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Draft of August 19, 1998
XXXXXXXXX XXXXXX INC.
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
-, 1998
Xxxxxxx, Sachs & Co.,
[Names of Co-Representatives,]
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:
Xxxxxxxxx Xxxxxx Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of - shares and, at the election of the Underwriters, up to - additional shares
of Common Stock, par value $0.01 per share ("Stock"), of the Company, and the
stockholders of the Company named in Schedule II hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of - shares and, at the election of the
Underwriters, up to - additional shares of Stock. The aggregate of - shares to
be sold by the Company and the Selling Stockholders is herein called the "Firm
Shares" and the aggregate of - additional shares to be sold by the Company and
the Selling Stockholders is herein called the "Optional Shares". The Firm Shares
and the Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Stockholders of up to a total of - shares of Stock (the
"International Shares"), including the overallotment option thereunder, through
arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom Xxxxxxx Sachs International and are
acting as lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages. Except as used in Sections 2, 3, 4, 9 and 11 herein, and
except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
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Reference in this Agreement to "subsidiaries" of the Company shall be
deemed to include entities that will become subsidiaries of the Company upon
consummation of the transactions contemplated in the Plan of Merger and Exchange
Agreement, dated as of August 19, 1998 (the "Exchange Agreement"), among the
Company, Xxxxxxxxx & Xxxxxx LLC ("NB LLC"), Xxxxxxxxx & Xxxxxx Management
Incorporated ("NBMI"), Xxxxxxxxx Xxxxxx Sub Inc., and the principals and family
affiliates named on Schedule I and II thereof (collectively, the "Management
Stockholders") and, prior to consummation of such transactions, NB LLC and NBMI
and their respective subsidiaries.
1. (a) Each of the Company, NB LLC and NBMI represents and
warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333--) (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, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission;
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
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective, 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"; and such final prospectus, in the form first filed pursuant
to Rule 424(b) under the Act, is hereinafter called the "Prospectus");
(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 Xxxxxxx, Sachs & Co.
expressly for use therein or by a Selling Stockholder expressly for use
in the preparation of the answers therein to Items 7 and 11(l) of Form
S-1;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the
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Company by or on behalf of an Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein or by a Selling Stockholder expressly for use
in the preparation of the answers therein to Items 7 and 11(l) of Form
S-1;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included 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;
(v) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them and material to
the business of the Company and its subsidiaries taken as a whole, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not materially interfere with
the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries and material to the business
of the Company and its subsidiaries taken as a whole are held by them
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and
its subsidiaries;
(vi) 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 power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except for any failures
to be so qualified or in good standing that, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect on the general affairs, management, financial condition,
stockholders' equity, results of operations or prospects of the Company
and its subsidiaries taken as a whole (a "Material Adverse Effect");
(vii) 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, with power and authority to own its properties and conduct
its business as described in the Prospectus and has been duly qualified
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except for
any failures to be so qualified or in good standing that, individually
or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect; and each other subsidiary of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, except for any failure to be so qualified or in
good standing that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect;
(viii) Upon consummation of the transactions contemplated in
the Exchange Agreement, the Company will have an authorized
capitalization as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company will have been duly and validly
authorized and issued, fully
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paid and non-assessable and conform to the description of the Stock
contained in the Prospectus; all of the membership interests of NB LLC
have been validly issued in accordance with applicable law and the
limited liability company agreement of such subsidiary, and upon
consummation of the transactions contemplated in the Exchange
Agreement, will be owned directly by the Company, free and clear of all
liens, encumbrances, equities or claims; all of the issued shares of
capital stock of each other subsidiary of the Company have been duly
and validly authorized and issued and are fully paid and
non-assessable, and upon consummation of the transactions contemplated
in the Exchange Agreement, will be owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
upon consummation of the transactions contemplated in the Exchange
Agreement, there will be no outstanding subscriptions, rights,
warrants, options, calls, commitments or liens related to or entitling
any person to purchase or otherwise to acquire any shares of the
capital stock of, or membership interest or other ownership interest
in, the Company or any of its subsidiaries;
(ix) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder and under the International Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein and therein, will
be duly and validly issued and fully paid and non-assessable and will
conform to the description of the Stock contained in the Prospectus;
(x) Each of the Company, NB LLC and NBMI has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the International Underwriting
Agreement and to consummate the transactions contemplated hereby and
thereby, including without limitation, in the case of the Company, the
corporate power and authority to issue, sell and deliver the Shares, as
provided herein and therein;
(xi) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by each of
the Company, NB LLC and NBMI;
(xii) The issue and sale of the Shares to be sold by the
Company hereunder and under the International Underwriting Agreement
and the compliance by each of the Company, NB LLC and NBMI with all of
the provisions of this Agreement, the International Underwriting
Agreement, the Exchange Agreement and the Stockholders Agreement, dated
as of August 19, 1998, among the Company and the Management
Stockholders named therein (the "Stockholders Agreement"), as
applicable, and the consummation of the transactions herein and therein
contemplated will not (a) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, NB LLC or NBMI or any of
their respective subsidiaries is a party or by which the Company, NB
LLC and NBMI or any of their respective subsidiaries is bound or to
which any of the property or assets of the Company, NB LLC or NBMI or
