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Exhibit 1.1
XXXX XXXXX XXXXXX CORPORATION
Class A Common Stock
(par value $.01 per share)
Underwriting Agreement
(U.S. Version)
_________, 1997
Xxxxxxx, Sachs & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
As representatives of the several
Underwriters named in Schedule 1 hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxx Xxxxx Xxxxxx Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of ___________ shares and, at the election of the Underwriters, up to _________
additional shares of Class A Common Stock, par value $.01 per share (the
"Stock"), of the Company, and the stockholders of the Company named in Schedule
II hereto (the "Selling Stockholders") propose, subject to the terms and
conditions stated herein, to sell to the Underwriters an aggregate of
____________ shares and, at the election of the Underwriters, up to _________
additional shares of Stock. The aggregate of _________ shares to be sold by the
Company and the Selling Stockholders is herein called the "Firm Shares" and the
aggregate of _________ additional shares to be sold by the Company and certain
of the Selling Stockholders is herein called the "Optional Shares." The Firm
Shares and the Optional Shares that 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 Company and the
Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Stockholders of up to a total of ___________ shares of Stock
(the "International Shares"), including the overallotment option thereunder,
through arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom Xxxxxxx Sachs International, Xxxxxxx
Xxxxx International and Xxxxxx Xxxxxxx & Co. International Limited are acting as
lead managers. Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the International Underwriting
Agreement are hereby expressly made conditional on one another. The Underwriters
hereunder and the International Underwriters are simultaneously entering into an
Agreement between U.S. and
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International Underwriting Syndicates (the "Agreement between Syndicates") which
provides, among other things, for the transfer of shares of Stock between the
two syndicates. Two 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 and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages. Except as used in Sections 2, 3, 4, 5, 11 and 13 herein, and
except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
Prior to the Reorganization (as defined below), the Company conducted
its operations through three primary operating partnerships, Xxxx Xxxxx Lauren
Enterprises, L.P. ("Enterprises"), Xxxx Xxxxx Xxxxxx, L.P. ("Polo LP") and The
Xxxxx Lauren Womenswear Company L.P. ("Womenswear LP" and, together with
Enterprises and Polo LP, the "Operating Partnerships") and certain other
entities. In anticipation of the sale of the Shares, (i) in May 1997, a
corporation wholly owned by Xxxxx Xxxxxx through which he held certain interests
in Enterprises and Polo LP merged into the Company in exchange for shares of
Class B Common Stock, $.01 par value per share (the "Class B Common Stock") of
the Company and (ii) the Company and the other partners of the Operating
Partnerships entered into a Subscription Agreement, dated as of April 6, 1997
(the "Reorganization Agreement"), pursuant to which prior to the date hereof the
partners of the Operating Partnerships other than the Company contributed their
interests in the Operating Partnerships to the Company in exchange for shares of
Class B Common Stock or Class C Common Stock, $.01 par value per share, of the
Company, as the case may be, and promissory notes (the "Reorganization"). In
connection with the Reorganization, the parties to the Reorganization Agreement
entered into a Stockholders Agreement, dated as of June __, 1997 (the
"Stockholders Agreement") and the Registration Rights Agreement, dated as of
June __, 1997 (the "Registration Rights Agreement").
Effective April 3, 1997, the Company entered into purchase agreements
with certain third parties (collectively, the "Retail Acquisition Agreement") to
acquire the 50% interest in Polo Retail Corporation and minority interests in
related entities that the Company did not previously own, which acquisition (the
"PRC Acquisition") will be consummated at the First Time of Delivery (as defined
herein).
