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Draft of April 18, 1998
Exhibit 1.1(c)
_______________ SHARES
XXXXX INC.
COMMON STOCK
[DRAFT]AGREEMENT BETWEEN U.S. UNDERWRITERS AND MANAGERS
May ___, 1998
AGREEMENT by and between (a) Credit Suisse First Boston Corporation
("CSFBC"), Xxxxx Xxxxxx Inc. and Xxxxxx Xxxxxxxx & Co. Limited, as
representatives (the "Representatives") of the several United States
underwriters (the "U.S. Underwriters") named in Schedule A to the Underwriting
Agreement, dated the date hereof (the "Underwriting Agreement"), among the U.S.
Underwriters, Xxxxx Inc., a Delaware corporation (the "Company") and the selling
securityholders party thereto, and (b) the international managers listed on the
signature page hereof (the "Managers"). The several U.S. Underwriters are herein
called a "Syndicate" and the several Managers are herein called a "Syndicate".
The U.S. Underwriters and the Managers are herein collectively called the
"Underwriters".
WHEREAS, the U.S. Underwriters, severally and not jointly, pursuant to
the Underwriting Agreement, have agreed to purchase from the Company and any
selling securityholders shares (the "U.S. Firm Securities") of the
Company's Common Stock ("Securities"); the Managers, severally and not jointly,
pursuant to the Subscription Agreement, dated the date hereof (the "Subscription
Agreement"), among the Managers, the Company and any selling securityholders,
have agreed to purchase from the Company and any such selling securityholders
shares (the "International Firm Securities") of the Securities; certain selling
securityholders have granted to the U.S. Underwriters and the Managers,
exercisable up to two times by CSFBC on behalf of the U.S. Underwriters and the
Managers, an over-allotment option (the "Over-allotment Option") to purchase up
to an aggregate of additional shares (the "Optional Securities") of Securities;
the U.S. Firm Securities and the International Firm Securities are herein
collectively called the "Firm Securities"; the Firm Securities and the Optional
Securities are herein collectively called the "Securities"; the U.S. Firm
Securities and the Optional Securities that may be sold to the U.S. Underwriters
are herein collectively called the "U.S. Securities"; the International Firm
Securities and the Optional Securities that may be sold to the Managers are
herein collectively called the "International Securities"; and the U.S.
Securities and the International Securities are herein collectively called the
"Offered Securities"; and
WHEREAS, the U.S. Underwriters and the Managers deem it necessary and
advisable that certain of the activities of the U.S. Underwriters and the
Managers be coordinated pursuant to this Agreement;
NOW, THEREFORE, the U.S. Underwriters, acting through the
Representatives, and the Managers hereby agree as follows:
1. Intersyndicate Purchases and Sales. The U.S. Underwriters, acting
through the Representatives, and the Managers, acting through Credit Suisse
First Boston (Europe) Limited ("CSFBL"), agree that they will consult with each
other as to the availability for sale to the public from time to time of Offered
Securities
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purchased from the Company and any selling securityholders pursuant to the
Underwriting Agreement and the Subscription Agreement until the earlier of (a)
completion of the distribution of the U.S. Securities being offered by the U.S.
Underwriters and (b) CSFBL's notifying the Managers of the termination of the
selling restrictions under the Agreement Among Managers, dated the date hereof
(the "Agreement Among Managers"). From time to time, at the direction of CSFBC,
the U.S. Underwriters (acting through the Representatives) and the Managers may
purchase and sell between Syndicates such number of Offered Securities as may be
directed by CSFBC.
