Exhibit 1.1
5,000,000 SHARES
XXXXXXXXX XXXXX, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
----------------------
October 16, 2003
CREDIT SUISSE FIRST BOSTON LLC
XXXXXX XXXXXXX & CO. INCORPORATED
X.X. XXXXXX SECURITIES INC.
SUNTRUST CAPITAL MARKETS, INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston LLC
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Xxxxxxxxx Xxxxx, Inc., a Florida corporation
("COMPANY") proposes to issue and sell 3,666,667 shares of its common stock, par
value $0.01 per share ("SECURITIES") and Conopco, Inc., a New York corporation
("SELLING STOCKHOLDER") proposes to sell 1,333,333 outstanding shares of the
Securities (such 5,000,000 shares of Securities being hereinafter referred to as
the "FIRM SECURITIES"). The Selling Stockholder also proposes to sell to the
Underwriters, at the option of the Underwriters, not more than 750,000
additional outstanding shares of the Company's Securities, as set forth below
(such 750,000 additional shares being hereinafter referred to as the "OPTIONAL
SECURITIES"). The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES." The Company and the Selling
Stockholder hereby agree with the several Underwriters named in Schedule A
hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholder. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-106038), including a
prospectus, relating to the Offered Securities has been filed with
the Securities and Exchange Commission ("COMMISSION") and has become
effective. Such registration statement, as amended on the date
hereof, is hereinafter referred to as the "REGISTRATION STATEMENT,"
and the prospectus included in such Registration Statement, as
supplemented to reflect the terms of the offering of the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(B)") under the Securities Act
of 1933 ("ACT"), including all material incorporated by reference
therein, is hereinafter referred to as the "PROSPECTUS." No document
has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(ii) On the effective date of the Registration Statement, the
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder ("RULES AND Regulations") and did not include
any untrue statement of a material fact or omit to state any material
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fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of this Agreement,
the Registration Statement conforms in all material respects to the
requirements of the Act and the Rules and Regulations, and does not
include 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, and the Prospectus conforms in all
material respects to the requirements of the Act and the Rules and
Regulations, and does not include 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, in light of the
circumstances under which they were made, not misleading, except that
the foregoing does not apply to statements in or omissions from any
of such documents based upon written information furnished to the
Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Florida,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole ("MATERIAL ADVERSE
EFFECT"). The Company only maintains an office or leases property in
the United States in New York, Virginia, Connecticut, Florida and
California.
(iv) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus; and each subsidiary of the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary of the
Company is owned by the Company, directly or through one or more
subsidiaries, free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other
like payment in connection with this offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file
a registration statement under the Act with respect to any securities
of the Company owned or to be owned by such person or to require the
Company to include such securities in the Securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act that have not been validly waived or satisfied
prior to the date hereof.
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(viii) The Securities have been approved for listing subject to
notice of issuance on The Nasdaq Stock Market's National Market.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the
sale of the Offered Securities, except such as have been obtained and
made under the Act and such as may be required under state securities
laws.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions
of, or constitute a default under, (i) any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, (ii) any
agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary
is subject, or (iii) the charter or by-laws of the Company or any
such subsidiary, except, in the case of clauses (i) and (ii), for
such breaches, violations or defaults that, individually or in the
aggregate, would not have a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the
Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or to be made thereof by
them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorizations or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit that, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that might have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xvi) Neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
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(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and, to the knowledge of
the Company, there is no pending investigation which might lead to
such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement, or
which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(xviii) The financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly in all material respects the financial position, results of
operations and cash flows of the Company and its consolidated
subsidiaries on the basis stated therein at the respective dates or
for the respective periods to which they apply, and such financial
statements have been prepared in accordance with generally accepted
accounting principles in the United States applied on a consistent
basis. All non-GAAP financial information included or incorporated by
reference in the Registration Statement complies with the
requirements of Regulation G and Item 10 of Regulation S-K under the
Act to the extent that such rules are applicable to such financial
statements.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Prospectus, there has
been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(xx) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), and files reports with the
Commission on the Electronic Data Gathering, Analysis, and Retrieval
(XXXXX) system.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds therefrom as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of
1940, as amended.