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-24733)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document
with respect to the Initial Registration Statement has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement,
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if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 6(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective or such
part of the Rule 462(b) Registration Statement, if any, which became or
hereafter becomes effective, each as amended at the time such part of
the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the
answers therein to Items 7 and 11(l) of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein
to Items 7 and 11(l) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, except for
draws or paydowns under the Company's New Credit Facility (as defined
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in the Prospectus) and required payments under the Subordinated Notes
(as defined in the Prospectus) and payments required in connection with
the Reorganization Notes (as defined in the Prospectus) or any material
adverse change, or any development related to the Company involving a
prospective material adverse change, in or affecting the business
affairs, financial condition, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated by the Prospectus;
(v) The Company and its subsidiaries listed on Schedule IV hereto
(the "Principal Subsidiaries") have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries or such as do not
and would not, individually or in the aggregate, have a material
adverse effect on the business, prospects, operations, financial
condition, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect");
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries or such as do not and
would not, individually or in the aggregate, have a Material Adverse
Effect; and other than the Principal Subsidiaries, there are no
subsidiaries of the Company which would constitute significant
subsidiaries as defined in Rule 1-02(w) of Regulation S-X;
(vi) The Company has been duly incorporated and is validly
existing as a 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, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, except where the
failure to be in such good standing would not have a Material Adverse
Effect;
(vii) The Company has [or will have as of the First Time of
Delivery] an authorized capitalization as set forth in the Prospectus,
and all of the issued and outstanding shares of capital stock of the
Company have been duly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the description
of the capital stock contained in the Prospectus; the Reorganization
has been duly authorized and consummated in accordance with applicable
law; and all of the issued and outstanding shares of capital stock of
each subsidiary of the Company have been duly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares and except as set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances or
claims or as may have been pledged to the lenders under certain of the
Company's credit agreements;
(viii) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder and to the International Underwriters
under the International Underwriting
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Agreement have been duly authorized and, when issued and delivered
against payment therefor as provided herein, will be validly issued and
fully paid and non-assessable and will conform in all material respects
to the description of the Stock contained in the Prospectus;
(ix) The issue and sale of the Shares to be sold by the Company
hereunder and under the International Underwriting Agreement, the
authorization, execution and delivery of the Reorganization Agreement,
the Retail Acquisition Agreement, the Registration Rights Agreement and
the Stockholders Agreement and the compliance by the Company with all
of the provisions of this Agreement, the International Underwriting
Agreement, the Reorganization Agreement, the Retail Acquisition
Agreement, the Registration Rights Agreement and the Stockholders
Agreement and the consummation of the transactions herein and therein
contemplated including the Reorganization (i) will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject except any such
conflict, breach, violation or default which has been consented to or
waived by the appropriate counterparty thereto, prior to the execution
and delivery of this Agreement, (ii) will not result in any violation
of the provisions of the Certificate of Incorporation or By-laws of the
Company, and (iii) will not result in any violation of any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties, except for conflicts, breaches, violations or
defaults (other than any relating to the Certificate of Incorporation
or By-laws of the Company) that would not, individually or in the
aggregate, have a Material Adverse Effect or, individually or in the
aggregate, impair the Company's ability to consummate the transactions
herein or therein contemplated; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, the International Underwriting
Agreement, the Reorganization Agreement, the Retail Acquisition
Agreement, the Registration Rights Agreement and the Stockholders
Agreement and by the Reorganization, except the registration under the
Act of the Shares and of any shares as contemplated by the Registration
Rights Agreement, the registration under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters and as contemplated by the Registration
Rights Agreement;
(x) Neither the Company nor any of its Principal Subsidiaries is
in violation of its respective Certificate of Incorporation or By-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound which default would have a Material Adverse Effect;
(xi) The Company has all requisite corporate power and authority
to enter into this Agreement, the International Underwriting Agreement,
the Reorganization Agreement, the
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Retail Acquisition Agreement, the Registration Rights Agreement and the
Stockholders Agreement; and each of this Agreement, the International
