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EXHIBIT U
THE XXXXXXX XXXXX GROUP, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
(International Version)
August 1, 2000
Xxxxxxx Sachs International,
ABN AMRO Rothschild,
Bayerische Hypo- und Vereinsbank Aktiengesellschaft,
BNP Paribas,
Cazenove & Co.,
Commerzbank Aktiengesellschaft,
Deutsche Bank AG London,
ING Barings Limited as agent for ING Bank N.V., London Branch,
Kleinwort Xxxxxx Limited,
MEDIOBANCA - Banca di Credito Finanziario S.p.A.,
Societe Generale,
UBS AG, acting through its business group UBS Warburg,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman Sachs International
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx.
Ladies and Gentlemen:
Certain stockholders of The Xxxxxxx Xxxxx Group, Inc., a Delaware
corporation (the "Company"), named in Schedule II hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 4,000,000 shares (the "Firm Shares") of common stock, par value
$.01 per share ("Stock"), of the Company and, at the election of the
Underwriters, up to 600,000 additional shares (the "Optional Shares") of Stock.
The Estate of Xxxxxxx Xxxxxx Xxxxxx is joining in and consenting to the sale of
Stock by Kamehameha Activities Association, and for the purposes of Sections 2,
4, 7 (to the extent provided in the U.S. Underwriting Agreement (as defined
below)),
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10, 11, 12, 13, 16 and the first paragraph following Section 16 only, as well as
those Sections of the U.S. Underwriting Agreement that are incorporated by
reference into this Agreement, all references to a Selling Stockholder shall
include Kamehameha Activities Association and the Estate of Xxxxxxx Xxxxxx
Xxxxxx, jointly as if they were one Selling Stockholder. Without limiting the
generality of the foregoing, the Estate of Xxxxxxx Xxxxxx Xxxxxx intends to and
hereby agrees to sell, pursuant to Section 2 hereof, all of its interest, if
any, in the 1,098,771 shares of Stock held of record by Kamehameha Activities
Association to be sold pursuant to this Agreement. The Firm Shares and the
Optional Shares which the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Selling
Stockholders (including the Estate of Xxxxxxx Xxxxxx Xxxxxx) are concurrently
entering into an agreement, a copy of which is attached hereto (the "U.S.
Underwriting Agreement"), providing for the sale by the Selling Stockholders of
up to a total of 40,250,000 shares of Stock (the "U.S. Shares"), including the
option to purchase additional shares thereunder, through arrangements with
certain underwriters in the United States (the "U.S. Underwriters"), for whom
Xxxxxxx, Sachs & Co., Banc of America Securities LLC, Bear, Xxxxxxx & Co. Inc.,
Chase Securities Inc., Credit Suisse First Boston Corporation, Deutsche Bank
Securities Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, X.X.
Xxxxxxx & Sons, Inc., FleetBoston Xxxxxxxxx Xxxxxxxx Inc., Xxxxxx X. Xxxxx &
Co., L.P., Xxxxxx Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxx Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated,
PaineWebber Incorporated, Prudential Securities Incorporated and Xxxxxxx Xxxxx
Barney Inc. are acting as representatives and an agreement (the "Asia/Pacific
Underwriting Agreement") providing for the sale by the Selling Shareholders
(including the Estate of Xxxxxxx Xxxxxx Xxxxxx) of up to a total of 1,150,000
shares of Stock (the "Asia/Pacific Shares"), including the option to purchase
additional shares thereunder, through arrangements with certain underwriters in
the Asia/Pacific region (the "Asia/Pacific Underwriters"), for whom Xxxxxxx
Sachs (Asia) L.L.C., BOCI Asia Limited, China Development Industrial Bank Inc.,
China International Capital Corporation (Hong Kong) Limited, Daiwa Securities SB
Capital Markets Hong Kong Limited, The Development Bank of Singapore Ltd, HSBC
Investment Bank Asia Limited, Jardine Xxxxxxx Securities Limited, Kokusai
Securities (Hong Kong) Limited, Kotak Mahindra (International) Limited, The
Nikko Merchant Bank (Singapore) Limited, Nomura International (Hong Kong)
Limited, Samsung Securities Co., Ltd and Were Stockbroking Ltd are acting as
lead managers. Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement, the U.S. Underwriting Agreement and
the Asia/Pacific Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder, the U.S. Underwriters and the
Asia/Pacific Underwriters are simultaneously entering into an Agreement among
U.S., International and Asia/Pacific Underwriting Syndicates (the "Agreement
among Syndicates") which provides, among other things, that Xxxxxxx, Sachs & Co.