(xxii) Neither the Company nor any of its subsidiaries has
violated any provisions of the Employee Retirement Security Act of
1974, as amended ("ERISA"), or any provisions of the Foreign Corrupt
Practices Act or the rules and regulations promulgated thereunder,
except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(xxiii) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company nor any
of its subsidiaries (i) has received notice from any insurer or agent
of such insurer that substantial capital improvements or other
material expenditures will have to be made in order to continue such
insurance or (ii) has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage
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expires or to obtain similar coverage from similar insurers at a cost
that would not have a Material Adverse Effect.
(xxiv) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance
with management's general or specific authorizations; (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. generally accepted
accounting principles and to maintain asset accountability; (C)
access to assets is permitted only in accordance with management's
general and specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at
periodic intervals and appropriate action is taken with respect to
any differences. The Company and each of its subsidiaries maintain
disclosure controls and procedures (as such term is defined in Rule
13a-15 under the Exchange Act) that are designed to ensure that
information required to be disclosed by the Company and its
subsidiaries in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within
the time periods specified in the rules and forms of the Commission,
including, without limitation, controls and procedures designed to
ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is
accumulated and communicated to the Company's management, including
its principal executive officer or officers and its principal
financial officer or officers, as appropriate to allow timely
decisions regarding required disclosure.
(xxv) Each of the principal executive officer and the principal
financial officer of the Company (or each former principal executive
officer of the Company and each former principal financial officer of
the Company, as applicable) has made all certifications required by
Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules
and regulations of the Commission promulgated thereunder (the
"XXXXXXXX-XXXXX ACT") with respect to all reports, schedules, forms,
statements and other documents required to be filed by it or
furnished by it to the Commission to which the Xxxxxxxx-Xxxxx Act
applies. For purposes of the preceding sentence, "principal executive
officer" and "principal financial officer" shall have the meanings
given to such terms in the Xxxxxxxx-Xxxxx Act.
(xxvi) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than any filings not yet due or being contested in good
faith, except where the failure to do so would not, individually or
in the aggregate, have a Material Adverse Effect, and all material
taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those not yet payable or
being contested in good faith and for which adequate reserves have
been provided.
(b) The Selling Stockholder represents and warrants to, and agrees
with, the several Underwriters that:
(i) The Selling Stockholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by the Selling Stockholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by the Selling Stockholder on such Closing
Date hereunder; and upon the delivery of and payment for the Offered
Securities to be delivered by the Selling Stockholder on each Closing
Date hereunder, assuming each such Underwriter has no notice of any
adverse claim (within the meaning of Section 8-105 of the Uniform
Commercial Code in effect in the State of New York (the "UCC")), such
Underwriter will acquire valid and unencumbered title to the Offered
Securities to be delivered by the Selling Stockholder on such Closing
Date.
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(ii) On the effective date of the Registration Statement, the
Registration Statement did not include 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, and on the date of this Agreement, the Registration
Statement does not include 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, and the
Prospectus does not include 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, in light of the
circumstances under which they were made, not misleading. The
preceding sentence applies only to the extent that any statements in
or omissions from the Registration Statement or the Prospectus, as
the case may be, are based on written information furnished to the
Company by the Selling Stockholder specifically for use therein.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Selling
Stockholder and any person that would give rise to a valid claim
against the Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with
this offering.
(iv) The Selling Stockholder has full right, power and authority
to enter into this Agreement; the execution, delivery and performance
of this Agreement, compliance by the Selling Stockholder with all
provisions hereof and the consummation by the Selling Stockholder of
the transactions contemplated hereby will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (A) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Selling Stockholder or any of its properties,
(B) any agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any of
the properties of the Selling Stockholder is subject, or (C) the
certificate of incorporation or by-laws, as applicable, of the
Selling Stockholder, except, in the case of clauses (A) and (B), for
such breaches, violations or defaults that, singly or in the
aggregate, would not have a Material Adverse Effect; and, no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body by the Selling
Stockholder is required for the execution, delivery and performance
of this Agreement by the Selling Stockholder and the consummation by
the Selling Stockholder of the transactions contemplated hereby,
except such as have been obtained and made under the Act, the
Exchange Act and such as may be required under state securities laws.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and the Selling Stockholder, at a purchase price of $17.20 per share, the number
of Firm Securities set forth below the caption "Company" or "Selling
Stockholder," as the case may be, and opposite the name of such Underwriter in
Schedule A hereto.