Underwriting Agreement, the Reorganization Agreement, the Retail
Acquisition Agreement, the Registration Rights Agreement and the
Stockholders Agreement have been duly authorized by the Company and
have been validly executed and delivered by the Company and each of the
Reorganization Agreement, Retail Acquisition Agreement, the
Registration Rights Agreement and the Stockholders Agreement
constitutes a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms;
(xii) The statements set forth in the Prospectus under the
caption "Description of Capital Stock," insofar as they purport to
constitute a summary of the terms of the Stock, and under the captions
"Underwriting," "Reorganization and Related Transactions" and "Certain
Relationships and Related Transactions," insofar as they purport to
describe the provisions of the laws, documents and transactions
referred to therein for purposes of complying with the requirements of
the Act and the rules and regulations thereunder are accurate and fair
in all material respects;
(xiii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xiv) The financial statements included in the Registration
Statement and the Prospectus, together with the related schedules and
notes, present fairly the financial position of the Company and its
subsidiaries on a consolidated basis as of the dates indicated and the
results of operations, stockholders' equity and cash flows of the
Company and its subsidiaries on a combined basis for the periods
indicated. Such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial data included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
in all material respects with that of the audited financial statements
included in the Registration Statement;
(xv) The pro forma balance sheet and pro forma statement of
income and the related notes thereto set forth in the Registration
Statement and the Prospectus with respect to the Company have been
prepared in accordance with the applicable requirements of Rule 11-02
of Regulation S-X promulgated by the Commission, have been compiled on
the pro forma basis described therein, and in the opinion of the
Company, the assumptions used in the preparation thereof were
reasonable at the time made and the adjustments used therein are based
on good faith estimates and assumptions believed by the Company to be
reasonable at the time made;
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(xvi) There are no contracts or documents of a character required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not so
described or filed;
(xvii) Except as disclosed in the Prospectus, the Company and
its subsidiaries own or possess all foreign and domestic governmental
licenses, permits, certificates, consents, orders, approvals and other
authorizations (collectively, "Governmental Licenses") necessary to own
or lease, as the case may be, and to operate their properties and to
carry on their business as presently conducted, except to the extent
that the failure to own or possess such Governmental Licenses would
not, individually or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except to the extent that the failure to have such Governmental
Licenses would not, individually or in the aggregate, have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to revocation or
modification of any such Governmental Licenses, except to the extent
that individually or in the aggregate, if subject to an unfavorable
decision, ruling or finding, such proceedings would not have a Material
Adverse Effect;
(xviii) Each of the Company and its subsidiaries owns or has
rights to adequate foreign and domestic trademarks, service marks,
trade names, inventions, copyrights and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (collectively, the
"Intellectual Property") necessary to carry on their respective
businesses as of the date hereof, and neither the Company nor any of
its subsidiaries is aware that it would interfere with, infringe upon
or otherwise come into conflict with any Intellectual Property rights
of third parties as a result of the operation of the business of the
Company or any subsidiary as of the date hereof that, individually or
in the aggregate, if subject to an unfavorable decision, ruling or
finding would have a Material Adverse Effect;
(xix) Except as disclosed in the Prospectus, there are no holders
of securities (debt or equity) of the Company or any of its
subsidiaries, or holders of rights (including, without limitation,
preemptive rights), warrants or options to obtain securities of the
Company or any of its subsidiaries, who have the right to request the
Company or any of its subsidiaries to register securities held by them
under the Act;
(xx) Except as disclosed in the Prospectus, there are no labor
disputes between the Company or any of its subsidiaries, on the one
hand, and the employees of the Company or any of its subsidiaries, on
the other hand that could reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries;
(xxi) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xxii) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes; and
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(xxiii) Deloitte & Touche LLP and Mahoney, Cohen, Rashba &
Pokart, CPA, PC, each who have certified certain financial statements
of the Company and its subsidiaries, are each independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder.
(b) Each of the Selling Stockholders severally represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) With respect to the Xxxxx Xxxxxx 1997 Charitable Remainder
Unitrust, such Selling Stockholder has been duly created, is validly
existing as a trust under the laws of the jurisdiction of its
organization and has the power and authority to own and sell its
property and to conduct its activities;
(ii) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Stockholder of this
Agreement, the International Underwriting Agreement, the Stockholders
Agreement and the Registration Rights Agreement and, in the case of GS
Capital Partners, L.P., GS Capital Partners PRL Holding I, L.P., GS
Capital Partners PRL Xxxxxxx XX, X.X., Xxxxx Xxxxxx Xxxx 0000, L.P.,
Stone Street 1994 Subsidiary Corp. and Xxxxxx Xxxxxx Xxxx 0000, X.X.