any of their respective subsidiaries is subject, (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) result in any violation of any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, NB LLC or NBMI or any of their
respective subsidiaries 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 and its subsidiaries to perform their respective
obligations under, or consummate the transactions contemplated by, this
Agreement, the International Underwriting Agreement, the Exchange
Agreement or the Stockholders Agreement, as applicable; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company, NB LLC
or NBMI of the transactions contemplated by this Agreement, the
International Underwriting Agreement, the Exchange Agreement or the
Stockholders Agreement except the registration under the Act of the
Shares and registration under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), of the Stock and such consents,
approvals,
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authorizations, registrations or qualifications as may be required
under foreign or state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters and the
International Underwriters;
(xiii) Each of the Company and its subsidiaries is in
compliance with all laws, regulations, permits, judgments, decrees,
ordinances and orders applicable to it or its businesses, including
without limitation Rule 15c3-1 under the Exchange 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;
(xiv) (A) Each of the Company and its subsidiaries has all
certificates, consents, exemptions, orders, permits, licenses,
authorizations or other approvals (each, an "Authorization") of and
from, and has made all declarations and filings with, all Federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, necessary or required
to engage in the business currently conducted by it in the manner
described in the Prospectus, except for any failures to have any such
Authorizations or have made any such declarations or filings that,
individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect; (B) all Authorizations required
pursuant to clause (A) of this paragraph are valid and in full force
and effect, except for any failures to be so valid and in full force
and effect that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect; and (C) each of the
Company and its subsidiaries is in compliance with the terms and
conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto except for any failures 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 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; and neither
the Company nor any of its subsidiaries is prohibited from carrying on
its business as described in the Prospectus by any applicable laws,
rules, regulations, orders, or similar requirements except for any such
prohibitions that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect;
(xvi) 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 such agreement which breach, violation, default or invalidity,
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect;
(xvii) 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
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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;
(xviii) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or other
organizational documents, as applicable, or, except for such defaults
that, individually or in the aggregate, would not reasonably expected
to have a Material Adverse Effect, in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(xix) Consummation of the transactions contemplated by this
Agreement, the International Underwriting Agreement, the Exchange
Agreement or the Stockholders Agreement will not constitute an
"assignment", as defined in the Advisers Act (and the rules and
regulations thereunder) or the Investment Company Act (and the rules
and regulations thereunder); nor will consummation of such transactions
adversely affect in any material respects the ability of the Company
and its subsidiaries to conduct its business in compliance with
applicable law as described in the Prospectus, including, but not
limited to, providing investment advisory services to clients and
mutual funds, whether or not such funds are registered under the
Investment Company Act;
(xx) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, under the caption
"United States Federal Tax Considerations for Non-U.S. Holders" in the
Prospectus relating to the International Shares, and under the captions
"Management","The Exchange and the Subordinated Note Transaction",
"Stockholders Agreement", and "Underwriting", insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are, in all material respects, accurate and complete summaries
or descriptions thereof;
(xxi) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect or adversely affect the issuance and sale of the Shares or
affect the validity of this Agreement, the International Underwriting
Agreement, the Exchange Agreement or the Stockholders Agreement; and,
to the best of the Company's knowledge, no such proceedings are
threatened by governmental authorities or others;
(xxii) Each of (A) the Exchange Agreement and (B) the
Stockholders Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and legally binding obligation of, the
Company (in the case of (A) and (B)) and each of NB LLC and NBMI (in
the case of (A)), enforceable against such party in accordance with its
terms, 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;
(xxiii) The combined historical financial statements, together
with the accompanying notes, set forth in the Prospectus fairly
present, in all material respects, the combined financial position of
the Company and its subsidiaries at the respective dates indicated and
the combined results of their operations and their combined cash flows
for the respective periods indicated, in accordance with United States
generally accepted accounting principles consistently applied
throughout such periods; the pro forma financial statements contained
in the Prospectus have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified
therein, and fairly present, in all material respects, the historical
and proposed transactions described in the Prospectus or contemplated
by this Agreement, the International Underwriting Agreement, the
Exchange Agreement and the Stockholders Agreement, on the basis of
assumptions that, in the opinion of the Company, were reasonable at the
time such pro forma financial statements were prepared; and all other
historical and pro forma financial information and other data included
in the
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Prospectus are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of the Company and its subsidiaries;
(xxiv) Each of the Company and its subsidiaries owns or
possesses or has the right to use the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, the "Intellectual Property") presently employed by it in
connection with, and material to, individually or in the aggregate, the
operation of the businesses now operated by it, and none of the Company
or any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to the
foregoing; and, to the best of the Company's knowledge, the use of such
Intellectual Property in connection with the business and operations of
the Company and each of its subsidiaries does not infringe on the
rights of any person except for any infringements that, individually or
in the aggregate, would not reasonably be expected to have a Material
Adverse Effect;
(xxv) All material tax returns required to be filed by the
Company or any of its subsidiaries in any jurisdiction have been timely
and duly filed, other than those filings being contested in good faith;
there are no tax returns of the Company or any of its subsidiaries that
are currently being audited by state, local or federal taxing
authorities or agencies (and with respect to which the Company or any
of its subsidiaries has received notice); and all taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty
or interest, and other than those that are not material;
(xxvi) Each of the Company and its subsidiaries maintains
insurance covering its properties, operations, personnel and businesses
which insures against such losses and risks as are adequate in
accordance with its reasonable business judgment to protect the Company
and each of its subsidiaries and their businesses; and all such
insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force at each Time of Delivery (as defined
in Section 4 hereof);
(xxvii) There are no holders of securities of the Company or
any of its subsidiaries who, by reason of the execution of this
Agreement, the International Underwriting Agreement, the Exchange
Agreement or the Stockholders 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;
(xxviii) 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;
(xxix) The Company does not anticipate incurring operating
expenses or costs (except as set forth in the Prospectus) material to
the Company's financial condition or results of operations in
connection with the actions the Company currently believes are
necessary to ensure that all management information systems of the
Company and its subsidiaries will be year 2000 compliant, or by reason
of the failure of the clients, customers or suppliers of the Company or
any of its subsidiaries to be year 2000 compliant;
(xxx) No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Company or any of its subsidiaries, is imminent;
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(xxxi) Neither the Company nor any of its subsidiaries 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;
(xxxii) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes; and
(xxxiii) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(b) Each of the Selling Stockholders, severally and not jointly,
represents and warrants to, and agrees with, each of the Underwriters and the
Company and, with respect to clause (b)(v), agrees with each of the
Underwriters, that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of
this Agreement, the International Underwriting Agreement, the Exchange
Agreement, the Stockholders Agreement and the Power of Attorney and for
the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement, have been obtained, except for the registration under the
Act of the Shares, the registration under the Exchange Act of the
Stock, the filing and/or notices under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, 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, the International Underwriting Agreement, the Exchange
Agreement, the Stockholder Agreement and the Power of Attorney and upon
the consummation of the transactions contemplated in the Exchange
Agreement, will have full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder and under the International Underwriting Agreement;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement and the compliance by such Selling Stockholder with all of
the provisions of this Agreement, the International Underwriting
Agreement, the Exchange Agreement, the Stockholder 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, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws 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;
(iii) Immediately prior to each Time of Delivery, such Selling
Stockholder will have good and valid title to the Shares to be sold by
such Selling Stockholder hereunder and under the International
Underwriting Agreement, free and clear of all liens, encumbrances,
equities or claims; upon payment therefor and the delivery to The
Depository Trust Company ("DTC") or its agent of such Shares,
registered in the name of Cede & Co. or such other nominee designated
by DTC, both as provided for herein and in the International
Underwriting Agreement, and the crediting of such Shares to the
Underwriter's accounts with DTC, Cede & Co. or such other nominee
designated by DTC will be a "protected purchaser" of such Shares (as
defined in Section 8-303 of the Uniform Commercial Code as adopted in
the State of New York (the "UCC")), the Underwriters will acquire a
valid "security entitlement" (within the meaning of Section 8-501 of
the UCC) to such Shares, and no action based on an "adverse claim" (as
defined in Section 8-102 of the UCC) may be asserted against the
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Underwriters with respect to such security entitlement (assuming that
the Underwriters are without notice of any such adverse claim);
(iv) This Agreement and the International Agreement have been
duly executed and delivered by or on behalf of such Selling
Stockholder;
(v) Each of the Exchange Agreement and the Stockholders
Agreement has been duly executed and delivered by or on behalf of, and
constitute valid and binding obligation of, such Selling Stockholder,
enforceable in accordance with its terms, 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;
(vi) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, such Selling Stockholder will not, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder or under the International Underwriting Agreement,
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;
(vii) 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;
(viii) 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;
(ix) 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 First Time of Delivery (as hereinafter defined) 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);
(x) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement will, upon consummation of the
transactions contemplated by the Exchange Agreement, be placed in
custody pursuant to the Exchange Agreement, with the Company as
custodian (the "Custodian"), and such Selling Stockholder has duly
executed and delivered a Power of Attorney pursuant to the Exchange
Agreement (the "Power of Attorney"), appointing the Company as such
Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with
authority to, among others, execute and deliver this Agreement and the
International Underwriting Agreement on behalf of such Selling
Stockholder, to determine the purchase price to be paid by the
Underwriters and the International 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
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connection with the transactions contemplated by this Agreement, the
International Underwriting Agreement, the Exchange Agreement and the
Stockholders Agreement; and
(xi) The Shares represented by the certificates to be held in
custody for such Selling Stockholder under the Exchange Agreement will
be subject to the interests of the Underwriters hereunder and the
International Underwriters under the International Underwriting
Agreement; the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the
Attorneys-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, the International Underwriting Agreement, the Exchange
Agreement and the Stockholders Agreement; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid
as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and 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 the Company and each of the Selling
Stockholders, at a purchase price per share of $-, the number of Firm Shares (to
be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Company and
each of the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all of the Underwriters
from the Company and all of the Selling Stockholders hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company and 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 the Company and each of the Selling Stockholders, at the purchase
price per share set forth in clause (a) of this Section 2, that portion of the
number of Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of which
is the maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the maximum number of Optional Shares that all
of the Underwriters are entitled to purchase hereunder.