Unless otherwise determined by agreement of the Representatives and
CSFBL, on behalf of the Managers, the price and currency settlement of any
Offered Securities so purchased or sold shall be the then effective public
offering price, in the currency or currencies contemplated for the purchase of
the Offered Securities from the Company in the Underwriting Agreement and the
Subscription Agreement (Deutsche marks and U.S. dollars), less (a) the selling
concession that would otherwise apply to such Offered Securities if such Offered
Securities were not purchased and sold under this Section 1 or (b) such lesser
amount as the Representatives and CSFBL, on behalf of the Managers, may mutually
agree. Settlement with respect to any Offered Securities transferred hereunder
prior to the First Closing Date (as defined in the Underwriting Agreement) shall
be made on the First Closing Date if feasible but in no event later than three
business days after the transfer date, and, in the case of purchases and sales
made after the First Closing Date, as promptly as practicable but in no event
later than three business days after the transfer date. Certificates
representing the Offered Securities so purchased shall be delivered on the
respective settlement dates. For purposes of Rule 15c6-1 under the United States
Securities Exchange Act of 1934, the settlement dates set forth herein or
established pursuant to the provisions hereof shall prevail if later than the
applicable settlement dates prescribed by or pursuant to such Rule. The
liability for payment to the Company and any selling securityholders of the
purchase price of the Offered Securities being purchased under the Underwriting
Agreement and the liability for payment to the Company of the purchase price of
the Offered Securities being purchased under the Subscription Agreement shall
not be affected by the provisions of this Agreement.
The proportionate share of any U.S. Underwriter or Manager in respect
of the obligation of U.S. Underwriters or Managers to purchase or sell Offered
Securities under this Section 1 shall, unless such U.S. Underwriter or Manager
otherwise agrees with CSFBC or CSFBL, as the case may be, be no greater than the
proportion of (a) the total number of shares of U.S. Firm Securities or
International Firm Securities (plus such additional Offered Securities as may be
required by the Underwriting Agreement or the Subscription Agreement to be
purchased by such U.S. Underwriter or Manager in the event of a default by one
or more of the U.S. Underwriters or Managers) that such U.S. Underwriter or
Manager is obligated to purchase under the Underwriting Agreement or the
Subscription Agreement, respectively (hereinafter referred to as such U.S.
Underwriter's or Manager's "underwriting commitment"), to (b) the total number
of shares of U.S. Firm Securities or International Firm Securities, as the case
may be.
2. Selling Restrictions. Each U.S. Underwriter agrees that, except for
(a) purchases and sales among Underwriters pursuant to this Agreement and (b)
stabilization transactions contemplated under Section 3 hereof, it has not
offered or sold, and will not offer or sell, directly or indirectly, Offered
Securities or distribute any prospectus relating to the Offered Securities to
any person outside the United States or Canada or to any other dealer who does
not so agree.
Each Manager agrees that, except for (a) purchases and sales among
Underwriters pursuant to this Agreement and (b) stabilization transactions
contemplated under Section 3 hereof, it has not offered or sold, and will not
offer or sell, directly or indirectly, Offered Securities or distribute any
prospectus relating to the Offered Securities in the United States or Canada or
to any other dealer who does not so agree.
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For purposes hereof, an offer or sale shall be in the United States or
Canada under the same circumstances described as such in the Agreement Among
Managers, and "United States" and "Canada" shall have the meanings set forth in
the Agreement Among Managers.
Each Manager agrees for the benefit of the several U.S. Underwriters to
comply with the provisions of Section 3 of the Agreement Among Managers. Each
Manager has caused each dealer who has agreed to participate or is participating
in the distribution to give an undertaking similar to Section 3 of the Agreement
Among Managers.
Each U.S. Underwriter agrees for the benefit of the several Managers to
comply with the CSFBC Master Agreement Among Underwriters as in effect
(including any modification to the terms thereof by telex or other amendment)
with respect to the Offered Securities (the "Agreement Among U.S.
Underwriters").
3. Stabilizing. The overall direction and planning of over-allotments
and the stabilization transactions contemplated herein shall be the
responsibility of CSFBC. All stabilization transactions, whether in the United
States or otherwise, shall be conducted at the direction of and subject to the
control of CSFBC, so that stabilization activities worldwide shall be conducted
in compliance with any applicable laws and regulations.