(collectively, the "GS Selling Stockholders"), the Put Agreement to be
entered into among the GS Selling Stockholders and the representatives
of the Underwriters (the "Put Agreement"), and for the sale and
delivery of the Shares to be sold by such Selling Stockholder hereunder
and under the International Underwriting Agreement, have been obtained;
such Selling Stockholder has full right, power and authority to enter
into this Agreement, the International Underwriting Agreement, the
Stockholders Agreement and the Registration Rights Agreement and, in
the case of the GS Selling Stockholders, the Put Agreement, and to
sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder and thereunder; and such Selling
Stockholder has executed and delivered this Agreement, the
International Underwriting Agreement, the Stockholders Agreement and
the Registration Rights Agreement and, in the case of the GS Selling
Stockholders, the Put Agreement;
(iii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement and the compliance by such Selling Stockholder with all of
the provisions of this Agreement, the International Underwriting
Agreement, the Stockholders Agreement and the Registration Rights
Agreement and, in the case of the GS Selling Stockholders, the Put
Agreement and the consummation of the transactions herein and therein
contemplated (i) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the property or assets of such Selling Stockholder is
subject, except any such conflict, breach, violation or default which
has been consented to or waived, by the appropriate counterparty
thereto, prior to the execution and delivery hereof, (ii) will not
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of such Selling Stockholder if such Selling
Stockholder is a corporation or the Partnership Agreement of such
Selling Stockholder if such Selling Stockholder is a partnership and
(iii) will not result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
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(iv) Such Selling Stockholder has, or immediately prior to each
Time of Delivery (as defined in Section 5 hereof) that such Selling
Stockholder is required to sell Shares pursuant to this Agreement and
the International Underwriting Agreement such Selling Stockholder will
have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement, free and clear of all liens, encumbrances or claims; and,
upon delivery of such Shares hereunder and thereunder and payment
therefor pursuant hereto and thereto, good and valid title to such
Shares, free and clear of all liens, encumbrances or claims, will pass
to the several Underwriters or the International Underwriters, as the
case may be;
(v) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, such Selling Stockholder will not offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder or under the
International Underwriting Agreement, Stock or any securities of the
Company that are substantially similar to the Stock, including but not
limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any substantially
similar securities (other than pursuant to employee or director stock
option plans existing on the date of this Agreement), without the prior
written consent of Xxxxxxx, Xxxxx & Co., as representative of the
Underwriters;
(vi) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vii) To the extent that any statements or omissions made in the
Registration Statement, and Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and
any further amendments or supplements to the Registration Statement and
the Prospectus, when they become effective or are filed with the
Commission, as the case may be, will not 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 not
misleading;
(viii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof); and
(ix) The Shares represented by the certificates held by each
Selling Stockholder are subject to the interests of the Underwriters
hereunder; the obligations of the Selling Stockholder hereunder shall
not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee
or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if any individual
Selling Stockholder or any such
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executor or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should
occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the
Selling Stockholder in accordance with the terms and conditions of this
Agreement and of the International Underwriting Agreement.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders agree, 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 Company and each of the Selling
Stockholders, at a purchase price per share of $__________, 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 the Company and
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 the Company and 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 Company and certain of the
Selling Stockholders agree, 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 Company and such Selling Stockholders, 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 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. For purposes of facilitating
the sale of Shares by the GS Selling Stockholders pursuant to clause (a) of this
Section 2 and subject to the terms and conditions herein set forth, each of you
agrees, severally and not jointly, to purchase from each of the GS Selling
Stockholders, at the purchase price per share set forth in clause (a) of this
Section 2, the number of Firm Shares of each of the GS Selling Stockholders as
set forth opposite your respective names in Schedule III hereto and in Schedule
III to the International Underwriting Agreement (the "Note Shares") at the Note
Time of Delivery (as defined in Section 5 hereof) against payment by each of you
of the purchase price therefor by delivery of a promissory note (each, a "Note"
and collectively, the "Notes") in the form previously agreed by the GS Selling
Stockholders and each of you. The number of shares each respective Underwriter
is severally obligated to purchase, as set forth in Schedule I hereto, shall not
be affected by the foregoing arrangements.
The Company and certain of 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 _________
Optional Shares, at the purchase price per share set forth in the paragraph
above, for the sole purpose of covering over-allotments in the sale of the Firm
Shares. [Any such election to purchase Optional Shares shall be made in
proportion to the maximum number of Optional Shares to be sold by the Company
and such Selling Stockholders as set forth in Schedule II hereto.] Any such
election to purchase Optional Shares may be exercised only by written notice
from you to the Company and such Selling Stockholders, given within a period of
30 calendar days
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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 5 hereof) or, unless you and the Company
and such Selling Stockholders otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
3. The Company hereby confirms its engagement of Xxxxxx Xxxxxxx & Co.
Incorporated as, and Xxxxxx Xxxxxxx & Co. Incorporated hereby confirms its
agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Section 2(o) of Rule 2720 of the National
Association of Securities Dealers, Inc. (the "NASD") with respect to the
offering and sale of the Shares. Xxxxxx Xxxxxxx & Co. Incorporated, in its
capacity as qualified independent underwriter and not otherwise, is referred to
herein as the "QIU".