The Company and the Selling Stockholders, as and to the extent
indicated in Schedule II hereto, hereby grant, severally and not jointly, to the
Underwriters the right to purchase at their election up to Optional Shares, at
the purchase price per share set forth in the paragraph above, for the sole
purpose of covering overallotments in the sale of the Firm Shares. Any such
election to purchase Optional Shares shall be made -. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Company and the Attorneys-in-Fact, given within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares are
to be delivered, as determined by you but in no event earlier than the First
Time of Delivery or, unless you and the Company and the Attorneys-in-Fact
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
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3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders shall be delivered by or on
behalf of the Company and the Selling Stockholders to Xxxxxxx, Sachs & Co.,
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
Company and the Custodian, as their interests may appear, to Xxxxxxx, Xxxxx &
Co. at least forty-eight hours in advance. The Company 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, with respect to the Firm Shares, 9:30 a.m., New York City time, on -, 1998
or such other time and date as Xxxxxxx, Sachs & Co., the Company and the Selling
Stockholders may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by Xxxxxxx, Xxxxx &
Co. in the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
Xxxxxxx, Xxxxx & Co., the Company and the Selling Stockholders may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(o) hereof, will be delivered at the offices
of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
each Time of Delivery. A meeting will be held at the Closing Location at 3:00
p.m., New York City time, on the New York Business Day next preceding each Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4 (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. Each of the Company, NB LLC and NBMI agrees with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you copies thereof; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
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(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 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 time of issue of the Prospectus 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 in order to comply with the Act to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
reasonably request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to, directly or indirectly, offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder and under
the International Underwriting Agreement, 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
pursuant to the 1998 Xxxxxxxxx Xxxxxx Directors Stock Incentive Plan,
the 1998 Xxxxxxxxx Xxxxxx Long-Term Incentive Plan and the Xxxxxxxxx
Xxxxxx Employee Deferred Contribution Stock Incentive Plan as in effect
on the date of this Agreement), without your prior written consent;
(f) To furnish to its stockholders (i) 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) 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 five years from the effective date of
the Registration Statement, to furnish 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
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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 use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(j) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 under the Act; and
(k) 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
the Company 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 of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the International Underwriting
Agreement, the Agreement between Syndicates, the Selling Agreements, the Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
5(b) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the Exchange; (v) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; (viii) any
expenses and taxes incident to the sale and delivery of the Shares to be sold by
the Selling Stockholders to the Underwriters and (ix) all other costs and
expenses incident to the performance of the Company's and each Selling
Stockholder's obligations hereunder (other than fees and expenses of counsel for
such Selling Stockholder which is not counsel to the Selling Stockholders) which
are not otherwise specifically provided for in this Section. In connection with
(viii) of the preceding sentence, Xxxxxxx, Xxxxx & Co. agrees to pay any
required New York State stock transfer tax, and such Selling Stockholders agree
to reimburse Xxxxxxx, Sachs & Co. for associated carrying costs if such tax
payment is not rebated on the day of payment and for any portion of such tax
payment not rebated. It is understood, however, that the Company shall bear, and
the Selling Stockholders shall not be required to pay or to reimburse the
Company for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and that, except as provided
in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and
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other statements of the Company and of the Selling Stockholders herein are, at
and as of such 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 shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions (a draft of each
such opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, with respect to the incorporation of the Company, the
validity of the Shares being delivered at such Time of Delivery, the
Registration Statement and the Prospectus, as well as such other
related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Debevoise & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(b)(1) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable;
and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so
as to require such qualification, except for any failures to
be so qualified or in good standing that, individually or in
the aggregate, would not reasonably be expected to have a
Material Adverse Effect (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such
counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
(iv) 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;
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 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 each of NB LLC and NBMI has been duly qualified
as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business
so as to require such qualification, except for failures to be