The Company and the Selling Stockholder will deliver the Firm
Securities to the Representatives for the accounts of the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to Credit Suisse
First Boston LLC ("CSFB") drawn to the order of the Company in the case of
3,666,667 shares of Firm Securities and the Selling Stockholder in the case of
1,333,333 shares of Firm Securities, at the office of Xxxxxx & Xxxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York time, on October
22, 2003, or at such other time not later than seven full business days
thereafter as CSFB and the Company determine, such time being herein referred to
as the "FIRST CLOSING DATE." For purposes of Rule 15c6-1 under the Exchange Act,
the First Closing Date (if later than the otherwise applicable settlement date)
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shall be the settlement date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFB requests and will be made
available for checking and packaging at the above office of Xxxxxx & Xxxxxxx LLP
at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFB given to the Company and
the Selling Stockholder from time to time but not more than 30 days subsequent
to the date of the Prospectus, the Underwriters may purchase all or less than
all of the Optional Securities at the purchase price per Security to be paid for
the Firm Securities. The Selling Stockholder agrees to sell to the Underwriters
the number of shares of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same proportion as the number of Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by CSFB to eliminate fractions) and may be purchased by
the Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CSFB to the Company and the Selling Stockholder.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "OPTIONAL CLOSING DATE," which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
CSFB but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Selling Stockholder will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Representatives for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to CSFB
drawn to the order of the Selling Stockholder, at the above office of Xxxxxx &
Xxxxxxx LLP. The certificates for the Optional Securities being purchased on
each Optional Closing Date will be in the form of one or more global securities,
in such denominations and registered in such names as CSFB requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking at the above office of Xxxxxx & Xxxxxxx LLP at a reasonable time in
advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholder. The
Company agrees with the several Underwriters and the Selling Stockholder that:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with the applicable paragraph of Rule
424 not later than the second business day following the execution
and delivery of this Agreement.
(b) The Company will advise CSFB promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and
will afford CSFB a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise
CSFB promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will
use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
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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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify CSFB of such event and will promptly
prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither CSFB's
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set
forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months, after
the date of this Agreement, the Company will make generally available
to its securityholders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date
of the Registration Statement, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to
become effective prior to the date of this Agreement and (iii) the
date of the Company's most recent Annual Report on Form 10-K filed
with the Commission prior to the date of this Agreement, which will
satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives one signed
copy of the Registration Statement, including all exhibits, in the
form it became effective and of all amendments thereto, copies of
each related preliminary prospectus, any related preliminary
prospectus supplement, and, so long as a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus
and all amendments and supplements to such documents, in each case in
such quantities as CSFB reasonably requests. The Prospectus shall be
so furnished on or prior to 3:00 P.M., New York time, on the business
day following the execution and delivery of this Agreement. All other
such documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFB designates and will continue such qualifications in effect so
long as required for the distribution of the Offered Securities;
provided that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(g) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement
under the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, other disposition or filing, without
the prior written consent of CSFB, except (i) issuances of Securities
pursuant to the conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case
outstanding on the date hereof, (ii) grants of employee stock options
or restricted stock pursuant to the terms of a plan in effect on the
date hereof, or (iii) issuances of Securities pursuant to the
Company's employee stock purchase plan.