4. Upon the authorization by you 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.
5. (a) The Shares to be purchased by each of you hereunder in exchange
for the Notes, in definitive form, and in such authorized denominations and
registered in such names as Xxxxxxx, Sachs & Co. has requested by notice to the
Company and the GS Selling Stockholders, shall be delivered by or on behalf of
the GS Selling Stockholders to Xxxxxxx, Xxxxx & Co. for your accounts against
delivery by or on your behalf of the Notes. The Shares to be purchased by each
Underwriter hereunder (other than Shares purchased in exchange for the Notes) in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholders, shall be delivered by or on
behalf of the Company and the Selling Stockholders to Xxxxxxx, Xxxxx & Co.
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 or certified or official bank check or
checks, payable to the order of the Company or such Selling Stockholder, as the
case may be, in immediately available (same-day) funds. The Company 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 DTC or its designated custodian (the
"Designated Office"). The time and date of such delivery and payment shall be
(i) with respect to the Firm Shares to be purchased in exchange for the Notes,
immediately following the execution of this Agreement and the satisfaction of
the conditions set forth in Section 8 hereof, (ii) with respect to all other
Firm Shares, 9:30 a.m., New York City time, on June __, 1997 or such other time
and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing, and
(iii) with respect to the Optional Shares, 9:30 a.m., New York City time, on the
date specified by Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx,
Xxxxx & Co. of the Underwriters' election to purchase such Optional Shares, or
such other time and date as Xxxxxxx, Sachs & Co., the Company and the Selling
Stockholders may agree upon in writing. Such time and date for delivery of the
Firm Shares to be purchased in exchange for the Notes is herein called the "Note
Time of Delivery," such time and date for delivery of all other 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 8 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(k) hereof, will be delivered at the offices
of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, XX
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 __ p.m., New York City time, on the 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 5, "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.
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last date on which
the Underwriters may be required to deliver a Prospectus which shall be
disapproved by you promptly after reasonable notice thereof, except for
any such amendment or supplement that in the reasonable written opinion
of counsel to the Company is required by applicable law; to advise you,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish you with copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or prospectus, of the suspension
of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to take any other action which would subject it to
taxation, other than as to matters and transactions relating to the
offer and sale of the Shares in each jurisdiction in which the Shares
have been qualified as provided above;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request,
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and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred 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 in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the Act, to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder and under the International
Underwriting Agreement, any Stock or any securities of the Company that
are substantially similar to the Stock, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee or director stock option
plans existing on the date of this Agreement), or to file any
registration statement with the Commission under the Act relating to
any such securities, without the prior written consent of Xxxxxxx,
Sachs & Co., as representative of the Underwriters;
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to its stockholders as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
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information that is available without undue expense concerning the
business and financial condition of the Company as you may from time to
time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement and the International Underwriting
Agreement in the manner specified in the Prospectus under the caption
"Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(j) To file with the Commission such reports on Form SR as may
be required by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
7. The Company and each of the Selling Stockholders covenant and agree
with one another and with the several Underwriters that (a) the Company will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the
International Underwriting Agreement, the Agreement between Syndicates, the Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
6(b) hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey and all reasonable fees and expenses of counsel in connection
with the sale of Shares to the Company's officers, employees, customers and
suppliers and other persons associated with the Company or affiliated with any
director, officer or employee of the Company; (iv) all fees and expenses in
connection with listing the Shares on the Exchange; (v) the filing fees incident
to, and the reasonable fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the NASD of the terms of the
sale of the Shares on behalf of or disbursements by Xxxxxx Xxxxxxx & Co.
