Exhibit 1.1
o SHARES
XXXXX LIMITED
(A BERMUDA COMPANY)
COMMON SHARES, PAR VALUE US$.01 PER SHARE
FORM OF UNDERWRITING AGREEMENT
o, 2002
o, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
Credit Lyonnais Securities (USA) Inc.
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Prudential Securities Incorported
Xxxxxxx Xxxxx Barney Inc.
c/o Morgan Xxxxxxx & Co.
Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and c/o Credit Suisse First Boston
Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
Xxxxx Limited, a Bermuda company (the "COMPANY"), proposes to issue and
sell to the several Underwriters named in Schedule II hereto (the
"UNDERWRITERS"), and certain shareholders of the Company (the "SELLING
SHAREHOLDERS") named in Schedule I hereto severally propose to sell to the
several Underwriters, an aggregate of o common shares, par value U.S.$.01 per
share (the "FIRM SHARES"), of which o shares are to be issued and sold by the
Company and o shares are to be sold by the Selling Shareholders, each Selling
Shareholder selling the amount set forth opposite such Selling
Shareholder's name in Schedule I hereto.
The Company also proposes to issue and sell to the several Underwriters
not more than an additional o common shares, par value U.S.$.01 per share (the
"ADDITIONAL SHARES") if and to the extent that you, as Managers of the offering,
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such common shares granted to the Underwriters in Section 3 hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "SHARES." The common shares having a par value of U.S.$.01 per share of
the Company to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the "COMMON SHARES." The Company and the
Selling Shareholders are hereinafter sometimes collectively referred to as the
"SELLERS."
The Common Shares, including the Shares, will have attached thereto
rights (the "RIGHTS") to purchase one-thousandth (1/1000) of a share of Series A
Preference Shares, par value US$.01 per share (the "SERIES A PREFERENCE
SHARES"). The Rights are to be issued pursuant to a Rights Agreement (the
"RIGHTS AGREEMENT") dated as of August 1, 2001 between the Company and Mellon
Investor Services L.L.C.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares and the Rights. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional Common Shares pursuant to Rule 462(b) under the Securities Act (the
"RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration
Statement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the best knowledge of the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
company in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder, to own
its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership
or leasing of property 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 Company and its subsidiaries,
taken as a whole.
(d) Each significant subsidiary (as such term is defined in Rule 1-02
of Regulation S-X, a "SIGNIFICANT SUBSIDIARY") of the Company has been
duly incorporated, is validly existing as a company and, if applicable,
is in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property 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 Company and its subsidiaries,
taken as a whole; all of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and, except as
described in the Prospectus and to the extent disclosed in the
Prospectus, are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized share capital of the Company conforms as to legal
matters in all material respects to the description thereof contained
in the Prospectus.
(g) The Common Shares (including the Shares to be sold by the Selling
Shareholders) outstanding prior to the issuance of the Shares to be
sold by the Company have been duly authorized and are validly issued,
fully paid and non-assessable.
(h) The Rights Agreement has been duly authorized, executed and
delivered by the Company; the Rights have been duly authorized by the
Company and, when issued upon issuance of the Shares, will be validly
issued; and the Series A Preference Shares have been duly authorized by
the Company and validly reserved for issuance upon the exercise of the
Rights and, when issued and paid for upon exercise in accordance with
the terms of the Rights Agreement, will be validly issued, fully paid
and non-assessable.
(i) The Shares to be sold by the Company have been duly authorized and,
when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be subject to any preemptive or
similar rights.
(j) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the Memorandum of
Association or Bye-Laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as have
already been obtained or as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of
the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, 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 statutes, regulations, contracts or other documents
that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(m) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as
described in the Prospectus will not be, required to register as an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(o) The Company does not believe that it is currently a "passive
foreign investment company" as defined in Section 1296 of the Internal
Revenue Code, as amended, and the Treasury Regulations promulgated
thereunder.
(p) Except as described in the Prospectus, the Company and its
Significant Subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(q) To the knowledge of the Company, there are no costs or liabilities
associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(r) Except as described 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 Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement.
(s) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) the Company and
its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) the Company
has not purchased any of its outstanding Common Shares, nor declared,
paid or otherwise made any dividend or distribution of any kind on its
share capital other than ordinary and customary dividends; and (iii)
there has not been any material change in the share capital, short-term
debt or long-term debt of the Company and its subsidiaries, except in
each case as described in the Prospectus.
(t) The Company and its Significant Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its Significant
Subsidiaries; and any real property and buildings held under lease by
the Company and its Significant Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its Significant
Subsidiaries, in each case except as described in the Prospectus.
(u) The Company and its Significant Subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business
now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(v) No material labor dispute with the employees of the Company or any
of its Significant Subsidiaries exists, or, to the knowledge of the
Company, is imminent, except as described in the Prospectus; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(w) The Company and each of its Significant 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; neither the Company nor any of
its Significant Subsidiaries has been refused any insurance coverage
sought or applied for; and neither the company nor any of its
Significant Subsidiaries has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, except as described in the Prospectus.