shall act as global coordinator for the offering of shares of Stock, for the
transfer of shares of Stock among the three syndicates and for consultation by
the Lead Managers hereunder with Xxxxxxx, Xxxxx & Co. prior to exercising the
rights of the Underwriters under Section 7 hereof.
Three forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder, one relating to the Asia/Pacific Shares and the other
relating to the U.S. Shares. The other two forms of prospectus will be identical
to the International Prospectus except for the front cover page, the back cover
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page, the text under the caption "Underwriting" and for the addition of a
section captioned "Certain United States Tax Consequences to Non-U.S. Holders of
Common Stock" in the International and Asia/Pacific Prospectuses. Except as used
in Sections 2, 3, 4, 9 and 11 herein, and except as the context may otherwise
require, references hereinafter to the Shares shall include all of the shares of
Stock which may be sold pursuant to either this Agreement, the Asia/Pacific
Underwriting Agreement or the U.S. Underwriting Agreement, and references herein
to any prospectus whether in preliminary or final form, and whether as amended
or supplemented, shall include the U.S., the Asia/Pacific and the international
versions thereof.
In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including the related
definitions of terms, which are also used elsewhere herein) and, for purposes of
applying the same, references (whether in these precise words or their
equivalent) in the incorporated provisions to the "Underwriters" shall be to the
Underwriters hereunder, to the "Shares" shall be to the Shares hereunder as just
defined, to "this Agreement" (meaning therein the U.S. Underwriting Agreement)
shall be to this Agreement (except where this Agreement is already referred to
or as the context may otherwise require) and to the representatives of the
Underwriters or to Xxxxxxx, Sachs & Co. shall be to the addressees of this
Agreement and to Xxxxxxx Xxxxx International ("GSI"), and, in general, all such
provisions and defined terms shall be applied mutatis mutandis as if the
incorporated provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Stockholders hereby make
to the Underwriters the same respective representations, warranties and
agreements as are set forth in Section 1 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a) each of
the Selling Stockholders, severally and not jointly (except that Kamehameha
Activities Association and the Estate of Xxxxxxx Xxxxxx Xxxxxx are acting
jointly), agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from each of the
Selling Stockholders, at the purchase price per share of $97.00, the number of
Firm Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Firm Shares to be sold by each
of the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all of the Underwriters
from all of the Selling Stockholders hereunder and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Selling Stockholders agree, as and to the extent
indicated in Schedule II hereto, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Selling Stockholders, as and to the extent
indicated in Schedule II hereto, at the purchase price per share set forth in
clause (a) of this Section 2, that portion of the number of Optional Shares as
to which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum
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number of Optional Shares which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder. The Selling Stockholders, as
and to the extent indicated in Schedule II hereto, hereby grant, severally and
not jointly, to the Underwriters the right to purchase at their election up to
600,000 Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering overallotments in the sale of
the Firm Shares. Any such election to purchase Optional Shares shall be made in
proportion to the Optional Shares to be sold by each Selling Stockholder. Any
such election to purchase Optional Shares may be exercised only by written
notice from you to the Attorneys-in-Fact, given within a period of 30 calendar
days after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares are
to be delivered, as determined by you but in no event earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless you and the
Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus and in the forms of Agreement among
Underwriters (International Version) and Selling Agreement (International
Version), which have been previously submitted to the Company by you. Each
Underwriter hereby makes to and with the Company and the Selling Stockholders
the representations and agreements of such Underwriter as a member of the
selling group contained in Sections 3(f) and 3(g) of the form of Selling
Agreement (International Version).