so qualified or in good standing that,
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individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company 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 the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject that,
individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect, would adversely affect the
issuance and sale of the Shares or would affect the validity
of this Agreement, the International Underwriting Agreement,
the Exchange Agreement or the Stockholders Agreement; and, to
the best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or others;
(vi) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by each of the Company, NB LLC and NBMI; and each of
the Company, NB LLC and NBMI has all requisite corporate power
and authority to perform its obligations under this Agreement
and the International Underwriting Agreement and to consummate
the transactions contemplated hereby and thereby, including
without limitation, in the case of the Company, the corporate
power and authority to issue, sell and deliver the Shares as
provided herein and therein;
(vii) Each of (A) the Exchange Agreement and (B) the
Stockholders Agreement has been duly authorized, executed and
delivered by, and constitute valid and binding obligation of,
the Company (in the case of (A) and (B)) and each of NB LLC
and NBMI (in the case of (A)), enforceable against such party
in accordance with its terms, 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;
(viii) The issue and sale of the Shares being
delivered at such Time of Delivery to be sold by the Company
and the compliance by each of the Company, NB LLC and NBMI
with all of the provisions of this Agreement, the
International Underwriting Agreement, the Exchange Agreement
and the Stockholders Agreement, as applicable, and the
consummation of the transactions herein and therein
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, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company, NB LLC or NBMI or any of
their respective subsidiaries is a party or by which the
Company, NB LLC or NBMI or any of their respective
subsidiaries is bound or to which any of the property or
assets of the Company, NB LLC or NBMI or any of their
respective subsidiaries is subject, (b) result in any
violation of the provisions of the Certificate of
Incorporation or By-laws or other organizational documents of
the Company or NB LLC or NBMI, or (c) result in any violation
of any statute or any order, rule or regulation (other than
State 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 court or governmental
agency or body having jurisdiction over the Company, NB LLC or
NBMI or any of their respective subsidiaries 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 and its subsidiaries to perform their
respective obligations under, or consummate the transactions
contemplated by, this Agreement, the International
Underwriting Agreement, the Exchange Agreement or the
Stockholders Agreement, as applicable;
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(ix) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company or any of its
subsidiaries of the transactions contemplated by this
Agreement, the International Underwriting Agreement, the
Exchange Agreement or the Stockholders Agreement, except the
registration under the Act of the Shares and the registration
under the Exchange Act of the Stock, 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 and the International Underwriters;
(x) The statements set forth in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock,
under the caption "United States Federal Tax Considerations
for Non-U.S. Holders" in the Prospectus relating to the
International Shares, and under the captions "Management",
"The Exchange and the Subordinated Note Transaction",
"Stockholders Agreement", and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are, in all material respects accurate
and complete summaries or descriptions thereof;
(xi) Consummation of the transactions contemplated by
this Agreement, the International Underwriting Agreement, the
Exchange Agreement or the Stockholders Agreement will not
constitute an "assignment", within the meaning of such term
under the Advisers Act (and the rules and regulations
thereunder) or the Investment Company Act
(and the rules and regulations thereunder);
(xii) 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;
(xiii) 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 the Company's
subsidiaries that is required to be registered as an
investment adviser under the Advisers Act is so registered
(and such registration is in full force and effect), except
for failures to be so registered that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect. Each of the Company's subsidiaries that is
required to be registered as a broker-dealer under the
Exchange Act is so registered (and such registration is in
full force and effect), except for failures to be so
registered that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect. Each
of the Company's subsidiaries that is required to be
registered as a commodity trading advisor and/or commodity
pool operator under the Commodity Exchange Act (the "CEA") is
so registered (and such registration is in full force and
effect), except for failures to be so registered that,
individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect. Each of the
Company's subsidiaries that is required to be registered as a
futures commission merchant under the CEA is so registered
(and such registration is in full force and effect), except
for failures to be so registered that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect. Each of the Company's subsidiaries has been
duly registered, licensed or qualified as an investment
adviser or a broker-dealer or as a commodity trading advisor,
commodity pool operator or a futures commission merchant or
any or all of the foregoing, as applicable, in all
jurisdictions in which the conduct of its business requires
such registration, licensing or qualification, except for
failures to be so registered, licensed or qualified that,
individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect;
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(xiv) Neither the Company nor any of its subsidiaries
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; and
(xv) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements, related notes and schedules and other
financial data therein, 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.