The International Primary Market Association ("IPMA") limits will not
be complied with in connection with stabilization losses and expenses. All
over-allotments, stabilization purchases, purchases to cover syndicate short
positions, exercises of the Over-allotment Option and related expenses shall be
for the accounts of the several Underwriters in proportion to their respective
underwriting commitments. In no event shall the net commitment of any
Underwriter, for either long or short account, resulting from the transactions
described in the previous sentence exceed 20% of its underwriting commitment.
For the purposes of the foregoing, an Underwriter's net commitment for short
account will be computed assuming that all Optional Securities which may be
purchased for such Underwriter's account pursuant to exercise of the
Over-allotment Option are so acquired, whether or not the Over-allotment Option
is exercised, and are allocated on a pro rata basis between the Syndicates as
contemplated in Section 4 hereof.
If an Underwriter is, or is affiliated with, any U.S. or non-U.S. bank,
such Underwriter hereby represents that its participation in the offering of the
Offered Securities on the terms contemplated herein and in the Subscription
Agreement, Agreement Among Managers, Underwriting Agreement and the Agreement
Among U.S. Underwriters, as applicable, does not contravene any U.S. or state
banking law restricting the exercise of securities powers in the United States.
4. Over-Allotment Option. As set forth in the Underwriting Agreement
and the Subscription Agreement, the Over-allotment Option shall be exercised at
the direction of CSFBC on behalf of the respective Syndicates. The obligation of
each Syndicate to purchase Optional Securities upon each of the up to two
exercises of the Over-allotment Option shall be in proportion to the aggregate
underwriting commitment of the Underwriters comprising such Syndicate. The
obligations of the Underwriters comprising a Syndicate to purchase Optional
Securities upon exercise of the Over- allotment Option shall be in such
proportions as are specified in or determined pursuant to the Underwriting
Agreement or the Subscription Agreement, as the case may be, and shall be
several and not joint obligations of such Underwriters.
5. Expenses. To the extent not reimbursed by the Company, the payment
of (a) legal fees and disbursements of United States and foreign counsel to the
U.S. Underwriters and Managers incurred in connection with the underwriting, (b)
advertising fees and (c) other expenses as agreed between the Representatives
and the Managers, will be made on a pro rata basis by the Syndicates in
accordance with their respective underwriting commitments, or on such other
basis as may be agreed between the Representatives and the Managers. Expenses in
connection with stabilization and over-allotment shall be allocated as
contemplated in Section 3 hereof. Subject to the previous two sentences, the
U.S. Underwriters will pay the
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aggregate expenses incurred in connection with the purchase, carrying or sale of
the Offered Securities purchased by the U.S. Underwriters from the Company and
any selling securityholders, and the Managers will pay the aggregate expenses
incurred in connection with the purchase, carrying or sale of the Offered
Securities purchased by the Managers from the Company and any selling
securityholders.
6. Public Offering. Changes in the respective public offering price per
Offered Security or in the respective concessions and reallowances to dealers
per Offered Security will be made only upon the mutual agreement of the
Representatives and CSFBL, on behalf of the Managers, during the period referred
to in the first sentence of Section 1 hereof. Any such change shall be made
concurrently in the offering by the U.S. Underwriters and the offering by the
Managers.
[Each Underwriter agrees to pay [CSFBC] [and] [CSFBL] an amount equal
to U.S.$ per Security comprising the underwriting commitment of such Underwriter
as compensation for the services of [CSFBC] [and] [CSFBL] as global
coordinator[s] of the offering of the Offered Securities, and authorizes the
Representatives and CSFBL, as the case may be, to charge its account therefor.]
7. Mutual Information. The Underwriters will provide such information
as CSFBC and CSFBL may request in order to allow CSFBC and CSFBL to satisfy
their obligations hereunder and in order to allow CSFBC and CSFBL to keep the
Underwriters informed of the progress of the offering of the Offered Securities.
