Exhibit 1.1
DRAFT OF 7/16/02
[ ]
PETSMART, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[________], 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
As Representative of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. PETsMART, INC., a Delaware corporation ("COMPANY")
proposes to issue and sell to the several underwriters named in Schedule A
hereto (the "UNDERWRITERS") [________] shares of its common stock, $.0001 par
value ("SECURITIES") and the stockholders listed in Schedule B hereto ("SELLING
STOCKHOLDERS") propose severally to sell to the several Underwriters an
aggregate of 13,182,584 outstanding shares of the Securities (such ________
shares of Securities being hereinafter referred to as the "FIRM SECURITIES").
The Company also proposes to sell to the several Underwriters, at the option of
the Underwriters, an aggregate of not more than [________] additional shares of
its Securities, as set forth below (such [________] additional shares being
hereinafter referred to as the "OPTIONAL SECURITIES"). The Firm Securities and
the Optional Securities are herein collectively called the "OFFERED SECURITIES".
The Company and the Selling Stockholders hereby agree with the several
Underwriters as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-91156) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933 ("ACT")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "INITIAL REGISTRATION STATEMENT") has been declared effective,
either (A) an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("RULE 462(B)")
under the Act and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial registration statement
and, if applicable, the additional registration statement or (B) such
an additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (A) if the Company has advised the Representative that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (B) if the Company has advised the Representative that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
material incorporated by reference therein, including all information
contained in the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
includes, or
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will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified or to be in
good standing would not individually or in the aggregate have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated
or, with respect to any limited liability company, formed and is an
existing corporation or limited liability company, as the case may be,
in good standing under the laws of the jurisdiction of its
incorporation, or organization, as the case may be, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each subsidiary of the
Company is duly qualified to do business as a foreign corporation or
limited liability company, as the case may be, in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not have a
Material Adverse Effect; all of the issued and outstanding capital
stock, or membership interest, as applicable, of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid
and nonassessable; and the capital stock or membership interest, as
applicable, of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects, other than liens issued in connection with the Company's
existing credit facility.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus under the caption "Description of
Capital Stock"; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Other than as provided for in the PETsMART, Inc. Series
H Preferred Stock Purchase Agreement dated September 8, 1991, the
Letter Agreement dated June 25, 2002 by and between the Company and
Carrefour SA, and the Restated Registration and First Refusal Rights
Agreement dated as of October 30, 1992 by and among PETsMART and
certain investors, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
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respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(viii) The Securities are listed on the Nasdaq Stock Market's
National Market.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except (i) such as have been obtained and
made under the Act, (ii) such consents, approvals or filings as may be
required by or with the National Association of Securities Dealers,
Inc. (the "NASD") and (iii) such as may be required under state
securities laws.
(x) The execution, delivery and performance of this Agreement,
and the issuance and sale of Offered Securities will not result in a
breach or violation of (i) any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, which breach, violation or default would
individually or in the aggregate have a Material Adverse Effect, or
(ii) any agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the properties of the Company or any such
subsidiary is subject, which breach, violation or default would
individually or in the aggregate have a Material Adverse Effect, or
(iii) the charter or by-laws of the Company or any such subsidiary.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the Company
and its subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them as described in the Prospectus and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would have a Material Adverse
Effect.
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that might have a Material Adverse Effect.
(xv) Except as described in the Prospectus, the Company owns,
possesses or can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct its
business as described in the Prospectus, except where failure to so own
or possess such intellectual property rights would not individually or
in the aggregate have a Material Adverse Effect, and, except as
described in the Prospectus, has not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights and does not know of any basis for
the assertion of any such claim of infringement or conflict that, in
either such case, if determined adversely to the
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Company, would individually or in the aggregate have a Material Adverse
Effect. To the knowledge of the Company, no person or entity is
infringing any intellectual property rights of the Company other than
any such infringement which would not individually or in the aggregate
have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, permit, license, authorization, common law, decision
or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, storage, transport, process, disposal or
release of pollutants, hazardous or toxic substances or wastes or
relating to health, safety, or the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, is a party to or
affected by any proceeding or threatened action or suit and is subject
to any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; and the schedules included in each Registration
Statement present fairly the information required to be stated therein.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xx) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and files reports with the Commission on the Electronic Data
Gathering, Analysis, and Retrieval (XXXXX) system.