(x) The Company and its Significant Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any of its
Significant Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, except as described in the Prospectus.
(y) The Company and each of its Significant Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with applicable generally accepted accounting principles and
to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each of
the Selling Shareholders represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the
performance by such Selling Shareholder of its obligations under, this
Agreement, the Custody Agreement signed by such Selling Shareholder and
Mellon Investor Services LLC, as Custodian, relating to the deposit of
the Shares to be sold by such Selling Shareholder (the "CUSTODY
AGREEMENT") and the Power of Attorney appointing certain individuals as
such Selling Shareholder's attorneys-in-fact to the extent set forth
therein
relating to the transactions contemplated hereby and by the
Registration Statement (the "POWER OF ATTORNEY"), will not contravene
any provision of applicable law, or the certificate of incorporation,
by-laws or formation document of such Selling Shareholder (if such
Selling Shareholder is a corporation) or the trust agreement of such
Selling Shareholder (if such Selling Shareholder is a trust), or any
agreement or other instrument binding upon such Selling Shareholder or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Shareholder, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement or the
Custody Agreement or Power of Attorney of such Selling Shareholder,
except such as have already been obtained or as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have,
valid title to the Shares to be sold by such Selling Shareholder and
the legal right and power, and all authorization and approval required
by law, to enter into this Agreement, the Custody Agreement and the
Power of Attorney and to sell, transfer and deliver the Shares to be
sold by such Selling Shareholder.
(d) The Shares to be sold by such Selling Shareholder pursuant to this
Agreement have been duly authorized and are validly issued, fully paid
and non-assessable.
(e) The Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by such Selling Shareholder and are
valid and binding agreements of such Selling Shareholder, enforceable
against such Selling Shareholder in accordance with their respective
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity.
(f) Delivery of the Shares to be sold by such Selling Shareholder
pursuant to this Agreement will pass title to such Shares free and
clear of any security interests, claims, liens, equities and other
encumbrances.
(g) There are no legal or governmental proceedings pending or, to the
knowledge of such Selling Shareholder, threatened to which such Selling
Shareholder is a party or to which any of the properties of such
Selling Shareholder is subject other than proceedings that would not
have a material adverse effect on the power or ability of such Selling
Shareholder to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Prospectus.
(h) Upon Transfer (as defined below) of the Shares to The Depository
Trust Company, The Depository Trust Company will acquire the Shares
free of all adverse claims (within the meaning of Sections 8- 102(a)(1)
and
8-303 of the Uniform Commercial Code as in effect in New York (the
"UCC")). "TRANSFER" of the Shares to The Depository Trust Company will
occur upon the making by the Company's transfer agent of appropriate
entries transferring the Shares on its books and records to The
Depository Trust Company. Each of the Underwriters shall acquire a
"securities entitlement" (within the meaning of Section 8-102(a)(17) of
the UCC) in the Shares to be purchased by it, free of all adverse
claims created by, through or with respect to the Selling Shareholder,
upon the making by The Depository Trust Company of a book entry that
shares of the Company's stock in the amounts set forth opposite each
Underwriter's name on Schedule I hereto have been credited to such
Underwriter's security account (within the meaning of Section 8-501(a)
of the UCC) with The Depository Trust Company.
(i) With respect to information relating to such Selling Shareholder
(i) the Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (ii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(j) Such Selling Shareholder has not taken, and will not take, directly
or indirectly, any action designed to, or which might reasonably be
expected to, cause or result in stabilization nor manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Shares pursuant to the distribution contemplated by this
Agreement, and other than as permitted by the Securities Act, such
Selling Shareholder has not distributed and will not distribute any
prospectus or other offering material in connection with the offering
and sale of the Shares.
3. AGREEMENTS TO SELL AND PURCHASE. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $o a share (the "PURCHASE
PRICE") the number of Firm Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
number of Firm Shares to be sold by such Seller as the number of Firm Shares set
forth in Schedule I hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to o Additional Shares
at the Purchase Price. If you, on behalf of the Underwriters, elect to exercise
such
option, you shall so notify the Company in writing not later than 30 days after
the date of this Agreement, which notice shall specify the number of Additional
Shares to be purchased by the Underwriters and the date on which such shares are
to be purchased. Such date may be the same as the Closing Date (as defined
below) but not earlier than the Closing Date nor later than ten business days
after the date of such notice. Additional Shares may be purchased as provided in
Section 5 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Shares. If any Additional Shares are to
be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
total number of Additional Shares to be purchased as the number of Firm Shares
set forth in Schedule II hereto opposite the name of such Underwriter bears to
the total number of Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated and Credit Suisse First Boston Corporation on
behalf of the Underwriters, it will not, during the period ending 90 days after
the date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any Common Shares or any securities convertible into
or exercisable or exchangeable for Common Shares or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Shares, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of Common Shares upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof of which
the Underwriters have been advised in writing, (C) issuances of stock options,
restricted stock or other awards granted pursuant to the Company's employee
equity incentive plan or non-employee directors' equity incentive plan as
described in the Prospectus; provided that such awards do not become exercisable
or vest during such 90-day period, or (D) issuances by the Company of Common
Shares in connection with the merger or amalgamation with, or acquisition of
another corporation or entity or the acquisition of the assets or properties of
any such corporation or entity and the related entry into a merger, amalgamation
or acquisition agreement with respect to such merger, amalgamation or
acquisition, so long as each of the recipients of the Common Shares agrees in
writing prior to the consummation of any such transaction, pursuant to an
instrument in form and substance reasonably satisfactory to Xxxxxx Xxxxxxx & Co.