Incorporated in its capacity as "qualified independent underwriter"; (vi) the
cost of preparing stock certificates; (vii) the cost and charges of any transfer
agent or registrar; (viii) all reasonable fees, disbursements and expenses of
counsel for the Selling Stockholders; and (ix) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; and (b) each Selling Stockholder will
pay or cause to be paid all costs and expenses incident to the performance of
each Selling Stockholder's obligations hereunder which are not otherwise
specifically provided for in this Section, including (i) all
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expenses and taxes incident to the sale and delivery of the Shares to be sold by
such Selling Stockholder to the Underwriters hereunder including, but not
limited to, all such expenses and taxes relating to the delivery to the
Underwriters of Shares purchased in exchange for the Notes, except as provided
below; and (ii) all other costs and expenses incident to the performance of its
obligations or the Selling Stockholder obligations hereunder which are not
otherwise specifically provided for in this Section 7. In connection with clause
(b) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay New York State
stock transfer tax, and each Selling Stockholder agrees to reimburse Xxxxxxx,
Xxxxx & Co. for associated carrying costs if such tax payment is not rebated on
the day of payment and for any portion of such tax payment not rebated. It is
understood, however, that the Company shall bear, and the Selling Stockholder
shall not be required to pay or to reimburse the Company for, the cost of any
other matters not directly relating to the sale and purchase of the Shares
pursuant to this Agreement, and that, except as provided in this Section, and
Sections 9, 10 and 13 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees and disbursements of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and, in the case of the Note Time of Delivery and each Time of
Delivery, of the Selling Stockholders herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and, in the case of
the Note Time of Delivery and each Time of Delivery, the Selling Stockholders
shall have performed all of its and their obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof, except in the case of the Note
Time of Delivery; if the Company has elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective by
10:00 P.M., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and
all requests for additional information on the part of the Commission
shall have been complied with to your reasonable satisfaction;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such opinion or opinions,
dated such Time of Delivery, with respect to the matters covered in
paragraphs (i), (ii), (vi), (ix) and (xii) of subsection (c) below as
well as such other related matters as you may reasonably request, and
such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
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(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued and outstanding
shares of capital stock of the Company (including the Shares
being delivered by the Company at such Time of Delivery) have
been duly authorized and, upon payment for the Shares in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable; and the Shares conform in
all material respects as to legal matters to the description of
the Stock contained in the Prospectus;
(iii) Based solely on such counsel's review of
certificates from public officials, the Company has been duly
qualified as a foreign corporation for the transaction of
business in, and is in good standing under the laws of, the
states of California, Georgia, Illinois, Kentucky, New Jersey,
New York, North Carolina, Pennsylvania and Texas.
(iv) Based solely on such counsel's review of certificates
from public officials, each of the Principal Subsidiaries has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation; and all of the issued and outstanding shares of
capital stock of each such Principal Subsidiary have been duly
authorized and validly issued, and are fully paid and
non-assessable, and (except for directors' qualifying shares) are
owned of record directly or indirectly by the Company, and, to
such counsel's knowledge are owned free and clear of all liens,
encumbrances or claims other than those as may have been created
by pledges to lenders under certain of the Company's credit
agreements (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
Company or its subsidiaries);
(v) To such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate reasonably be expected to have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement, the International Underwriting
Agreement, the Reorganization Agreement, the Retail Acquisition
Agreement, the Stockholders Agreement and the Registration Rights
Agreement have each been duly authorized, executed and delivered
by the Company and each of the Reorganization Agreement, Retail
Acquisition Agreement, the Stockholders Agreement and
Registration Rights Agreement constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and subject, as to enforceability, to
general principles of equity, good faith and fair dealing
(regardless of whether such enforceabililty is considered in a
proceeding in equity or at law);
(vii) The issue and sale of the Shares being delivered at
such Time of Delivery to be sold by the Company and the
compliance by the Company with all of the provisions of
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this Agreement, the International Underwriting Agreement, the
Reorganization Agreement, the Retail Acquisition Agreement, the
Stockholders Agreement and the Registration Rights Agreement and
of the Reorganization and the consummation of the transactions
herein and therein contemplated including the Reorganization (i)
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument and which is either filed as an Exhibit
to the Registration Statement or listed on Schedule V hereto,
(ii) nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any Applicable Law, or (iii) to the knowledge of such
counsel, based solely on an officer's certificate from an officer
of the Company and without independent inquiry, any order
applicable to the Company or any of its Principal Subsidiaries.