(xxi) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(xxii) Other than as set forth in the Registration Statements
or the Prospectus, there are no legal or governmental proceedings
pending or, to the Company's knowledge, threatened to which the Company
is a party or to which any of the properties of the Company is subject
that are required to be described in the Registration Statements or the
Prospectus and are not so described, and there are no statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statements or the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto that are not described or filed as required.
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(xxiii) Except as described in or contemplated by the
Prospectus, the Company is 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 it is engaged.
(xxiv) The Company and its subsidiaries maintain a system of
internal accounting controls that the Company believes are sufficient
for purposes of the prevention or detection of errors or irregularities
in amounts that could be expected to be material to the Company's
consolidated financial statements and the recording of transactions so
as to permit the preparation of such consolidated financial statements
in conformity with generally accepted accounting principles.
(b) Each Selling Stockholder, severally and not jointly, represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has valid and unencumbered title
with respect to the Offered Securities to be sold by such Selling
Stockholder that are outstanding as of the date hereof; and on the
First Closing Date hereinafter mentioned, such Selling Stockholder will
have valid and unencumbered title to the Offered Securities to be
delivered by such Selling Stockholder on the First Closing Date and
full right, power and authority to sell, assign, transfer and deliver
such Offered Securities to be delivered by such Selling Stockholder on
the First Closing Date; and upon the delivery of and payment for the
Offered Securities on the First Closing Date pursuant to and in
accordance with the provisions of this Agreement, the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on the First
Closing Date.
(ii) The information in the Registration Statement under the
caption "Principal and Selling Stockholder" which specifically relates
to such Selling Stockholder does not, and will not on the First Closing
Date, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against the Selling Stockholders or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(iv) Such Selling Stockholder has, and on each Closing Date
will have, full legal right, power and authority, and all authorization
and approval required by law, to enter into (A) this Agreement and (B)
the Power of Attorney of such Selling Stockholder appointing certain
individuals as the Selling Stockholder's attorneys-in-fact to the
extent set forth therein relating to the transactions contemplated
hereby ("ATTORNEYS") and by the Registration Statements (the "POWER OF
ATTORNEY"), and to sell, assign, transfer and deliver the Offered
Securities to be sold by the Selling Stockholders in the manner
provided herein and therein.
(v) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(vi) The Power of Attorney of such Selling Stockholder has
been duly authorized, executed and delivered by such Selling
Stockholder and is a valid and binding instrument of each Selling
Stockholder, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles, and, pursuant to
the Power of Attorney, the Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and deliver on
such Selling Stockholder's behalf this Agreement and any other document
that they, or any one of them, may deem necessary or desirable in
connection with the transactions contemplated hereby and thereby, and
to deliver the Offered Securities to be sold by such Selling
Stockholder pursuant to this Agreement.
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(vii) The execution, delivery and performance of this
Agreement and the Power of Attorney of such Selling Stockholder by or
on behalf of such Selling Stockholder and the consummation of the
transactions herein and therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over such Selling Stockholder or any of its
properties, or any agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or
to which any of the properties of the Selling Stockholder is subject
except for any such breaches, violations or defaults as will not,
individually or in the aggregate, have a material adverse effect on the
ability of the Selling Stockholders to consummate the transactions
contemplated hereby or thereby and will not result in a breach or
violation of the terms of, or constitute a default under, the charter,
by-laws or similar organizational document of such Selling Stockholder.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and the Selling
Stockholders agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and the Selling Stockholders, at a purchase price of $ per share, the number
of Firm Securities set forth below the caption "Company" or "Selling
Stockholders", as the case may be, and opposite the name of such Underwriter in
Schedule A hereto.