Incorporated and Credit Suisse First Boston Corporation, to be bound by the
provisions of this paragraph for the remainder of such 90-day period as if such
recipients were the Company, and the public announcements and related filings of
registration statements with respect to any
such issuances; provided that if the Company is unable to obtain signed, written
lock-up agreements from the recipients of the Common Shares in connection with a
merger, amalgamation or acquisition as described in clause (D) of this
paragraph, then only the entry into the merger, amalgamation or acquisition
agreement, the public announcement of such transaction and the related filing of
a registration statement shall be permitted and not the related issuance of the
Common Shares. In addition, each Selling Shareholder, agrees that, without the
prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated and Credit Suisse
First Boston Corporation on behalf of the Underwriters, it will not, during the
period ending 90 days after the date of the Prospectus, make any demand for, or
exercise any right with respect to, the registration of any Common Shares or any
security convertible into or exercisable or exchangeable for Common Shares.
4. TERMS OF PUBLIC OFFERING. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at $o a
share (the "PUBLIC OFFERING PRICE") and to certain dealers selected by you at a
price that represents a concession not in excess of $o a share under the Public
Offering Price.
5. PAYMENT AND DELIVERY. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on o, 2002, or at such other time on the same or such other date, not
later than o, 2002, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 3 or at such other time on the same or on such other
date, in any event not later than o, 2002, as shall be designated in writing by
you. The time and date of such payment are hereinafter referred to as the
"OPTION CLOSING DATE."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the
Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Sellers to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 5:00 P.M. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the securities of the Company by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 6(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion
of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company is an exempted company duly incorporated
and validly existing under the laws of Bermuda in good standing;
(ii) the Company has the necessary corporate power and
authority to execute, deliver and perform its obligations under
this Agreement and to conduct its business as described in the
Prospectus. The execution and delivery of this Agreement by the
Company and the performance by the Company of its obligations
hereunder will not violate the memorandum of association or bye-
laws of the Company nor any applicable law, regulation, order or
decree in Bermuda;
(iii) the Company has taken all corporate action required to
authorize its execution and filing of the Registration Statement
and its execution, delivery and performance of this Agreement.
The Registration Statement has been duly executed by or on behalf
of the Company. This Agreement has been duly executed and
delivered by or on behalf of the Company, and constitutes the
valid and binding obligations of the Company, enforceable against
the Company in accordance with the terms hereof;
(iv) no order, consent, approval, license, authorization or
validation of, filing with or exemption by any government or
public body or authority of Bermuda or any sub-division thereof
is required to authorize or is required in connection with the
execution, delivery, performance and enforcement of this
Agreement, except such as have been duly obtained or filed in
accordance with Bermuda Law;
(v) it is not necessary or desirable to ensure the
enforceability in Bermuda of this Agreement that it be registered
in any register kept by, or filed with, any governmental
authority or regulatory body in Bermuda;
(vi) based solely upon a search of the Cause Book of the
Supreme Court of Bermuda conducted at a time reasonably close to
the Closing Date (which would not reveal details of proceedings
which have been filed but not actually entered in the Cause Book
at the time of such search), there are no judgments against the
Company, nor any legal or governmental proceedings pending in
Bermuda to which the Company is subject;
(vii) the authorized capital of the Company conforms, as to
legal matters, to the description thereof contained in the
Prospectus in all material respects;
(viii) the Common Shares (including the Shares to be sold by the
Selling Shareholders) in issue prior to the issuance of the
Shares to be sold by the Company are validly issued, fully paid
and non-assessable. When issued and paid for in accordance with
this Agreement, the Shares to be sold by the Company will be
validly issued, fully paid and non-assessable and will not be
subject to any statutory pre-emptive or similar rights;
(ix) the statements contained in the Prospectus under the
captions "Description of Share Capital," "Taxation - Bermuda Tax
Considerations" and "Enforcement of Civil Liabilities," insofar
as such statements constitute a summary of the matters of Bermuda
law referred to therein, fairly and accurately represent such
legal matters in all material respects;
(x) the execution and delivery of the Rights Agreement
and the issuance of the rights thereunder have been validly
authorized by all necessary corporate action on the part of the
Company;
(xi) this Agreement will not be subject to ad valorem stamp
duty in Bermuda and no registration, documentary, recording,
transfer or other similar tax, fee or charge is payable in
Bermuda in connection with the execution, delivery, filing,
registration or performance of this Agreement;
(xii) there is no income or other tax of Bermuda imposed
by withholding or otherwise on any dividend or distribution to be