As used herein, "Applicable Law" shall mean the federal laws of
the United States, the laws of the State of New York and the
General Corporation Law of the State of Delaware, in each case
which, in such counsel's experience, are normally applicable to
transactions of the type contemplated by this Agreement, the
International Underwriting Agreement, the Reorganization
Agreement, the Retail Acquisition Agreement, the Stockholders
Agreement and the Registration Rights Agreement;
(viii) Based on such counsel's review of Applicable Law,
but without any investigation concerning any other laws, rules or
regulations, no consent, approval, authorization, order,
registration or qualification of or with any United States
federal, New York or Delaware court or governmental agency or
body is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by
this Agreement, the International Underwriting Agreement, the
Reorganization Agreement, the Retail Acquisition Agreement, the
Stockholders Agreement and the Registration Rights Agreement and
of the Reorganization, except the registration under the Act of
the Shares and of any shares as contemplated by the Registration
Rights Agreement;
(ix) The statements set forth in the Prospectus under the
caption "Description of Capital Stock," insofar as they purport
to constitute a summary of the terms of the Stock, and under the
captions "Underwriting," "Reorganization and Related
Transactions," "Certain Relationships and Related Transactions"
and "Certain United States Federal Tax Consequences to Non-United
States Holders of Class A Common Stock," insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are accurate and fair in all material respects;
(x) The Company is not an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act;
(xi) The Reorganization has been duly authorized and
consummated in accordance with Federal and New York law, the
General Corporation Law of the State of Delaware and the Delaware
Revised Uniform Limited Partnership Act; and
(xii) Each of the Registration Statement and the
Prospectus as of their respective effective or issue dates and
any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the financial
statements, financial statement schedules and other financial
data included in or omitted therefrom and related
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schedules therein, as to which such counsel need express no
opinion) appears on its face to be appropriately responsive in
all material respects to the requirements of the Act and the
rules and regulations thereunder; although they do not assume any
responsibility for the accuracy or fairness of the statements
contained in the Registration Statement or the Prospectus, except
for those referred to in the opinion in subsection (ix) of this
Section 8(c); in addition, such counsel shall state that it has
participated in conferences with directors, officers and other
representatives of the Company, various of the Selling
Stockholders, representatives of the independent public
accountants for the Company, representatives of the Underwriters
and representatives of counsel for the Underwriters, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed and, on the basis
of such participation, (relying as to various questions of fact
relevant to the opinion expressed therein upon the
representations and statements of officers and other
representatives of the Company) but without independent
verification of the accuracy, completeness, or fairness of the
statements contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, nothing has
come to such counsel's attention which has caused such counsel to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial
statements, financial statement schedules and other financial
data included in or omitted therefrom, as to which such counsel
need express no opinion) 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, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements, financial
statement schedules and other financial data included in or
omitted therefrom, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading or that, as of such Time of Delivery, either
the Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements, financial
statement schedules and other financial data included in or
omitted therefrom, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which
are not filed or described as required;
(d) Xxxxxx, Xxxxxxxxx & Xxxxxxxxx ("AR&E"), counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(c) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that
except as disclosed in the Prospectus, the Company and its subsidiaries
together own or have rights to use the trademarks Xxxx, Xxxxx Lauren
and Chaps/Xxxxx Xxxxxx (the "Principal Trademarks") in their businesses
as described in the Prospectus, without any conflict known
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to such counsel with any intellectual property rights of third parties
that would, individually or in the aggregate, have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries and, to such counsel's knowledge, there is no infringement
by others of the Principal Trademarks that would, individually or in
the aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, except that no opinion
need be given as to any jurisdiction outside the United States;
(e) The respective counsel for each of the Selling Stockholders
each shall have furnished to you their written opinion with respect to
each of the Selling Stockholders for whom they are acting as counsel
(drafts of such opinions are attached as Annex II(d) hereto), dated the
Note Time of Delivery with respect to the GS Selling Stockholders and
such Time of Delivery with respect to each other Selling Stockholder,
in form and substance satisfactory to you, to the effect that:
(i) Based on such counsel's review of Applicable Law, but
without any investigation concerning any other laws, rules or