In addition, such counsel shall state that it has participated
in conferences with directors, officers and other representatives of
the Company, various of the Selling Stockholders, 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 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, except to the extent specified in subsection (x) of this
Section 7(c)(1), 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, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements, related notes and schedules and other financial
data, 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 such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements, related notes and schedules and
other financial data, 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; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the State of
New York, Delaware corporate and the federal laws of the United States.
(d) C. Xxxx Xxxxxxxx, Senior Vice President and General
Counsel of the Company, shall have furnished to you his written opinion
(a draft of such opinion is attached as Annex (II)(b)(2) hereto), dated
such Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) Each of (A) Xxxxxxxxx & Xxxxxx Trust Company, (B)
Xxxxxxxxx & Xxxxxx Trust Company of Delaware and (C) Xxxxxxxxx
& Xxxxxx Agency, Inc. (which, together with NB LLC and NBMI,
constitute all the subsidiaries of the Company) has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
all of the issued shares of capital stock of each such
subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable, and are owned indirectly by
the Company through NB LLC, free and clear of all liens,
encumbrances, equities or claims; and each such subsidiary has
been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws
of each other
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jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, except for
any failures to be so qualified or in good standing that,
individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company 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);
(ii) To the best of such counsel's knowledge, there
are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, membership
interests or other ownership interest in, the Company or any
of its subsidiaries; and all of the membership interests of NB
LLC and the issued shares of capital stock of NBMI are owned
by the Company free and clear of all liens, encumbrances,
equities or claims; and
(iii) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation or By-laws
or other organizational documents or, except for such defaults
that would not have a Material Adverse Effect, in default in
the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the State of
New York, Delaware corporate and the federal laws of the United States.
(e) - , counsel for of the Company, shall have furnished to
you its written opinion (drafts of such opinion are attached as Annex
II(b)(3) hereto) dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Each Fund which is required to be registered with
the Commission as an investment company under the Investment
Company Act is duly registered with the Commission as an
investment company under the Investment Company Act, except
for failures to be so registered that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the State of
New York, Delaware corporate and the federal laws of the United States.
(f) Debevoise & Xxxxxxxx, counsel for of the Selling
Stockholders, shall have furnished to you its written opinion (drafts
of such opinion are attached as Annex II(c) hereto) dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) A Power of Attorney, the Exchange Agreement and
the Stockholders Agreement have been duly executed and
delivered by each Selling Stockholder and constitute valid and
legally binding agreements of such Selling Stockholder in
accordance with their terms, subject as to enforcement to
bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors'
rights generally and to general equity principles;
(ii) This Agreement and the International
Underwriting Agreement have been duly executed and delivered
by or on behalf of each Selling Stockholder; and the sale of
the Shares to be sold by such Selling Stockholder hereunder
and thereunder and the compliance
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by such Selling Stockholder with all of the provisions of this
Agreement, the International Underwriting Agreement, the
Exchange Agreement, the Stockholders 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 terms or provisions of, or
constitute a default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel to which such Selling 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 and that is material to such Selling
Stockholders, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws
or other organizational documents, as applicable, of such
Selling Stockholder or any rule or regulation (other than
State 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 court or governmental
agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement, the International Underwriting Agreement, the
Exchange Agreement or the Stockholders Agreement in connection
with the Shares to be sold by such Selling Stockholder
hereunder or thereunder, except [name any such consent,
approval, authorization or order] which [has] [have] been duly
obtained and [is] [are] in full force and effect, the
registration of the Shares under the Act, the registration of
the Stock under the Exchange Act and such as may be required
under foreign or state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares
by the Underwriters or the International Underwriters; and
(iv) Immediately prior to such Time of Delivery such
Selling Stockholder had good and valid title to the Shares to
be sold at such Time of Delivery by such Selling Stockholder
under this Agreement and the International Underwriting
Agreement, free and clear of all liens, encumbrances, equities
or claims; and upon payment therefor and the delivery to DTC
or its agent of such Shares, registered in the name of Cede &
Co. or such other nominee designated by DTC, both as provided
for herein and in the International Underwriting Agreement,
and the crediting of such Shares to the Underwriter's accounts
with DTC, Cede & Co. or such other nominee designated by DTC
will be a "protected purchaser" of such Shares (as defined in
Section 8-303 of the UCC), the Underwriters will acquire a
valid "security entitlement" (within the meaning of Section
8-501 of the UCC) to such Shares, and no action based on an
"adverse claim" (as defined in Section 8-102 of the UCC) may
be asserted against the Underwriters with respect to such
security entitlement (assuming that the Underwriters are
without notice of any such adverse claim).