made by the Company to the holders of the Shares;
(xiii) the Company has received an assurance from the Ministry
of Finance that in the event of there being enacted in Bermuda
any legislation imposing tax computed on profits or income or
computed on any capital asset, gain or appreciation, or any tax
in the nature of estate duty or inheritance tax, then the
imposition of any such tax shall not be applicable to the Company
or any of its operations or its shares, debentures or other
obligations (subject to the proviso expressed in such assurance
as described in the Prospectus);
(xiv) the choice of New York law as the governing law of this
Agreement is a valid choice of law and would be recognized and
given effect to in any action brought before a court of competent
jurisdiction in Bermuda, except for those laws (a) which such
court considers to be procedural in nature, (b) which are revenue
or penal laws or (c) the application of which would be
inconsistent with public policy, as such term is interpreted
under the laws of Bermuda. The submission in this Agreement to
the non-exclusive jurisdiction of any federal or state court in
the Borough of Manhattan, The City of New York, the State of New
York ("NY COURTS") and the appointment of an agent for service
pursuant to this Agreement is valid and binding upon the Company;
(xv) the Company has been designated as non-resident of
Bermuda for the purposes of the Exchange Control Act, 1972 and,
as such, is free to acquire, hold, transfer and sell foreign
currency (including the payment of dividends or other
distributions) and securities without restriction;
(xvi) based solely upon a review of the register of members of
the Company, each of the Selling Shareholders is the registered
holder of the Shares to be sold by such Selling Shareholder,
pursuant to this Agreement;
(xvii) the Company is not entitled to any immunity under the
laws of Bermuda, whether characterized as sovereign immunity or
otherwise, from any legal proceedings to enforce this Agreement
in respect of itself or its assets or property; and
(xviii) the courts of Bermuda would recognize as a valid
judgment, a final and conclusive judgment in personam obtained in
the NY Courts against the Company based on this Agreement
under which a sum of money is payable (other than a sum of money
payable in respect of multiple damages, taxes or other charges of
a like nature or in respect of a fine or other penalty) and would
give a judgment based thereon provided that (a) such courts had
proper jurisdiction over the parties subject to such judgment,
(b) such courts did not contravene the rules of natural justice
of Bermuda, (c) such judgment was not obtained by fraud, (d) the
enforcement of the judgment would not be contrary to the public
policy of Bermuda, (e) no new admissible evidence relevant to the
action is submitted prior to the rendering of the judgment by the
courts of Bermuda and (f) there is due compliance with the
correct procedures under the laws of Bermuda.
(d) The Underwriters shall have received on the Closing Date an opinion
of Shearman & Sterling, special U.S. counsel for the Company, dated the
Closing Date, to the effect that:
(i) this Agreement has been duly executed and delivered
by the Company;
(ii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any provision of U.S. federal or
New York law or any agreement or other instrument that is listed
as an exhibit to the Registration Statement that is governed by
New York law binding upon the Company or any of its subsidiaries,
and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required
for the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer
and sale of the Shares;
(iii) the Company is not, and after giving effect to the
offering and sale of the Shares and the application of the
proceeds
thereof as described in the Prospectus will not be, required
to register as an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended;
(iv) such counsel (A) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial and statistical data included
therein as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder, (B) has no reason to believe that (except
for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any
belief) the Registration Statement and the prospectus included
therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (C) has no reason
to believe that (except for financial statements and schedules
and other financial and statistical data as to which such counsel
need not express any belief) the Prospectus contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading
and (D) does not know of any contract or other document of a
character required to be filed as an exhibit to the Registration
Statement that is not so filed;
(v) the statements in the Prospectus under the caption
"Shares Eligible for Future Sale," 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;
(vi) under the laws of the State of New York relating to the
submission to personal jurisdiction, the Company has, pursuant to
Section 11 of this Agreement, validly and irrevocably submitted
to the personal jurisdiction of any New York state court or
United States federal court sitting in the Borough of Manhattan,
The City of New York, and any appellate court thereof, in any
suit, action or proceeding arising out of or based upon this
Agreement and has validly and irrevocably waived any objection to
the venue of a proceeding in any such court, and has validly
appointed the authorized agent named in Section 11 of this
Agreement for the purposes described therein, and service of
process effected in the manner set forth in Section 11 of this
Agreement will be effective
to confer valid personal jurisdiction over the Company; and
(vii) the statements in the Prospectus under the caption
"Taxation-United States Federal Income Tax Considerations" are
an accurate summary of the U.S. federal income tax matters
described therein.