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as GSI may request upon at least forty-eight hours' prior notice to the
Selling Stockholders, shall be delivered by or on behalf of the Selling
Stockholders to GSI, including, at the option of GSI, through the facilities of
The Depository Trust Company ("DTC"), for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account specified
to GSI by the Custodian at least forty-eight hours in advance. Kamehameha
Activities Association and the Estate of Xxxxxxx Xxxxxx Xxxxxx agree that
Kamehameha Activities Association will receive payment for the Shares to be sold
jointly by them. The Selling Stockholders will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or at the office of DTC or its designated custodian, as the case may
be (the "Designated Office"). The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on
August 7, 2000 or on such other time and date as GSI and the Selling
Stockholders may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by GSI in the
written notice given by GSI of the Underwriters' election to purchase such
Optional Shares, or such other time and date as GSI and the Selling Stockholders
may agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "First Time of Delivery", such time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
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(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 of the U.S. Underwriting
Agreement, including the cross-receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 7(p) of the U.S.
Underwriting Agreement, will be delivered at the offices of Xxxxxxxx & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and the
Shares will be delivered at the Designated Office, all at each Time of Delivery.
A meeting will be held at the Closing Location at 2:30 p.m., New York City time,
on the second New York Business Day next preceding each Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company hereby makes with the Underwriters the same agreements
as are set forth in Section 5 of the U.S. Underwriting Agreement, which Section
is incorporated herein by this reference.
6. The Company, each of the Selling Stockholders and the Underwriters
hereby agree with respect to certain expenses on the same terms as are set forth
in Section 6 of the U.S. Underwriting Agreement, which Section is incorporated
herein by this reference.
7. Subject to the provisions of the Agreement among Syndicates, the
obligations of the Underwriters hereunder shall be subject, in their discretion,
at each Time of Delivery to the condition that all representations and
warranties and other statements of the Company and the Selling Stockholders
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholders shall have performed all of their
respective obligations hereunder theretofore to be performed, and additional
conditions identical to those set forth in Section 7 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through GSI expressly for use therein.
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(b) Each Selling Stockholder, severally and not jointly, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use therein;
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that such
Selling Stockholder shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through GSI expressly
for use therein; provided, further, that the liability of a Selling Stockholder
pursuant to this subsection (b) shall not exceed the amount of net proceeds
received by such Selling Stockholder from the sale of its Shares pursuant to
this Agreement. For purposes of this Section 8(b), written information furnished
to the Company by Kamehameha Activities Association expressly for use in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto shall be deemed to include any written
information furnished to the Company by the Estate of Xxxxxxx Xxxxxx Xxxxxx for
use in any of the foregoing.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through GSI expressly for use
therein; and will reimburse the Company and each Selling Stockholder for any
legal or other expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any such action or
claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect
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thereof is to be made against an indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (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 shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought under this
Section 8 (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders taken
together on the one hand and the Underwriters on the other from the offering of
the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Selling Stockholders on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders taken together on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus, and for purposes of the allocation of benefits
under this sentence the Company shall be deemed to have received all of the
benefits received by the Selling Stockholders. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders on the one hand
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or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, each of the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (e) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and no Selling Stockholder shall be
required to contribute an amount that, together with any other payments made
pursuant to this Section 8, exceeds the net proceeds received by such Selling
Stockholder from the sale of its Shares pursuant to this Agreement. 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 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company or any Selling Stockholder within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Stockholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholders shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this
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Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholders shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company
and the Selling Stockholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
Anything herein to the contrary notwithstanding, the indemnity
agreements of the Company in subsection (a) of Section 8 hereof, the
representations and warranties of the Company in subsections (a)(ii), (a) (iii)
and (a)(iv) of Section 1 of the U.S. Underwriting Agreement incorporated by
reference herein and any representation or warranty as to the accuracy of the
Registration Statement or the Prospectus contained in any certificate furnished
by the Company pursuant to Section 7 hereof, insofar as they may constitute a
basis for indemnification for liabilities (other than payment by the Company of
expenses incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Act, shall not extend to the extent of any
interest therein of a
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controlling person of an Underwriter who is a director or officer who signed the
Registration Statement or controlling person of the Company when the
Registration Statement has become effective, except in each case to the extent
that an interest of such character shall have been determined by a court of
appropriate jurisdiction as not against public policy as expressed in the Act.