(h) The Company agrees with the several Underwriters and the
Selling Stockholder that the Company will pay all expenses incident
to the performance of the obligations of both the Company and the
Selling Stockholder under this Agreement, including, but not limited
to, any filing fees and other expenses (including reasonable fees and
disbursements of counsel) in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFB designates and the printing of memoranda relating thereto, for
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any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities,
including the cost of any private aviation used in connection with
attending or hosting such meetings, and for expenses incurred in
distributing preliminary prospectuses, preliminary prospectus
supplements and the Prospectus (including any amendments and
supplements thereto) to the Underwriters or to the Selling
Stockholder, as the case may be. Notwithstanding the foregoing, in
addition to any Underwriters' discounts or commissions, the Selling
Stockholder agrees with the several Underwriters and the Company to
pay all fees and disbursements of its counsel and any transfer taxes
on the sale by the Selling Stockholder of the Offered Securities to
the Underwriters.
(i) The Selling Stockholder agrees, for a period of 90 days
after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into
a transaction which would have the same effect, or enter into any
swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities,
whether any such aforementioned transaction is to be settled by
delivery of the Securities or such other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer,
sale, pledge or disposition, or enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior
written consent of CSFB.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholder of their
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of this Agreement, the
Representatives shall have received a letter, dated the date of
delivery thereof, of PricewaterhouseCoopers LLP confirming that they
are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating
to the effect that:
(i) in their opinion the financial statements and
any schedules and any summary of earnings examined by them
and included in the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants
for a review of interim financial information as described
in Statement of Auditing Standards No. 100, Interim
Financial Information, on any unaudited financial
statements included in the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available
interim financial statements of the Company, inquiries of
officials of the Company who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial
statements, if any, and any summary of earnings
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 published Rules and Regulations or any
9
material modifications should be made to such
unaudited financial statements and summary of
earnings for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule"
information is contained in the Prospectus, the
unaudited consolidated net sales, net operating
income, net income and net income per share
amounts or other amounts constituting such
"capsule" information and described in such
letter do not agree with the corresponding
amounts set forth in the unaudited consolidated
financial statements or were not determined on a
basis substantially consistent with that of the
corresponding amounts in the audited statements
of income;
(C) at the date of the latest
available balance sheet read by such accountants,
or at a subsequent specified date not more than
three business days prior to the date of the such
letter, there was any change in the capital stock
or any increase in short-term indebtedness or
long-term debt of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the closing
date of the latest income statement included in
the Prospectus to the closing date of the latest
available income statement read by such
accountants there were any decreases, as compared
with the corresponding period of the previous
year, in consolidated net sales, net operating
income or in the total or per share amounts of
consolidated income before extraordinary items or
net income;
except in all cases set forth in clauses (C) and (D) above
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages
and other financial information are derived from the
general accounting records of the Company and its
subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(b) On or prior to the date of this Agreement, the
Representatives shall have received a certificate, dated the date of
delivery thereof, of Xxxxxxx X. Xxxxx, executive vice president and
chief financial officer of the Company, stating to the effect that:
(i) to his knowledge, the financial statements
and any schedules and any summary of earnings reviewed by
him and included in the Prospectus for the year ended
January 31, 2001 (A) comply as to form in all material
respects with the applicable accounting requirements of the
10
Act and the related published Rules and Regulations, and
(B) present fairly, in all material respects, the financial
condition of the Company and its consolidated subsidiaries
and their results of operations and cash flows for the
periods shown, and such financial statements have been
prepared in conformity with United States generally
accepted accounting principles; and
(ii) he has compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages
and other financial information are derived from the
general accounting records of the Company and its
subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
certificate and has found such dollar amounts, percentages
and other financial information to be in agreement with
such results, except as otherwise specified in such
certificate.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(c) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. No stop order suspending the effectiveness of
the Registration Statement or of any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted
or, to the knowledge of the Company or any Underwriter, shall be
contemplated by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change in the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries taken as one enterprise which, in
the judgment of a majority in interest of the Underwriters including
the Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than
an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii)
any change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would,
in the judgment of a majority in interest of the Underwriters
including the Representatives, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market, or any setting of minimum
prices for trading on such exchange; (v) or any suspension of trading
of any securities of the Company on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by U.S.