(e) The Underwriters shall have received on the Closing Date an opinion
of Shearman & Sterling, special U.S. counsel for the Selling
Shareholders, dated the Closing Date, to the effect that:
(i) this Agreement has been duly executed and delivered by or
on behalf of each of the Selling Shareholders (to the extent
execution and delivery are governed by New York law);
(ii) the execution and delivery by the Selling
Shareholders of, and the performance by the Selling Shareholders
of their respective obligations under, this Agreement, the Power
of Attorney and the Custody Agreement will not contravene any
provision of U.S. federal or New York law;
(iii) Upon Transfer (as defined below) of the Shares to The
Depository Trust Company, The Depository Trust Company will
acquire the Shares free of all adverse claims (within the meaning
of Sections 8- 102(a)(1) and 8-303 of the Uniform Commercial Code
as in effect in New York (the "UCC")). "TRANSFER" of the Shares
to The Depository Trust Company will occur upon the making by the
Company's transfer agent of appropriate entries transferring the
Shares on its books and records to The Depository Trust Company.
Each of the Underwriters shall acquire a "securities entitlement"
(within the meaning of Section 8- 102(a)(17) of the UCC) in the
Shares to be purchased by it, free of all adverse claims created
by, through or with respect to the Selling Shareholder, upon the
making by The Depository Trust Company of a book entry that
shares of the Company's stock in the amounts set forth opposite
each Underwriter's name on Schedule I hereto have been credited
to such Underwriter's security account (within the meaning of
Section 8-501(a) of the UCC) with The Depository Trust Company;
(iv) such counsel is of the opinion that the information in
the Prospectus under the caption "Principal and Selling
Shareholders," insofar as such information relates to the Selling
Shareholders, is correct in all material respects; and
(v) under the laws of the State of New York relating to
the submission to personal jurisdiction, Section 11 of this
Agreement is sufficient to validly and irrevocably submit a
person or entity to the personal jurisdiction of any New York
state court or United States federal court sitting in the Borough
of Manhattan,
The City of New York, and any appellate court thereof, in any
suit, action or proceeding arising out of or based upon this
Agreement, and Section 11 is sufficient to validly and
irrevocably waive any objection to the venue of a proceeding in
any such court and validly appoint the authorized agent named in
Section 11 of this Agreement for the purposes described therein,
and service of process effected in the manner set forth in
Section 11 of this Agreement will be effective to confer valid
personal jurisdiction;
(f) The Underwriters shall have received on the Closing Date
opinions of counsel to each of the Selling Shareholders, dated the
Closing Date, to the effect that:
(i) the Power of Attorney, the Custody Agreement and the
Underwriting Agreement have been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder and are
valid and binding agreements of such Selling Shareholder,
enforceable against such Selling Shareholder in accordance with
their respective terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally
and general principles of equity;
(ii) the execution and delivery by such Selling
Shareholder of, and the performance by such Selling Shareholder
of its obligations under, the Power of Attorney, the Custody
Agreement and the Underwriting Agreement will not contravene any
provision of the applicable law, or the certificate of
incorporation, by-laws or other constitutive document of such
Selling Shareholder, or, to my knowledge after due inquiry, any
judgment, order or decree of any governmental body, agency or
court of having jurisdiction over such Selling Shareholder; and
(iii) no consent, approval, authorization or order of, or
qualification with, any governmental body, agency or court of
the applicable jurisdiction is required for the execution and
delivery of, and the performance by such Selling Shareholder of
its obligations under, the Power of Attorney, the Custody
Agreement or the Underwriting Agreement; and such Selling
Shareholder has the legal right and power to enter into the
Power of Attorney, the Custody Agreement and the Underwriting
Agreement and to sell, transfer and deliver the Shares.
(g) The Underwriters shall have received on the Closing Date opinions of
Xxxxx Xxxx Xxxxx, General Counsel for the Company, dated the Closing
Date, to the effect that:
(i) each Significant Subsidiary of the Company has
been duly incorporated, is validly existing as a company and, if
applicable, in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property 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 Company and its subsidiaries, taken as a
whole;
(ii) except as otherwise disclosed in the Prospectus and the
Registration Statement, all of the issued shares of capital stock
of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable,
and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(iii) to the best of such counsel's knowledge, none of the
Company's Significant Subsidiaries is presently (a) in material
violation of its charter or bylaws, or (b) in material breach of
any applicable statute, rule or regulation known to such counsel
or, to such counsel's knowledge, any order, writ or decree of any
court or governmental agency or body having jurisdiction over
such subsidiaries or over any of their properties or operations;
(iv) to the best of such counsel's knowledge, (a) there are no
legal or governmental proceedings pending or threatened to which
any of the Company's Significant Subsidiaries is a party or to
which any of the properties of the Company's Significant
Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described, and (b) there are no statutes or regulations,
contracts or other documents that are required to be described in
the Registration Statement or the Prospectus that are not
described as required;
(v) except as described in the Prospectus, the Company's
Significant Subsidiaries (A) are in compliance with any and all
applicable Environmental Laws, (B) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (C)
are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a
whole; and
(vi) the statements in the Prospectus under the captions
"Business-Government Regulation and Environmental Matters",
"Business-Legal Proceedings" and "Related Party Transactions",
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.