Unless in the opinion of counsel for the Company the matter has been settled by
controlling precedent, the Company will, if a claim for such indemnification is
asserted, submit to a court of appropriate jurisdiction the question whether
such interest is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
none of the Company or the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Section 6 and Section 8
hereof; but, if for any other reason any Shares are not delivered by or on
behalf of the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through GSI for all out-of-pocket expenses approved
in writing by GSI, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and the Selling
Stockholders shall then be under no further liability to any Underwriter in
respect of the Shares not so delivered except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by GSI on behalf of you as the representatives of the
Underwriters; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwriters in care of GSI, Peterborough Court,
000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Equity Capital Markets,
Telex No. 94012165, facsimile transmission No. (0207) 774- 1550; if to any
Selling Stockholder shall be delivered or sent by mail, telex or facsimile
transmission to such Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by GSI upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, any Selling Stockholder or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under
-10-
11
or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters (International
Version), the form of which shall be furnished to the Company and the Selling
Stockholders for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
-11-
12
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
The Xxxxxxx Xxxxx Group, Inc.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
-12-
13
Sumitomo Bank Capital Markets, Inc.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: President
Kamehameha Activities Association
By: /s/ Xxxxxxx X.X. Chin
----------------------------------
Name: Xxxxxxx X.X. Xxxx
Title: President
The Trustees of the Estate of Xxxxxxx Xxxxxx
Xxxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------
/s/ Xxxxxxxxx X. Xxx
-----------------------------------
/s/ Xxxxx X. Xxxx
-----------------------------------
-13-
14
*
____________________________________
Xxxxxxx X. Xxxxxx
*
____________________________________
Xxxxxx X. Xxxxx
*
____________________________________
Xxxxx X. Xxxxxxxxxxx
*
____________________________________
Xxxxx X. Xxxx
*
____________________________________
Xxx X. Xxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxxxx
*
____________________________________
Xxxxx X. Blankfein
*
____________________________________
Xxxxx X. Blood
*
____________________________________
The Xxxxxx X. Xxxxxxx Family
Limited Partnership
*
____________________________________
Xxxxx X. Xxxxxx, Xx.
*
____________________________________
Xxxxxxx X. Xxxxxx
*
____________________________________
Xxxxxxxx X. Xxxxxxxxx
-14-
15
*
____________________________________
Xxxxxxxxxxx X. Xxxxxxx
*
____________________________________
Xxxx Xxx Xxxxxx
*
____________________________________
Anahue Trust
*
____________________________________
Xxxxxxxxx Xxxxxxxx
*
____________________________________
Xxxx X. Xxxx
*
____________________________________
Xxxxxxxxxxx X. Xxxx
*
____________________________________
Xxxxxx X. Xxxxxxxx
*
____________________________________
Xxxxx Xxxxxxx
*
____________________________________
Xxx X. Xxxxxxx
*
____________________________________
Xxxxx X. Xxxxxxx, Xx.
*
____________________________________
Xxxxxxxx X. Xxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxx
*
____________________________________
Xxxxx Xxxxxx
-15-
16
*
____________________________________
Xxxxx X. Xxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxx, Xx.