The Company and the Selling Stockholders will deliver the Firm
Securities to the Representative for the accounts of the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank reasonably acceptable to
Credit Suisse First Boston Corporation ("CSFBC") drawn to the order of the
Company in the case of [_________] shares of Firm Securities and the Selling
Stockholders in the case of [_________] shares of Firm Securities, at the office
of Xxxxx Xxxxxxxxxx LLP, at A.M., New York time, on , or at such
other time not later than seven full business days thereafter as CSFBC and the
Selling Stockholders determine, such time being herein referred to as the "FIRST
CLOSING DATE". For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the First Closing Date (if later than the otherwise applicable settlement
date) shall be the settlement date for payment of funds and delivery of
securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered by the Company will be
in definitive form, in such denominations and registered in such names as CSFBC
requests and will be made available for checking and packaging at the office of
Xxxxx Xxxxxxxxxx LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representative for the accounts of the several Underwriters, against payment
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of the purchase price therefor in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFBC
drawn to the order of the Company, at the office of Xxxxx Xxxxxxxxxx LLP. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the office
of Xxxxx Xxxxxxxxxx LLP at a reasonable time in advance of such Optional Closing
Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its reasonable best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement
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covering a period of at least 12 months beginning after the Effective
Date of the Initial Registration Statement (or, if later, the Effective
Date of the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "AVAILABILITY DATE" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year, "AVAILABILITY
DATE" means the 90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representative copies of
each Registration Statement (five of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished
as soon as available. The Company and the Selling Stockholders will pay
the expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution; provided that in no event shall
the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to taxation or service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(g) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group, on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-8 (or other applicable form or statement specified by
the United States Treasury Department regulations in lieu thereof).
(h) For a period of 90 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC, except issuances of Securities pursuant to
the conversion or exchange of convertible or exchangeable securities or
the exercise of warrants or options, or grants of employee stock
options or the sale or issuance of Securities pursuant to the terms of
an employee equity incentive or stock purchase plan in effect on the
date hereof.
(i) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement, for any filing fees
and other expenses (including fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto, for the filing fee incident to the review
by the National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments
and supplements thereto) to the Underwriters.
(j) The Selling Stockholders agree with the several
Underwriters to pay all expenses incident to the performance of their
obligations under this Agreement and to pay any
9
taxes (including transfer taxes) on the sale by the Selling
Stockholders of the Offered Securities to the Underwriters.
(k) Prior to the First Closing Date, and upon written request
of CSFBC or any Underwriter with respect to any other Closing Date (or
other date as may be specified in such request), the Company shall (i)
furnish to CSFBC or any such other Underwriter a certification, as
contemplated by and in compliance with Treasury regulations Section
1.897-2(h), that as of any Closing Date (or such other date as may be
specified in such request), the Offered Securities are not United
States real property interests as defined in Section 897(c)(1) of the
Internal Revenue Code of 1986, as amended (unless such certification is
untrue at the time of such request), (ii) file such certification with
the Internal Revenue Service in the manner and within the time period
specified in Treasury regulations Section 1.897-2(h) and (iii) promptly
after such filing, furnish to CSFBC or the Underwriter that has
requested a certificate, as the case may be, proof of such filing.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of
Deloitte & Touche LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or
10
any increase in short-term indebtedness or long-term
debt of the Company and its consolidated subsidiaries
or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in
consolidated net sales or operating income in the
total or per share amounts of consolidated net
income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements. All financial statements and
schedules included in material incorporated by reference into the
Prospectus shall be deemed included in the Registration Statements for
purposes of this subsection.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Selling Stockholders, the
Company or the Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
11
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as one enterprise
which, in the judgment of a majority in interest of the Underwriters
including the Representative, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating
of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any material suspension or
material limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; (v) any
major disruption of settlements of securities or clearance services in
the United States; or (vi) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of
the Underwriters including the Representative, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(d) The Representative shall have received an opinion, dated
such Closing Date, of Xxxxxx Godward LLP, counsel for the Company,
covering matters set forth on Exhibit A hereto.
(e) The Representative shall have received an opinion, dated
such Closing Date, of Xxxxx X. Xxxxxxx, General Counsel of the Company,
to the effect that:
(i) The Company is duly qualified to do business as a
foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification except
where the failure to be so qualified or to be in good standing
would not individually or in the aggregate have a Material
Adverse Effect;
(ii) Each subsidiary of the Company listed on Annex I
hereto (each a "SUBSIDIARY") has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and
authority to own its properties and conduct its business as
presently conducted; and each Subsidiary is duly qualified to
do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock
of each Subsidiary has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock of
each Subsidiary owned by the Company is owned free from liens,
encumbrances and defects, other than liens issued in
connection with the Company's existing credit facility.