(h) The Underwriters shall have received on the Closing Date opinions of
Machado, Meyer, Sendacz e Opice Advogados, Brazilian counsel to the
Underwriters, dated the Closing Date, to the effect that:
(i) each of Xxxxx Alimentos S.A., Xxxxx Brasil S.A. and Xxxxx
Fertilizantes S.A. has been duly incorporated, is validly
existing as a corporation and, if applicable, in good standing
under the laws of Brazil, has the corporate power and authority
to own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property 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 Company and its subsidiaries, taken as a
whole;
(ii) all of the issued shares of capital stock of each of
Xxxxx Alimentos S.A., Bunge Brasil S.A. and Xxxxx Fertilizantes
S.A. have been duly and validly authorized and issued, are fully
paid and non-assessable and, to the extent disclosed in the
Prospectus, are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims; and
(iii) the statements in the Prospectus under the captions "Risk
Factors-We have not yet received approval from the Brazilian
antitrust authorities for our acquisition of Manah",
"Business-Government Regulation and Environmental Matters",
"Business-Legal Proceedings", 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.
(i) The Underwriters shall have received on the Closing Date an opinion
of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 5(d)(iv)(A)-
(C) and 5(d)(v) above (but only as to the statements in the Prospectus
under "Underwriters").
With respect to Section 5(d)(iv) above, Shearman & Sterling and
Xxxxx Xxxx & Xxxxxxxx may state that their opinion and belief are based
upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and
review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to
Section 5(e) above, Shearman & Sterling may rely upon an opinion or
opinions of counsel for any Selling Shareholders and, with respect to
factual matters and to the extent such counsel deems appropriate, upon
the representations of each Selling Shareholder contained herein and in
the Custody Agreement and Power of Attorney of such Selling Shareholder
and in other documents and instruments; PROVIDED that (A) each such
counsel for the Selling Shareholders is satisfactory to your counsel,
(B) a copy of each opinion so relied upon is delivered to you and is in
form and substance satisfactory to your counsel, (C) copies of such
Custody Agreements and Powers of Attorney and of any such other
documents and instruments shall be delivered to you and shall be in form
and substance satisfactory to your counsel and (D) Shearman & Sterling
shall state in their opinion that they are justified in relying on each
such other opinion.
The opinions of Xxxxxxx Xxxx & Xxxxxxx, Xxxxxxxx & Sterling and
Xxxxx Xxxx Xxxxx as described in Sections 5(c), (d), (e), and (g) above,
shall each be rendered to the Underwriters at the request of the Company
or one or more of the Selling Shareholders, as the case may be, and
shall so state therein.
(j) The Underwriters shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to the Underwriters,
from Deloitte & Touche, independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; PROVIDED that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(k) The "lock-up" agreements, each substantially in the form of Exhibit
A hereto, between you and certain shareholders, officers and directors
of the Company relating to sales and certain other dispositions of
shares of Common Shares or certain other securities, delivered to you on
or before the date hereof, shall be in full force and effect on the
Closing Date.
(l) The Shares shall have been approved for listing, subject to official
notice of issuance, on the New York Stock Exchange.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the
Company, the due authorization and issuance of the Additional Shares and other
matters related to the issuance of the Additional Shares.
7. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish to you, without charge, 6 signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City,
without charge, prior to 10:00 a.m. New York City time on the business
day next succeeding the date of this Agreement and during the period
mentioned in Section 7(c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Shares may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security holders and to
you as soon as practicable an earning statement covering the
twelve-month period ending December 31, 2002 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the
Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company agrees to pay
or cause to be paid all reasonable expenses incident to the performance
of their obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel, the Company's
accountants and special U.S. counsel for the Selling Shareholders in
connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or Legal Investment
memorandum in connection with the offer and sale of the Shares under
state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities
laws as provided in Section 7(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc. (the
"NASD"), (v) all fees and expenses in connection with the preparation
and filing of the registration statement on Form 8-A relating to the
Common Shares and all costs and expenses incident to listing the Shares
on the New York Stock Exchange, (vi) the cost of printing certificates
representing the Shares, (vii) the costs and charges of any transfer
agent, custodian, registrar or depositary, (viii) the costs and expenses
of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered in connection with the road show,
and (ix) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as
provided in this Section, Section 8 entitled "Indemnity and
Contribution", and the last paragraph of Section 10 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them and any advertising expenses
connected with any offers they may make. The provisions of this Section
shall not supersede or otherwise affect any agreement that the Sellers
may otherwise have for the allocation among themselves.
8. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein; PROVIDED, HOWEVER, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such
Selling Shareholder included in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Shareholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a), 8(b) or 8(c), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either such
Section and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Selling Shareholders and all persons, if
any, who control any Selling Shareholder within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters and such
control persons of any Underwriters, such firm shall be designated in writing by
Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the Company, such
firm shall be designated in writing by the Company. In the case of any such
separate firm for the Selling Shareholders and such control persons of any
Selling Shareholders, such firm shall be designated in writing by the persons
named as attorneys-in-fact for the Selling Shareholders under the Powers of
Attorney. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding 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 includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 8(a), 8(b)
or 8(c) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party or parties on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 8(e)(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 8(e)(i) above but also the relative fault of the
indemnifying party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Sellers
on the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Shares (before deducting expenses)
received by each Seller and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of
the Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Sellers on the one hand and the Underwriters on the other
hand 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, a Selling Shareholder or by the Underwriters and such parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(f) The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(e). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. Notwithstanding the provisions of this Section 8, no
Selling Shareholder shall be required to contribute any amount in excess of the
net proceeds (before deducting expenses) received by such Selling Shareholder
from the sale of such Selling Shareholder's Shares. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
8 and the representations, warranties and other statements of the Company and
the Selling Shareholders contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, any Selling Shareholder or any person controlling
any Selling Shareholder, or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
9. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
10. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
the Selling Shareholders for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Shareholders. In any such case either you or the relevant Sellers shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, on the Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Shares or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would
have been obligated to purchase in the absence of such default. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
11. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE. The
Sellers irrevocably agree that any legal suit, action or proceeding brought by
any Underwriter or by any person who controls any Underwriter arising out of or
relating to this Agreement or the transactions contemplated hereby may be
instituted in any federal or state court in the Borough of Manhattan, The City
of New York, the State of New York and irrevocably waive, to the fullest extent
permitted by law, any objection which they may now or hereafter have to the
laying of the venue of any such suit, action or proceeding and any claim of
inconvenient forum, and irrevocably submit to the non-exclusive jurisdiction of
any such court in any such suit, action or proceeding. To the extent that the
Sellers have or hereafter may acquire any immunity (on the grounds of
sovereignty or otherwise) from the jurisdiction of any court or from any legal
process with respect to themselves or their property in respect of their
obligations under this Agreement, the Sellers irrevocably waive, to the fullest
extent permitted by law, such immunity in respect of any such suit, action or
proceeding.
The Company (i) irrevocably designates and appoints its principal
executive offices at 00 Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000 (together with
any successor, the "COMPANY'S AUTHORIZED AGENT"), as its agent upon which
process may be served in any suit, action or proceeding described in the first
sentence of this Section 11 and represents and warrants that the Company's
Authorized Agent has accepted such designation and (ii) agrees that service of
process upon the Company's Authorized Agent and written notice of said service
to the Company mailed or delivered to its Chief Financial Officer at its
registered office at 0 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx, shall be deemed in
every respect effective service of process upon the Company in any such suit or
proceeding. The Company further agrees to take any and all action, including the
execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of the Company's Authorized Agent in
full force and effect so long as any of the Shares shall be outstanding.
The Selling Shareholders (i) irrevocably designate and appoint the
Company's principal executive offices at 00 Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx
00000 (together with any successor, the "SELLING SHAREHOLDERS' AUTHORIZED
AGENT"), as their authorized agent upon which process may be served in any suit,
action or proceeding described in the first sentence of this Section 11 and
represent and warrant that the Selling Shareholders' Authorized Agent has
accepted such designation and (ii) agree that service of process upon the
Selling Shareholders' Authorized Agent shall be deemed in every respect
effective service of process upon the Selling Shareholders in any such suit or
proceeding. The Selling Shareholders waive, to the fullest extent permitted by
law, any other requirements of or objections to personal jurisdiction with
respect thereto. The Selling Shareholders further agree to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
the Selling Shareholders' Authorized Agent in full force and effect so long as
any of the Shares shall be outstanding.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15. JUDGMENT CURRENCY. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest extent
permitted by law, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures Xxxxxx Xxxxxxx & Co. Incorporated and
Credit Suisse First Boston Corporation could purchase United States dollars with
such other currency in The City of New York on the business day preceding that
on which final judgment is given. The obligation of the Company with respect to
any sum due from it to any Underwriter shall, notwithstanding any judgment in a
currency other than United States dollars, be discharged only if and to the
extent that on the first business day following receipt by such Underwriter of
any sum adjudged to be so due in such other currency, such Underwriter may in
accordance with normal banking procedures purchase United States dollars with
such other currency. If the United States dollars so purchased are less than the
sum originally due to such Underwriter hereunder, the Sellers agree, as a
separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter or controlling
person against such loss. If the United States dollars so purchased are greater
than the sum originally due to such Underwriter or controlling person hereunder,
such Underwriter or controlling person agrees to pay to the Sellers an amount
equal to the excess of the dollars so purchased over the sum originally due to
such Underwriter or controlling person hereunder.