*
____________________________________
Xxxxxxxxx X. Xxxxxxxx
*
____________________________________
Xxxx X. Xxxxxxx
*
____________________________________
C. Xxxxxx Xxxxxxx
*
____________________________________
Xxxxx X. Xxxxx
*
____________________________________
Xxxx X. Efron
*
____________________________________
Pieter Maarten Xxxxxxxx
*
____________________________________
Xxxxxx X. Xxxx
*
____________________________________
Xxxxx X. Xxxx
*
____________________________________
Xxxxxx X. Xxxxx
*
____________________________________
Xxxxxxxxxxx X. Xxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxxx
-16-
17
*
____________________________________
Xxxxxx X. Xxxxx
*
____________________________________
Xxxxx X. Xxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxxxxx
*
____________________________________
Xxxxx X. Xxxxxxxxx
*
____________________________________
Xxx X. Xxxxxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxx
*
____________________________________
Xxxxxxxx X. Xxxxx
*
____________________________________
Xxxxxx X. Xxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxx
*
____________________________________
Xxxxxxx X. Xxxxx
*
____________________________________
Vyrona Trust
*
____________________________________
Xxxxx X. Xxxxxx
-17-
18
*
____________________________________
Xxxx X. Xxxxx
*
____________________________________
Xxxxxxxxx X. Xxxxxxx-Xxxxxx
*
____________________________________
X. Xxxxx Xxxx
*
____________________________________
Xxxxxxx X. Xxxxxx
*
____________________________________
Xxxx Xxxxx
*
____________________________________
Xxxxxx X. Xxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxxxx
*
____________________________________
Xxxxxx Xxxxxxx III
*
____________________________________
Xxxxxx X. Xxxxxxxx
*
____________________________________
Xxxxx X. Xxxxxx
*
____________________________________
Xxxxxx X. Xxxx
*
____________________________________
Xxxxx X. Xxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxxxx
-18-
19
*
____________________________________
Xxxxxxxx X. Xxxxxx
*
____________________________________
Xxxxxxxx X. Xxxxxxx
*
____________________________________
Xxxxx X. Xxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxxxx
*
____________________________________
Xxxxxxx X. L'Heureux
*
____________________________________
Xxxxxxxx X. Xxxxxx
*
____________________________________
Xxxxxx Xxxxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxxxxxxx
*
____________________________________
Xxxxx Xxxxx
*
____________________________________
Xxxxxxxx X. Xxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxx
*
____________________________________
Xxxxxx X. Xxxxx
*
____________________________________
Eff X. Xxxxxx
-19-
20
*
____________________________________
Xxxx X. XxXxxxx
*
____________________________________
E. Xxxxx Xxxx
*
____________________________________
T. Xxxxxx Xxxxxx
*
____________________________________
Xxxx X. Xxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxx
*
____________________________________
The Xxxxxxx Xxxxxx and
Xxxxxxx Xxxx-Xxxxxx Trust
*
____________________________________
Xxxxxx X. Xxxxxx
*
____________________________________
Xxxxxx X. Xxxxxx III
*
____________________________________
Xxxxxxx X. Xxxxxxx
*
____________________________________
Xxxxxxx Xxxxxxxx-Xxxxxxx
*
____________________________________
Xxxxxx X. Mule
*
____________________________________
Xxxxxx X. Xxxxxx, Xx.
-20-
21
*
____________________________________
Avi X. Xxxx
*
____________________________________
Xxxxxx X. Xxxxxxx
*
____________________________________
Xxxx X. Xxxxxx
*
____________________________________
Xxxxx Xxxxxxxx
*
____________________________________
Xxxxxxx X. Xxxx Xxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxxxx
*
____________________________________
Majix Limited
*
____________________________________
Xxxxxxx X. X'Xxxxx
*
____________________________________
Xxxxxxx X. X'Xxxxx
*
____________________________________
Xxxxxx X. Xxxxxxx, Xx.
*
____________________________________
Xxxxxx X. X'Xxxx
*
____________________________________
Xxxx X. Xxxxxxx
*
____________________________________
Xxxxxx X. Xxxx
-21-
22
*
____________________________________
Xxxxxxx X. Palm
*
____________________________________
Xxxxx X. Xxxxxx
*
____________________________________
Xxxx X. Xxxxxx
*
____________________________________
Xxxxxxx X. Price
*
____________________________________
Xxxxx X. Xxxxxx
*
____________________________________
Xxxxxxx X. Xxxxx
*
____________________________________
Xxxxxxx X. Xxxxx
*
____________________________________
Xxxxxx X. Xxxxx
*
____________________________________
Xxxxxx X. Xxxxxxx III
*
____________________________________
Xxxxx X. Xxxxx, Xx.