(iii) Except as disclosed in the Prospectus, to such
counsel's knowledge, there are no pending actions, suits or
proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its
subsidiaries, would materially and adversely affect the
ability of the Company to perform its obligations under this
Agreement, or which are of a character required to be
disclosed in the Registration Statement which are not
disclosed as required; and to such counsel's knowledge, no
such actions, suits or proceedings are threatened or
contemplated.
Such counsel shall in addition state that such
counsel has no reason to believe that any part of a
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any
untrue statement of a material fact or
12
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; it being
understood that such counsel need express no statement as to
the financial statements and schedules and other financial
data and statistical data derived therefrom contained in the
Registration Statement or the Prospectus.
(f) The Representative shall have received an opinion, dated
such Closing Date, of Xxxxxxxx Chance Xxxxxx & Xxxxx, LLP, counsel for
the Selling Stockholders, to the effect that:
(i) Upon payment for the Firm Securities to be sold
by the Selling Stockholders and crediting of such Firm
Securities by DTC by book-entry to securities accounts of the
Underwriters, and assuming that neither DTC nor any of the
Underwriters has notice of any "adverse claim" (within the
meaning of Sections 8-102 and 8-105 of the New York Uniform
Commercial Code (the "UCC")) to such Firm Securities, under
Section 8-501 of the UCC each Initial Purchaser will acquire
security entitlements to such Firm Securities credited to
their respective accounts and each Initial Purchaser will be a
"protected purchaser" of such security entitlements within the
meaning of Section 8-303 of the UCC; and under Section 8-502
of the UCC an action based on an "adverse claim" (as defined
in Section 8-102 of the UCC) to such Firm Securities, whether
framed in conversion, replevin, constructive trust, equitable
lien or other theory, may not be asserted against any of the
Underwriters with respect to such security entitlements.
The opinion contemplated by clause (i) above shall be limited
to the laws of the state of New York.
(g) The Representative shall have received an opinion, dated
such Closing Date, of Xxxxxxx xxx Xxxx, counsel for Fourcar BV
("FOURCAR"), to the effect that:
(i) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by Fourcar for the
consummation of the transactions contemplated by the Power of
Attorney or this Agreement in connection with the sale of the
Offered Securities sold by Fourcar, except such as have been
obtained and made under the Act and such as may be required
under state securities laws;
(ii) The execution, delivery and performance of the
Power of Attorney and this Agreement and the consummation of
the transactions therein and herein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over Fourcar or any of its
properties or any agreement or instrument to which the Selling
Stockholder is a party or by which Fourcar is bound or to
which any of the properties of Fourcar is subject, or the
charter, by-laws or other organizational documents of the
Selling Stockholders;
(iii) The Power of Attorney with respect to Fourcar
has been duly authorized, executed and delivered by Fourcar
and constitutes valid and legally binding obligations of
Fourcar enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and
(iv) This Agreement has been duly authorized,
executed and delivered by or on behalf of Fourcar.
13
The opinions contemplated by clauses (i) through (iv) above
shall be limited to the laws of the Kingdom of the
Netherlands.
(h) The Representative shall have received an opinion, dated
such Closing Date, of Xxxxxxx xxx Xxxx, counsel for Fourcar Belgium SA
("FOURCAR BELGIUM"), to the effect that:
(i) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by Fourcar Belgium for the
consummation of the transactions contemplated by the Power of
Attorney or this Agreement in connection with the sale of the
Offered Securities sold by Fourcar Belgium, except such as
have been obtained and made under the Act and such as may be
required under state securities laws;
(ii) The execution, delivery and performance of the
Power of Attorney and this Agreement and the consummation of
the transactions therein and herein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over Fourcar Belgium or any
of its properties or any agreement or instrument to which
Fourcar Belgium is a party or by which Fourcar Belgium is
bound or to which any of the properties of the Selling
Stockholder is subject, or the charter, by-laws or other
organizational documents of the Selling Stockholders;
(iii) The Power of Attorney with respect to Fourcar
Belgium has been duly authorized, executed and delivered by
Fourcar Belgium and constitutes valid and legally binding
obligations of Fourcar Belgium enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and
(iv) This Agreement has been duly authorized,
executed and delivered by or on behalf of Fourcar Belgium.
The opinions contemplated by clauses (i) through (iv) above
shall be limited to the laws of Belgium.