16. TAXES. All payments to be made by the Sellers under this Agreement
shall be paid free and clear of and without deduction or withholding for or on
account of, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature, imposed by Bermuda or
Argentina, Brazil or any other jurisdiction in which the Selling Shareholders
are located or by any department, agency or other political subdivision or
taxing authority thereof or therein, and all interest, penalties or similar
liabilities with respect thereto (collectively, "TAXES"). If any Taxes are
required by law to be deducted or withheld in connection with such payments, the
Sellers, jointly and severally, will increase the amount paid so that the full
amount of such payment is received by the Underwriters.
Very truly yours,
XXXXX LIMITED
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
The Selling Shareholders named in Schedule
I hereto, acting severally
By:
-------------------------------------
Name:
Title: Attorney-in-Fact
By:
-------------------------------------
Name:
Title: Attorney-in-Fact
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting severally on behalf of themselves and the several Underwriters named in
Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
-----------------------------------------
Name:
Title:
By: Credit Suisse First Boston Corporation
By:
-----------------------------------------
Name:
Title:
SCHEDULE I
NUMBER OF FIRM SHARES
SELLING SHAREHOLDER TO BE PURCHASED
SCHEDULE II
UNDERWRITERS
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
Xxxxxx Xxxxxxx & Co Incorporated
Credit Suisse First Boston Corporation
Credit Lyonnais Securities (USA) Inc.
Deutsche Banc Xxxx Xxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Prudential Securities Incorported
Xxxxxxx Xxxxx Barney Inc.
--------------------------
Total Firm Shares:
==========================
EXHIBIT A
FORM OF LOCK-UP LETTER
____________, 2002
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with Xxxxx Limited, a Bermuda corporation (the
"COMPANY") and certain shareholders of the Company (the "SELLING SHAREHOLDERS")
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters, including Xxxxxx Xxxxxxx (the "UNDERWRITERS") of shares (the
"SHARES") of the common stock of the Company (the "COMMON SHARES").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any Common Shares or
any securities convertible into or exercisable or exchangeable for Common
Shares, or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Shares, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Shares or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) the sale of any
Shares to the Underwriters pursuant to the Underwriting Agreement, (b)
transactions relating to Common Shares or other securities acquired in open
market transactions after the completion of the Public Offering, (c) transfers
of Common Shares by gift, will or intestacy, including, without limitation
transfers to a Privileged Relation (as defined below) of the undersigned or to a
settlement or trust established under the laws of any country,
A-1
(d) transfers to affiliates (as defined in Regulation C under the Securities Act
of 1933, as amended) of the undersigned, (e) transfers as a distribution to
limited partners, members or shareholders of the undersigned, and, in the case
of a settlement or trust, to the beneficiaries thereof, (f) transfers occurring
by operation of law, (g) pledges of Common Shares to a bank or other financial
institution or (h) transfers to other shareholders of the Company that have
executed lock-up agreements in connection with the Public Offering; PROVIDED,
that any transferee or pledgee pursuant to clauses (c) through (g) of this
sentence (i) shall execute a lock-up agreement in substantially the form hereof
covering the remainder of the 90-day period referred to herein and (ii) no
filing by any party, including any donor, donee, transferor or transferee, under
Section 16(a) of the Securities Exchange Act of 1934, as amended, shall be
required or shall be made voluntarily in connection with such transfer or
pledge, other than a filing on a Form 5 made after the expiration of the 90-day
period referred to above. In addition, the undersigned agrees that, without the
prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will
not, during the period commencing on the date hereof and ending 90 days after
the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any Common Shares or any security convertible
into or exercisable or exchangeable for Common Shares. The undersigned also
agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the undersigned's
Common Shares except in compliance with the foregoing restrictions.
The undersigned understands that the Company, the Selling Shareholders
and the Underwriters are relying upon this Lock-Up Agreement in proceeding
toward consummation of the Public Offering. The undersigned further understands
that this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned's heirs, legal representatives, successors and assigns.
This Lock-Up Agreement shall automatically terminate and have no further
force or effect if the Company, the Selling Shareholders and the Underwriters
agree not to proceed with the Public Offering or the Registration Statement for
the Public Offering is not declared effective by the Securities and Exchange
Commission by March 31, 2002.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Shareholders and the Underwriters.
A-2
Very truly yours,
------------------------------------------
Name
------------------------------------------
Address
*Lock-up letters will need to be executed by all those persons or entities who
have the power to vote or dispose of the Common Shares (for example, (i) a
trustee, in case the shares are held by a trust on behalf of the beneficial
owners, (ii) an individual, in case the shares are held directly by that person,
or (iii) an authorized corporate officer, in case the shares are owned by a
corporation).
**"Privileged Relation" in relation to an individual means his or her spouse and
any relative of such individual with a common ancestor up to the fourth degree
(including adopted children who have been adopted as a minor and step-children
who have acquired that relationship with such individual or with any such
relative as a minor) and any spouse of any such relative.
A-3