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the State of
New York, Delaware corporate and the federal laws of the United States and in
rendering the opinion in subparagraph (iv) 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;
(g) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, 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 I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-
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effective amendment to the Registration Statement and as of each Time
of Delivery is attached as Annex I(b) hereto);
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any 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 (ii) since the respective dates as
of which information is given in the Prospectus there shall not have
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving
a prospective 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, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(j) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the
Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if
the effect of any such event specified in this Clause (iv) in the
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(k) The Shares to be sold by the Company and the Selling
Stockholders at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the Exchange;
(l) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each Management Stockholder that
is not a party to this Agreement substantially to the effect set forth
in Subsection 5(e) hereof in form and substance satisfactory to you;
(m) (A) The Company shall have delivered to the Underwriters
executed copies of the Exchange Agreement and the Stockholders
Agreement, and (B) the transactions contemplated under the Exchange
Agreement shall have been duly and validly consummated in accordance
with applicable law;
(n) 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
(o) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and of the Selling
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 such 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 such Time of Delivery, and as to such
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other matters as you may reasonably request, and the Company shall have
furnished or caused to be furnished certificates as to the matters set
forth in subsections (a), (h) and (m)(B) of this Section, and as to
such other matters as you may reasonably request.
8. (a) Each of the Company, NB LLC and NBMI, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
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, NB LLC and NBMI shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein.
(b) Each of the Selling Stockholders will indemnify and hold
harmless each Underwriter, in proportion to the maximum number of Shares sold by
such Selling Stockholder, including any Optional Shares, 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, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will 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, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through Xxxxxxx,
Xxxxx & Co. expressly for use therein; provided, further, that the liability of
a Selling Stockholder pursuant to this Section 8(b) shall not exceed the product
of the number of Shares sold by such Selling Stockholder, including any Optional
Shares, and the initial public offering price of the Shares as set forth in the
Prospectus.
(c) Each Underwriter will indemnify and hold harmless the
Company, NB LLC, NBMI and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company, NB LLC, NBMI 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, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein; and
will reimburse the Company, NB LLC, NBMI and each Selling Stockholder for any
legal or other expenses reasonably incurred by the Company, NB LLC, NBMI or such
Selling Stockholder in connection with investigating or defending any such
action or claim as such expenses are incurred.
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(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 satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, NB LLC, NBMI 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, NB LLC, NBMI and the Selling
Stockholders on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company, NB LLC,
NBMI and the Selling Stockholders on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Shares purchased under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, NB LLC, NBMI, 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 (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), 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
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omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company, NB LLC, NBMI and the Selling
Stockholders under this Section 8 shall be in addition to any liability which
the Company, NB LLC, NBMI 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 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, NB LLC, NBMI 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 Company and 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 Company and
the Selling Stockholders that you have so arranged for the purchase of such
Shares, or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling 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 such Time of
Delivery, then the Company and 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 such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling 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 such Time of Delivery,
or if the Company and 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
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company and the Selling Stockholders to sell
the Optional Shares) 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.
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10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, NB LLC, NBMI, 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, NB LLC, NBMI or any of the Selling
Stockholders, or any officer or director or controlling person of the Company,
NB LLC, NBMI, or any controlling person of any Selling Stockholder, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling 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
Company and the Selling Stockholders as provided herein, the Company and each of
the Selling Stockholders pro rata (based on the number of Shares to be sold by
the Company and such Selling Stockholder hereunder) will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling 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.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any Selling 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 any
or all of the Attorneys-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 representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxx Xxxx, 0xx 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, NB LLC or NBMI
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(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 or the Selling Stockholders by you upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, NB LLC, NBMI 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,
NB LLC, NBMI, 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.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company, NB
LLC, NBMI and each of the Selling Stockholders. It is understood that your
acceptance of this letter on
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behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement among Underwriters (U.S. Version), the form of which shall be
submitted to the Company and the Selling Stockholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
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:........................................................
Name:
Title:
Xxxxxxxxx & Xxxxxx, LLC
By:........................................................
Name:
Title:
Xxxxxxxxx & Xxxxxx Management Incorporated
By:........................................................
Name:
Title:
The Selling Stockholders listed in Schedule II hereto
By: Xxxxxxxxx Xxxxxx Inc.
By:........................................................
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.
[Names of Co-Representatives]
By:........................................................
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ------------------
Xxxxxxx, Sachs & Co....................................................
[Names of Co-Representatives]..........................................
[Names of other Underwriters]..........................................
--------------- ------------------
Total......................................................... =============== ==================
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SCHEDULE II
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
--------------- ------------------
The Company.........................................................
The Selling Stockholders(a):
Xxxxxxx X. Xxxxxxxx........................................
Xxxxxx X. Xxxxx............................................
Xxxxxx X. Xxxxxx...........................................
Xxxxxxx Xxxxxx.............................................
Xxxxxxx X. Xxxxxx..........................................
Xxxxxxx X. Xxxxxxx.........................................
Xxxxxxxxx X'Xxxx...........................................