Unless otherwise approved by CSFBC, each Underwriter agrees not to make, in the
United States or Canada or elsewhere, any press or public announcement or public
comment which it believes or ought reasonably to believe is likely to be
published in the press or elsewhere concerning (a) the Company or any of its
subsidiaries or (b) the offering of the Offered Securities, in either case on or
after the date hereof and prior to the later of (i) termination pursuant to
Section 10 of the Underwriters' obligations set forth in Section 2 or (ii) the
Closing Date (as defined in Section 8), provided that the foregoing shall not
restrict any Underwriter from making such public announcement or comment as
shall be required for the purpose of the conduct of the offering of the Offered
Securities, subject to such public announcement or comment being permitted by
applicable law to be made in the manner in which it is made and to its being in
the terms approved in writing by CSFBC.
8. Closing Date; Termination of Underwriting or Subscription Agreement.
If any closing date is not on the day provided in the Underwriting Agreement and
in the Subscription Agreement (the "Closing Date") the Representatives and
CSFBL, on behalf of the Managers, will mutually agree on a postponed date within
the time permitted by such agreements and the settlement dates herein provided
shall be adjusted accordingly.
The Representatives shall not terminate the Underwriting Agreement
pursuant to the conditions set forth in Section 6 thereof except after
consultation with CSFBL, on behalf of the Managers, and CSFBL shall not
terminate the Subscription Agreement pursuant to the conditions set forth in
Section 6 thereof except after consultation with the Representatives.
9. Counterparts. This Agreement may be signed in various counterparts,
which together shall constitute one and the same instrument.
10. Termination of Syndicate Restrictions. The obligations of the
Underwriters set forth in Section 2 shall terminate upon the earlier of (a) the
mutual agreement of the Representatives and CSFBL, on behalf of the Managers, or
(b) 45 days after the date hereof, unless the Representatives or CSFBL, on
behalf of the Managers, shall have given notice to the other parties hereto that
the sale of Offered Securities by the U.S. Underwriters or the Managers, as the
case may be, has not yet been completed. The Representatives and CSFBL, on
behalf of the Managers, may agree pursuant to clause (a) to terminate the
obligations of the Underwriters set forth in Section 2 other than the last
paragraph of Section 4(a) of the Agreement Among U.S. Underwriters and Section
7(c) of the Agreement Among Managers, which shall survive until separately
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terminated pursuant to clause (a) or (b). If the notice referred to in clause
(b) is given, the obligations set forth in Section 2 shall survive until the
expiration of an additional 15 days from the date of such notice.
11. Position of Representatives and CSFBL. Neither the Representatives
nor CSFBL will be under any liability to any Underwriter for any act or omission
except for obligations expressly assumed by the Representatives or CSFBL,
respectively herein, and no obligations on part of the Representatives and CSFBL
will be implied hereby or inferred herefrom. The rights and liabilities of the
Underwriters are several and not joint and nothing herein contained shall
constitute or be deemed to constitute the Underwriters as partners with each
other or render any Underwriters liable for the obligations of any other
Underwriter. No Underwriter shall be bound in any way by the acts of any other
Underwriter in respect of the issue of the Securities except as expressly
provided. The duties of the Representatives and CSFBL shall be administrative
and not fiduciary in nature.
12. APPLICABLE LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The parties hereby submit to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written by the undersigned for themselves and for the
Underwriters as set forth herein.
The U.S. Underwriters
CREDIT SUISSE FIRST BOSTON (EUROPE) CORPORATION
By:_______________________________________________
[Insert title]
For itself and as Representative of the several
U.S. Underwriters
The Managers:
CREDIT SUISSE FIRST BOSTON LIMITED
XXXXX XXXXXX INC.
XXXXXX XXXXXXXX & CO. LIMITED
[INSERT NAMES OF OTHER MANAGERS]
By: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By:_______________________________________________
[Insert Name]
For itself and on behalf of the Managers
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