(i) The Representative shall have received from Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representative may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(j) The Representative shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
date of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a
14
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(k) The Representative shall have received a letter, dated
such Closing Date, of Deloitte & Touche LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(l) On or prior to the date of this Agreement, the
Representative shall have received lockup letters in the form provided
by CSFBC from each of the executive officers and directors of the
Company.
The Selling Stockholders and the Company will furnish the Representative with
such conformed copies of such opinions, certificates, letters and documents as
the Representative reasonably requests. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution.(a) (a) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided further that
with respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from any preliminary prospectus the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
Prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Securities Act in connection with such purchase and
any such loss, claim, damage or liability of such purchaser results from the
fact that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the final Prospectus if the Company had previously furnished copies thereof to
such Underwriter as required under this Agreement.
(b) Each Selling Stockholder, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only with reference to
information relating to the Selling Stockholders furnished in writing by or on
behalf of the Selling Stockholders expressly for use in the Registration
Statements, any preliminary prospectus, the Prospectus or any amendments or
15
supplements thereto, it being understood and agreed that the only such
information furnished by the Selling Stockholders consists of the information
related to the Selling Stockholders contained under the caption "Principal and
Selling Stockholder" in the Prospectus; and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and the
Selling Stockholders against any losses, claims, damages or liabilities to which
the Company or the Selling Stockholders may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and the Selling Stockholders in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the fourth paragraph under the
caption "Underwriting" and the information contained in the tenth paragraph
under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such (i) settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant
16
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Stockholders
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First Closing Date or any Optional Closing Date and the aggregate number of
shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares
of Offered Securities that the Underwriters are obligated to purchase on such
Closing Date, CSFBC may make arrangements satisfactory to the Company and the
Selling Stockholders for the purchase of such Offered Securities by other
persons, including any of the Underwriters, but if no such arrangements are made
by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC, the Company and the Selling Stockholders
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Company or the Selling
Stockholders, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholders, the Company or any of their respective
17
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company and the
Selling Stockholders shall remain responsible for the expenses to be paid or
reimbursed by them pursuant to Section 5 and the respective obligations of the
Company, the Selling Stockholders, and the Underwriters pursuant to Section 7
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv), (v) or (vi) of Section
6(c), the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative at One Madison Avenue, New York, N.Y. 10010-3629,
Attention: Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at PETsMART, Inc., 00000
Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, or, if
sent to the Selling Stockholders, will be mailed, delivered or telegraphed and
confirmed to General Counsel, Carrefour SA, 0 xxxxxx Xxxxxxx Xxxxxxxx, 00000
Xxxxx, Xxxxxx, with a copy to Xxxx X. Xxxxx at Xxxxxxxx Chance Xxxxxx & Xxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000; provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representative will be binding
upon all the Underwriters. Attorneys-in-fact may act for the Selling
Stockholders in connection with such transactions, and any action under or in
respect of this Agreement taken by such Attorneys-in-fact will be binding upon
the Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and the Selling Stockholders hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
Each of the Selling Stockholders irrevocably agrees that service of
process upon such Selling Stockholder by express or certified mail to the person
and the address provided in Section 10 shall be deemed in every respect
effective service of process upon such Selling Stockholder in any such suit or
proceeding even though such service is effected outside the Borough of Manhattan
in the City of New York. The Selling Stockholders further agree to take any and
all action as may be necessary to maintain such designation and appointment of
such agent in full force and effect for a period of seven years from the date of
this Agreement.
The obligation of the Selling Stockholders in respect of any sum due to
any Underwriter shall, notwithstanding any judgment in a currency other than
United States dollars, not be discharged until the first business day, following
receipt by such Underwriter of any sum adjudged to be so due in such other
18
currency, on which (and only to the extent that) 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 Selling Stockholders
agree, as a separate obligation and notwithstanding any such judgment, to
indemnify such Underwriter against such loss. If the United States dollars so
purchased are greater than the sum originally due to such Underwriter hereunder,
such Underwriter agrees to pay to the Selling Stockholders an amount equal to
the excess of the dollars so purchased over the sum originally due to such
Underwriter hereunder.
19
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
PETsMART, INC.