*
____________________________________
Xxxxx X. Xxxxxxxxx
*
____________________________________
J. Xxxxx Xxxxxx
*
____________________________________
Xxxxxxxx Xxxxx
-22-
23
*
____________________________________
Xxxxx Trust
*
____________________________________
Xxxxx X. Xxxxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxx
*
____________________________________
Xxxx Xxxx Xxxx
*
____________________________________
Xxxxxxx X. Xxxx
*
____________________________________
Xxxxxx Xxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxx
*
____________________________________
Xxxxxxxx X. Xxxxxx
*
____________________________________
Xxxxx Xxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxxx
*
____________________________________
Xxxxxxx Xxxxxxxx
-23-
24
*
____________________________________
Xxxx X. Xxxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxx, Xx.
*
____________________________________
Xxxxxx X. Xxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxxx
*
____________________________________
Xxxxxxx X. Xxxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxxxxxx
*
____________________________________
Xxxxxxx Xxxxx
*
____________________________________
Xxxxxxxxx X. Xxxx-Xxxxx
*
____________________________________
Xxxx X Xxxxx
*
____________________________________
Xxxxxxxx X. Xxxxx
*
____________________________________
Xxxx X. Xxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxx
*
____________________________________
Esta X. Xxxxxxx
-24-
25
*
____________________________________
Xxxxxxxx X. Xxxxx
*
____________________________________
Xxxxxxx X. Xxxxx
*
____________________________________
HJS2 Limited
*
____________________________________
Melalula Limited
*
____________________________________
Xxxx X. Xxxxx
*
____________________________________
Xxxx X. Xxxxxx
*
____________________________________
Xxxxxx X. Xxxxxx
*
____________________________________
Xxxx X. Xxxxxxxxxx
*
____________________________________
Xxxxxx X. Xxxxxxx
*
____________________________________
Xxxx X. Xxxxxxxx III
*
____________________________________
Xxxxx X. Xxxxx
*
____________________________________
Xxxxxx X. Xxxxx III
*
____________________________________
Xxxxxxx X. Xxxxxxxx
-25-
26
*
____________________________________
M.B. Xxxxxxxx Pty, Limited
*
____________________________________
Xxxx X. Xxxxx
*
____________________________________
Xxx X. Xxxxx
*
____________________________________
Xxxxxx X. Xxxxxx XX
*
____________________________________
Xxxxxx X. Xxxxxx III
*
____________________________________
Xxxxxxx X. Xxxx
*
____________________________________
Xxxxxx X. Xxxxxx, Xx.
*
____________________________________
Xxxxxxxx X. Xxxxxx III
*
____________________________________
Xxx Xxxxxxxxxx
*
____________________________________
Xxxxxx X. Xxxxx
*
____________________________________
Xxxxxxx X. Xxxxxx
*
____________________________________
Xxxxx X. Xxxxxxxxxxxx
*
____________________________________
Xxxxx Xxx
-26-
27
*
____________________________________
Xxxxxxx X. Xxxxxx
*
____________________________________
Xxxxxx X. Xxxxxx
*
____________________________________
Xxxxx Xxxxxx
*
____________________________________
Xxxx X. Xxxxxx
* By: /s/ Xxxx X. Xxxxx
-----------------------------
Xxxx X. Xxxxx
Attorney-in-Fact
-27-
28
Accepted as of the date hereof:
Xxxxxxx Xxxxx International
ABN AMRO Rothschild
Bayerische Hypo- und Vereinsbank Aktiengesellschaft
BNP Paribas
Cazenove & Co.
Commerzbank Aktiengesellschaft
Deutsche Bank AG London
ING Barings Limited as agent for ING Bank N.V., London Branch
Kleinwort Xxxxxx Limited
MEDIOBANCA - Banca di Credito Finanziario S.p.A.
Societe Generale
UBS AG, acting through its business group UBS Warburg
By: Xxxxxxx Sachs International
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------
(Attorney-in-Fact)
On behalf of each of the Underwriters