Xxxxxxx Xxxxxx.............................................
Xxxxxxx X. Xxxxxxxx........................................
Xxxxxx Xxxxxxx.............................................
Xxxx X. Xxxxxxx............................................
Xxxxxxx X. Xxxxxxxxx.......................................
Xxxxxx X. Xxxxx............................................
Xxxxxx Xxxxxxxxx...........................................
Xxxxxxxx Xxxxxxxx..........................................
Xxxx X. Xxxxxxxxx..........................................
Xxx X. Xxxxxxx.............................................
Xxxx X. Xxxxxx.............................................
Xxxxxxx Xxxx...............................................
Xxxxxxx X. Xxxxx...........................................
Xxxxxxx X. Xxxxxx..........................................
Xxxx X. Xxxxxxx............................................
Xxx X. Xxxxxxxxxxxx........................................
Xxxxx Xxxxxxx..............................................
Xxxxxx Xxxxxx..............................................
Xxxxxxx Xxxxxx.............................................
Xxxxxxxxxxx X. Xxxxxxxx....................................
Xxxxxxxx Xxxx III..........................................
Xxxxxx X. XxXxxxxx.........................................
Xxxxxx XxXxxxxx............................................
Xxxxxx X. Xxxxxxxxx........................................
Xxxx X. Xxxxxx.............................................
Xxx X. Xxxxxxxxx...........................................
Xxxxxx X. Xxxxxx...........................................
Xxxxxx X. Xxxxxxx..........................................
Xxxxxx X. Xxxxxx...........................................
Xxxxxx X. Xxxxxxx..........................................
Xxxxxxx X. Xxxxxx..........................................
Xxxxx X. Xxxxxxx...........................................
C. Xxxx Xxxxxxxx...........................................
Xxxxx X. Risen.............................................
Xxxxxx X. Xxxxxxxxxx.......................................
J. Xxxx Xxxxxxxxxxxxx......................................
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Xxxxxx X. Xxxxxxxx.........................................
Xxxxxxxx Silver............................................
Xxxx X. Xxxxxx.............................................
R. Xxxxxx Xxxxxx...........................................
Xxxxxx Xxxxxx..............................................
Xxxxx X. Xxxxxxx...........................................
Xxxxxxx X. Xxxxx...........................................
Xxxx Xxxxx.................................................
Xxxxxxx X. Xxxxxx..........................................
Xxxxxxxxx Xxxxxxx..........................................
Xxxxxx X. Xxxxxx...........................................
Xxxxx Xxxxxxx..............................................
The Xxxxxxx 1998 Trust.....................................
Xxxxx Xxxxxxx..............................................
Xxxxx X. Xxxxxx............................................
Xxxxxx 1998 GST Trust......................................
Xxxxxxx X. Xxxxxxxx, Xx....................................
Xxxxxx X. Xxxx.............................................
Xxxxx Xxxxxx...............................................
Xxxxxxxx Xxxxxxxx..........................................
Xxxxxxxx Xxxxxxx........................................... --------------- ------------------
Total..................................... =============== ==================
(a) Each of the Selling Stockholders named above is
represented by Debevoise & Xxxxxxxx, counsel to the Selling Stockholders, and
has appointed the Company as the Attorney-in-Fact for such Selling Stockholder.
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ANNEX I
Pursuant to Section 7(g) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations thereunder adopted by the
Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related rules and
regulations adopted by the Commission; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited combined
interim financial statements, selected financial data, pro forma
financial information, financial forecasts, management's discussion and
analysis and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been furnished to the representatives of the Underwriters (the
"Representatives") and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed combined statements of income, combined
balance sheets and combined statements of cash flows, and management's
discussion and analysis included in the Prospectus as indicated in
their reports thereon copies of which are attached hereto; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed combined financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related rules and regulations adopted by the Commission,
nothing came to their attention that caused them to believe that the
unaudited condensed combined financial statements do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related rules and regulations adopted
by the Commission;
(iv) The unaudited selected financial information with respect
to the combined results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited combined financial statements for such
five fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302
and 402, respectively, of Regulation S-K;
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(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited combined statements of income,
combined balance sheets and combined statements of cash flows
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related rules and regulations adopted by
the Commission, or (ii) any material modifications should be
made to the unaudited condensed combined statements of income,
combined balance sheets and combined statements of cash flows
included in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited combined
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited combined
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited combined financial statements
included in the Prospectus;
(D) any unaudited pro forma combined condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the rules and
regulations adopted by the Commission thereunder or the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the combined capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the combined long-term debt of
the Company and its subsidiaries, or any decreases in combined
net current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
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(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (E) there were any
decreases in combined net revenues or operating profit or the
total or per share amounts of combined net income or other
items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in each case for decreases or
increases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus, or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
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