Federal or New York authorities; (vii) any major disruption of
settlements of securities or clearance services in the United States
or (viii) any attack on, outbreak or escalation of hostilities or act
of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered
Securities.
11
(e) The Representatives shall have received an opinion,
dated such Closing Date, of Weil, Gotshal & Xxxxxx LLP, counsel for
the Company, to the effect that:
(i) The Company is a corporation validly existing
under the laws of the State of Florida and its status is
active. The Company has all requisite corporate power and
authority to own, lease and operate its properties and to
carry on its business as described in the Prospectus.
(ii) Based solely upon our review of certified
documents received from the appropriate governmental
authorities in each jurisdiction, the Company is duly
qualified to transact business and is in good standing as a
foreign corporation in each jurisdiction specified on
Schedule I attached to such opinion.
(iii) Each U.S. subsidiary of the Company is a
corporation validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as
described in the Prospectus.
(iv) All of the outstanding shares of capital
stock of each subsidiary of the Company are owned of record
by the Company. To the best of our knowledge, such shares
are also owned beneficially by the Company and are free and
clear of all adverse claims, limitations on voting rights,
options and other encumbrances and are duly authorized,
validly issued, fully paid and nonassessable.
(v) The Offered Securities to be issued pursuant
to the Agreement have been duly authorized and, when issued
as contemplated by the Agreement, will be validly issued,
fully paid and nonassessable and free of preemptive rights
pursuant to law or in the Company's Articles of
Incorporation, as amended and restated to date. The Offered
Securities conform in all material respects with the
description thereof in the Prospectus.
(vi) To the best of our knowledge, except with
respect to the registration rights of the Selling
Stockholder or as disclosed in the Prospectus, there are no
outstanding contracts, agreements or understandings between
the Company and any person granting such person the right
to require the Company to file a registration statement
under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other
registration statement filed by the Company under the Act
that have not been validly waived or satisfied prior to the
date hereof.
(vii) The Company is not, and, after giving
effect to the issuance and sale of the Offered Securities
in accordance with the terms of the Agreement and the
application of the proceeds therefrom as described in the
Prospectus, will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(viii) No consent, approval, waiver, license or
authorization or other action by or filing with any New
York, Florida or federal governmental authority is required
in connection with the execution and delivery by the
Company of the Agreement, the consummation by the Company
of the transactions contemplated thereby or the performance
by the Company of its obligations thereunder, except for
filings and other actions required pursuant to the Act
and/or the Securities Exchange Act of 1934 and the rules
and regulations thereunder, federal and state securities or
blue sky laws, as to which we express no opinion in this
12
paragraph 8, and those already obtained on or prior to the
date of this Agreement.
(ix) The execution and delivery by the Company of
the Agreement and the performance by the Company of its
obligations thereunder will not conflict with, constitute a
default under or violate (i) any of the terms, conditions
or provisions of the Articles of Incorporation, as amended
and restated to date, or by-laws of the Company, (ii) any
of the terms, conditions or provisions of any material
document, agreement or other instrument to which the
Company or any of its subsidiaries is a party or by which
it is bound and identified on Schedule II attached to such
opinion as all of the documents, agreements and instruments
that are material to the financial condition or results of
operations of the Company and its subsidiaries taken as a
whole, (iii) New York, Florida or federal law or regulation
(other than federal and state securities or blue sky laws,
as to which we express no opinion in this paragraph 9), or
(iv) any judgment, writ, injunction, decree, order or
ruling of any court or governmental authority binding on
the Company of which we are aware.
(x) The Registration Statement has become
effective under the Act, and we are not aware of any stop
order suspending the effectiveness of the Registration
Statement. To our knowledge, no proceedings therefor have
been initiated or overtly threatened by the Commission and
any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Act has been made
in the manner and within the time period required by such
Rule.
(xi) The statements in the Prospectus under the
captions "Description of Capital Stock," "Certain U.S.
Federal Tax Considerations for Non-U.S. Holders" and
"Underwriting," insofar as such statements constitute
summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called
for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to
therein in all material respects.
(xii) To the best of our knowledge, there are no
legal or governmental proceedings pending or overtly
threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company
or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the
Prospectus and are not so described or any contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as
required.
