 20,000
X'Xxxx, Xxxxxxxxx 14,246
Francfort 1998 Grantor Retained Annuity Trust 75,000
Xxxxx, Xxxxxx X. 167,884
Xxxxxxxxx, Xxxxxx 47,144
Xxxxxxxx, Xxxxxxxx 65,491
Kamen, Xxxxxxx X. 63,840
Xxxxxx, Xxxxxxx X. 80,000
Xxxxxxx, Xxxxx 101,794
Lainoff Associates, L.P. 47,509
Xxxx, Xxxxxxx X. 50,000
Xxxxxx, Xxxxxxx X. 49,336
XxXxxxxx, Xxxxxx 36,000
Xxxxxxxxx Associates, L.P. 149,302
Neuberger Associates, L.P. 10,459
Xxxxxxx, Xxxxxx X. 80,000
Xxxxxxx Associates, L.P. 20,000
Xxxxxxx 1998 Grantor Retained Annuity Trust 37,000
Xxxxxxx, Xxxxx 75,000
Risen, Xxxxx X. 55,490
Xxxxxxxxxx, Xxxxxx X. 25,000
Xxxxxxxxx, Xxxxx X. 20,000
Xxxxxxxx XX Associates, L.P. 225,000
Xxxxxxxx XX Associates, L.P. 225,000
Xxxxxx, Xxxxxx X. 50,000
The Xxxxxx 1998 Trust 5,000
Xxxxxx, Xxxxxx 32,079
Xxxxx, Xxxxxxx 10,607
Xxxxx, Xxxx 150,000
Sterne, Xxxxxxx Xxxxx 25,000
Xxxxxxx, Xxxxx 35,000
Vale, Xxxxxx X. 65,000
Xxxxxx, Xxxxx X. 30,000
Xxxxxxxx, Xxxxxxxx 269,932
Xxxxxxxx Associates, L.P. 73,931
White III, Xxxxx X. 55,656
---------
Total 3,845,737
=========
(a) Each of the Selling Stockholders has appointed each of Xxxxxxx Xxxx,
Xxxxxx Xxxxx and Xxxxx Xxxxxxxxxx as the Attorney-in-Fact for such
Selling Stockholder.
SCHEDULE 5(e)
Plan Number of Shares
---- ----------------
1999 Xxxxxxxxx Xxxxxx Inc. Long-Term Incentive Plan 5,882,071
1999 Xxxxxxxxx Xxxxxx Inc. Directors Stock Incentive Plan 89,738
ANNEX I(a)
[KPMG LLP Comfort Letter at Pricing]
ANNEX I(b)
[KPMG LLP Bring-Down Letter at Closing]
ANNEX II
[Xxxxxxxx Draft Comfort Letter]
ANNEX II(a)
[Opinion and Negative Comfort Letter of Cleary, Gottlieb, Xxxxx & Xxxxxxxx]
ANNEX II(b)
[Opinion of Willkie, Xxxx & Xxxxxxxxx]
ANNEX III
Xxxxxxxxx Xxxxxx Inc.
---------------------
None
Xxxxxxxxx Xxxxxx Management Inc.
--------------------------------
California
Georgia
Illinois
Maryland
Massachusetts
Texas
Xxxxxxxxx Xxxxxx, LLC
---------------------
California
District of Columbia
Florida
Georgia
Illinois
Massachusetts
Missouri
New York
North Dakota
Ohio
Oklahoma
Pennsylvania
Texas
ANNEX IV
1. Plan of Merger and Exchange Agreement, dated as of August 2, 1999, by and
among Xxxxxxxxx Xxxxxx Inc., Xxxxxxxxx Xxxxxx, LLC, the members of
Xxxxxxxxx Xxxxxx, LLC, Xxxxxxxxx Xxxxxx Management Inc., the shareholders
of Xxxxxxxxx Xxxxxx Management Inc. and Xxxxxxxxx Xxxxxx Sub Inc., a New
York corporation.
2. Amendment No. 1, dated as of September 30, 1999, to the Plan of Merger and
Exchange Agreement, dated as of August 2, 1999.
3. Stockholders Agreement, dated as of August 2, 1999, by and among Xxxxxxxxx
Xxxxxx Inc. and the stockholders named therein.
4. Non-Competition Agreement, dated as of August 2, 1999, by and among the
Company and the stockholders named therein.
5. Form of Employment Agreement, dated August 2, 1999, between Xxxxxxxxx
Xxxxxx, LLC and each continuing principal.
6. Subordinated Note Purchase Agreement, dated September 1, 1999, between
Xxxxxxxxx Xxxxxx, LLC and The Travelers Insurance Company.
7. $10,000,000 Floating Rate Subordinated Note due September 1, 2004, issued
by Xxxxxxxxx Xxxxxx, LLC to Tral & Co. on September 1, 1999.
8. $25,000,000 Floating Rate Subordinated Note due September 1, 2004, issued
by Xxxxxxxxx Xxxxxx, LLC to Tral & Co. on September 1, 1999.
9. Purchase Agreement, dated April 30, 2001, between Xxxxxxxxx Xxxxxx Inc. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
10. Indenture, dated as of May 4, 2001, between Xxxxxxxxx Xxxxxx Inc. and The
Bank of New York.
11. Registration Rights Agreement, dated as of May 4, 2001, by and between
Xxxxxxxxx Xxxxxx Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
12. First Supplemental Indenture, dated as of May 2, 2002, between Xxxxxxxxx
Xxxxxx Inc. and The Bank of New York.
ANNEX V
Xxxxx, Xxxxxx X.
Xxxxxx, Xxxxxxx
Xxxx, Xxxxxxxx X.
D'Alelio, Xxxxxx X.
X'Xxxx, Xxxxxxxxx
Xxxxx, Xxxxxx X.
Xxxxxxxxx, Xxxxxx
Xxxxxxxx, Xxxxxxxx
Xxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxx
Xxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx X.
XxXxxxxx, Xxxxxx
Xxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxx
Risen, Xxxxx X.
Xxxxxxxxxx, Xxxxxx X.
Xxxxxxxxx, Xxxxx X.
Xxxxxxxx CS Associates, X.X.
Xxxxxxxx ES Associates, X.X.
Xxxxxx, Xxxxxx X.
Xxxxxx, Xxxxxx
Xxxxx, Xxxxxxx
Xxxxx, Xxxx
Xxxxxx, Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx
Xxxx, Xxxxxx X.
Xxxxxx, Xxxxx X.
Xxxxxxxx, Xxxxxxxx
Xxxxx III, Xxxxx X.
Xxxxxxxxx Xxxxxx Employee Defined Contribution Stock Incentive Plan Trust
ANNEX VI
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxxx, Jr.
Xxx X. Xxxxxxx
Xxxxxx Xxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx Associates, L.P.
Zicklin Associates, L.P.