By _____________________________
[Insert title]
FOURCAR BV
By _____________________________
[Insert title]
FOURCAR BELGIUM SA
By _____________________________
[Insert title]
Theforegoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By ________________________________
[Insert title]
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
SCHEDULE A
TOTAL
NUMBER OF FIRM SECURITIES NUMBER OF
TO BE SOLD BY FIRM SECURITIES
SELLING TO BE
UNDERWRITER COMPANY STOCKHOLDER PURCHASED
----------- ------- ----------- ---------
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated..........
Xxxxxxx, Sachs & Co........................
Xxxxxxx Xxxx & Company L.L.C. .............
Total
SCHEDULE B
NUMBER OF
FIRM SECURITIES
SELLING STOCKHOLDER TO BE SOLD
------------------- ----------
Fourcar BV
Fourcar Belgium SA
Total
EXHIBIT A
MATTERS TO BE COVERED IN THE OPINION OF COOLEY GODWARD LLP
The Representative shall have received an opinion, dated the
Closing Date, of Xxxxxx Godward LLP, counsel for the Company, to the effect
that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
(ii) The Offered Securities delivered on such Closing Date have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained
in the Prospectus under the caption "Description of Capital
Stock"; and the stockholders of the Company have no statutory
preemptive rights with respect to the Offered Securities;
(iii) Except as set forth in the PETsMART, Inc. Series H Preferred
Stock Purchase Agreement dated September 8, 1991, the Letter
Agreement dated June 25, 2002 by and between the Company and
Carrefour SA, and the Restated Registration and First Refusal
Rights Agreement dated October 30, 1992, by and among
PETsMART, Inc. and the parties named therein, to such
counsel's knowledge, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act, and
the Securities which were the subject of that certain Restated
Registration and First Refusal Rights Agreement, dated October
30, 1992, by and among PETsMART, Inc. and the parties named
therein, have become eligible for sale under Rule 144 under
the Securities Act;
(iv) The Company is not, and after giving effect to the offering
and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company
Act of 1940;
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of
the transactions contemplated by this Agreement in connection
with the sale of the Offered Securities, (i) except such as
have been obtained and made under the Act (ii) such consents,
approvals or filings as may be required by or with the NASD
and (iii) such as may be required under state securities laws;
(vi) The execution, delivery and performance of this Agreement and
the issuance and sale of the Offered Securities will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) the charter
or by-laws of the Company, (ii) any agreement or instrument
filed or incorporated by reference as an exhibit to the
Registration Statement, or (iii) any statute, any rule,
regulation or, to such counsel's knowledge, order of any
governmental agency or body or any court having jurisdiction
over the Company or any subsidiary of the Company or any of
their properties;
(vii) The Initial Registration Statement and the Additional
Registration Statement (if any) have become effective under
the Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of a Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or threatened by the Commission. The required filing
of the Prospectus pursuant to Rule 424(b)
of the Rules and Regulations has been made in the manner and
within the time period required by Rule 424(b). Each
Registration Statement and the Prospectus, and each amendment
or supplement thereto, as of their respective effective or
issue dates (except as to the financial statements and
schedules and other financial data and statistical data
derived therefrom as to which such counsel need express no
opinion), complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations
thereunder;
(viii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened which are of a
character required to be disclosed in the Registration
Statement which are not disclosed as required, nor to such
counsel's knowledge are there contracts or documents to which
the Company is a party which are of a character required to be
filed as exhibits to the Registration Statement which are not
filed as required;
(ix) The statements set forth under the heading "Description of
Capital Stock" in the Prospectus, insofar as such statements
purport to summarize legal matters, documents or proceedings
referred to therein, provide a fair summary of such legal
matters, documents or proceedings to the extent required under
the Act and the Rules and Regulations thereunder;
(x) This Agreement has been duly authorized, executed and
delivered by the Company; and
(xi) In addition to the matters set forth above, counsel rendering
the foregoing opinion shall also include a statement to the
effect that while such counsel have not independently verified
and accordingly are not passing upon and do not assume
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement,
nothing has come to such counsel's attention which has caused
such counsel to believe that any part of the Registration
Statement or any amendment thereto (except as to the financial
statements and schedules and other financial data and
statistical data derived therefrom as to which such counsel
need express no opinion) on the date it became effective under
the Act, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto
(except as to the financial statements and schedules and other
financial data and statistical data derived therefrom as to
which such counsel need express no opinion), as of its date or
as of such Closing Date contained an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