(xiii) This Agreement has been duly authorized,
executed and delivered by the Company.
In addition, Weil, Gotshal & Xxxxxx LLP has participated in
conferences with representatives of the Company, its independent
public accountants, you and your counsel, at which conferences the
contents of the Registration Statement, the Prospectus and related
matters were discussed. In the course of performing the services
referred to above, no facts have come to the attention of Weil,
Gotshal & Xxxxxx LLP which cause them to believe that the
Registration Statement, on the effective date thereof, or any
document incorporated by reference therein, as of the date of its
filing with the Commission, 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 contained therein
13
not misleading or that the Prospectus, as of its date or as of the
date hereof, together with any document incorporated by reference
therein at that date, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(f) The Representatives shall have received an opinion,
dated such Closing Date, of Cravath, Swaine & Xxxxx LLP, counsel for
the Selling Stockholder, to the effect that:
(i) Assuming that (i) the Depositary Trust
Company ("DTC") is a "clearing corporation" as defined in
Section 8-102(a)(5) of the UCC, (ii) such Underwriter
acquires the interest in the Shares purchased by such
Underwriter without notice of any "adverse claim" (within
the meaning of Section 8-105 of the UCC), (iii) the Shares
are delivered to DTC on the date hereof, (iv) such
Underwriter purchases the interest in the Shares acquired
by such Underwriter by making payment therefor, as provided
for in this Agreement, and (v) such Underwriter has the
interest in the Shares purchased by such Underwriter
credited to one or more "securities accounts" (as defined
in Section 8-501(a) of the UCC) of such Underwriter
maintained with DTC, each Underwriter will have acquired a
"security entitlement" (within the meaning of Section
8-102(a)(17) of the UCC) in respect of the Shares purchased
by such Underwriter, and no action based on an "adverse
claim" (as defined in Section 8-102(a)(1) of the UCC) may
be asserted against such Underwriter with respect to such
security entitlement;
(ii) No consent, approval, authorization or order
of, or filing with, any U.S. Federal or New York State
governmental authority or regulatory body is required to be
obtained or made by the Selling Stockholder for the
consummation by the Selling Stockholder of the transactions
to be performed by the Selling Stockholder under this
Agreement, except such as have been obtained under the Act,
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and
distribution of the Shares of the Selling Stockholder by
the Underwriters and such filings with the Commission by
the Selling Stockholder required under the Exchange Act.
(iii) None of the sale of the Shares by the
Selling Stockholder, the consummation by the Selling
Stockholder of any other of the transactions contemplated
by this Agreement, or the execution, delivery or
performance by the Selling Stockholder of this Agreement
will conflict with, result in a breach of or constitute a
default under any of the terms and provisions of the
certificate of incorporation or by-laws of the Selling
Stockholder;
(iv) This Agreement has been duly authorized,
executed and delivered by the Selling Stockholder.
(g) The Representatives shall have received from Xxxxxx &
Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statement, the Prospectus and other
related matters as the Representatives may require, and the Selling
Stockholder and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(h) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
14
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in the Prospectus
or as described in such certificate.
(i) The Representatives shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Selling Stockholder
in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Selling Stockholder in this Agreement are true and
correct and that the Selling Stockholder has complied with all
agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date.
(j) The Representatives shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(k) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each of the
executive officers and directors of the Company.
(l) To avoid a 28% backup withholding tax the Selling
Stockholder will deliver to CSFB 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).
(m) The Representatives shall have received an opinion,
dated such Closing Date, of Swiss counsel for the Company, in form
and substance reasonably satisfactory to the Underwriters.
The Selling Stockholder and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFB may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, its partners, members, directors and
officers and each person, if any who controls such Underwriter within the
meaning of Section 15 of the Act, 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 any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, 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 loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will 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 in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
15
furnished by any Underwriter consists of the information described as such in
subsection (c) below; and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages or liabilities purchased the Offered
Securities concerned, to the extent that a prospectus relating to such Offered
Securities was required to be delivered by such Underwriter under the Act in
connection with such purchase and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus (exclusive of material
incorporated by reference) if the Company had previously furnished copies
thereof to such Underwriter.
(b) The Selling Stockholder will indemnify and hold harmless each
Underwriter, its partners, directors and officers and each person who controls
such Underwriter within the meaning of Section 15 of the Act, 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 any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, 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 loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Stockholder will 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 in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by an Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below; provided, further,
that the Selling Stockholder shall only be subject to such liability to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission is based upon information provided by the Selling Stockholder
or contained in a representation or warranty given by the Selling Stockholder in
this Agreement; provided, further, that the liability of the Selling Stockholder
under this subsection shall be limited to an amount equal to the aggregate gross
proceeds after underwriting commissions and discounts, but before expenses, to
the Selling Stockholder from the sale of Securities sold by the Selling
Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, and the
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or the 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 any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or the 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 reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and the Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of (i) the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting" and the information contained in the twelfth paragraph under the
16
caption "Underwriting"; and (ii) the information in the Prospectus furnished on
behalf of the Representatives in the eleventh paragraph under the caption
"Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a), (b) or (c)
above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who 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 will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action 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 an indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholder on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholder on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholder on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholder bear to
the total underwriting discounts and commissions received by the Underwriters.
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, the Selling Stockholder or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of 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 action or claim which is
the subject of this subsection (e). 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 Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
17
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder under
this Section shall be in addition to any liability which the Company and the
Selling Stockholder 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
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
director of the Company, to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company or
the Selling Stockholder within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First Closing Date or any Optional Closing Date and the aggregate number of
shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares
of Offered Securities that the Underwriters are obligated to purchase on such
Closing Date, CSFB may make arrangements satisfactory to the Company and the
Selling Stockholder for the purchase of such Offered Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFB, the Company and the Selling Stockholder
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Company or the Selling
Stockholder, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholder, of the Company or its officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholder shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholder, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(d), the Company and
the Selling Stockholder will, jointly and severally, reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
18
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or faxed and confirmed to
the Representatives, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Transactions Advisory Group (fax:
000-000-0000), or, if sent to the Company, will be mailed, delivered or faxed
and confirmed to it at Xxxxxxxxx Xxxxx, Inc., 00000 XX 00xx Xxxxxx, Xxxxx Xxxxx,
Xxxxxxx 00000, Attention: General Counsel (fax: (000) 000-0000), or, if sent to
the Selling Stockholder, will be mailed, delivered or faxed and confirmed to
Conopco, Inc. at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or faxed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFB will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed 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 Agreement.
14. APPLICABLE LAW. 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 Company hereby submits 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.
19
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholder, the Company and the several Underwriters in accordance with
its terms.
Very truly yours,
CONOPCO, INC.
By: /s/ Xxxxx X.Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXXXX XXXXX, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President, Finance
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
XXXXXX XXXXXXX & CO. INCORPORATED
X.X. XXXXXX SECURITIES INC.
SUNTRUST CAPITAL MARKETS, INC.
Acting on behalf of themselves and
as the Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxxxxxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Managing Director
SCHEDULE A
NUMBER OF FIRM SECURITIES TOTAL
TO BE SOLD BY NUMBER OF
------------------------- FIRM SECURITIES
SELLING TO BE
UNDERWRITER COMPANY STOCKHOLDER PURCHASED
----------- ------- ----------- ---------
Credit Suisse First Boston LLC...................... 1,650,125 600,500 2,250,625
Xxxxxx Xxxxxxx & Co. Incorporated................... 990,242 360,133 1,350,375
X.X. Xxxxxx Securities Inc.......................... 412,844 149,812 562,656
SunTrust Capital Markets, Inc....................... 247,873 89,721 337,594
CJS Securities, Inc. ............................... 121,861 44,389 166,250
X.X. Xxxx & Associates, Inc. ....................... 121,861 44,389 166,250
Xxxxxxx Xxxxxx Xxxxxx............................... 121,861 44,389 166,250
Total.................................... 3,666,667 1,333,333 5,000,000
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