regulations, this Agreement, the International Underwriting
Agreement, the Registration Rights Agreement and the Stockholders
Agreement and, in the case of the GS Selling Stockholders, the
Put Agreement, have been duly authorized (with respect to Selling
Stocking who are not natural persons), executed and delivered by
or on behalf of such Selling Stockholder; and the sale of the
Shares to be sold by such Selling Stockholder hereunder and
thereunder and compliance by such Selling Stockholder with all of
the provisions of this Agreement, the International Underwriting
Agreement, the Registration Rights Agreement and the Stockholders
Agreement and, in the case of the GS Selling Stockholders, the
Put Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any terms or provisions of, or constitute
a default under, any statute, indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or to which any of the property
or assets of such Selling Stockholder is subject based on such
counsel's review of Applicable Law, but without any investigation
concerning any other laws, rules or regulations; nor will such
action result in any violation of (i) the provisions of the
Certificate of Incorporation or By-Laws of such Selling
Stockholder if such Selling Stockholder is a corporation the
Partnership Agreement of such Selling Stockholder if such Selling
Stockholder is a partnership or the Trust Agreement of such
Selling Stockholder if such Selling Stockholder is a Trust, (ii)
any Applicable Law, or (iii) to the knowledge of such counsel,
any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling Stockholder;
(ii) Based on such counsel's review of Applicable Law, but
without any investigation concerning any other laws, rules or
regulations, no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement,
the International Underwriting Agreement, or the Registration
Rights Agreement or, in the case of the GS Selling Stockholders,
the Put Agreement, in connection with the Shares to be sold by
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such Selling Stockholder hereunder or thereunder, except such as
have been obtained under the Act and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of such shares by the Underwriters and
the International Underwriters and as contemplated by the
Registration Rights Agreement; and
(iii) Good and valid title to such Shares, free and clear
of all liens, encumbrances or claims, has been transferred to
each of the several Underwriters and International Underwriters
who have purchased such Shares in good faith and without notice
of any such lien, encumbrance or claim or any other adverse claim
within the meaning of the New York Uniform Commercial Code.
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, each of Deloitte & Touche LLP and Xxxxxxx Xxxxx
Rashbit & Pohart, CPA, PC shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I
hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex 1(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex 1(b) hereto);
(g)(i) Neither the Company nor any of its Principal Subsidiaries
shall have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries, except for draws or paydowns under the
Company's New Credit Facility and required payments under the
Subordinated Notes and payments required in connection with the
Reorganization Notes or any change, or any development related to the
Company involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which, in any such case described in clause (i) or (ii),
is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iv) in the judgment
of the Representatives makes it
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impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(i) The Shares at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the Exchange, except in the
case of the Note Time of Delivery;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the non-selling
stockholders of the Company (the "Non-Selling Stockholders"),
substantially to the effect set forth in Subsection 1(b)(iv) hereof in
form and substance satisfactory to you;
(k) The Company and the Selling Stockholders shall have furnished
or caused to be furnished to you at such Time of Delivery certificates
of officers of the Company and of the Selling Stockholders,
respectively, reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Selling
Stockholders, respectively, herein at and as of such Time of Delivery,
as to the performance by each of the Company and the Selling
Stockholders of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request, and the Company shall have
furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (g) of this Section;
(l) The Reorganization and the transactions contemplated by the
Retail Acquisition Agreement shall have been duly and validly
consummated in accordance with applicable law and in accordance with
the agreements governing the Reorganization as in effect on the date
hereof and the Retail Acquisition Agreement, respectively, and the
Reorganization Agreement, Stockholders Agreement and Registration
Rights Agreements shall have been authorized, executed and delivered in
the forms previously delivered to the Underwriters or counsel for the
Underwriters;
(m) The Put Agreement shall have been validly executed and
delivered by the GS Selling Stockholders at or prior to the Note Time
of Delivery;
(n) The Company shall have complied with the provisions of
Section 6(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
(o) Each of the Selling Stockholders shall have delivered to the
Underwriters certificates required by Treasury Regulation section
1.1445-2(b)(2) in order to avoid withholding of tax under Section 1445
of the Internal Revenue Code of 1986, as amended; and
(p) The Shares shall have been registered pursuant to the
Exchange Act and the rules and regulations thereof.
For purposes of this Section 8 references to the Prospectus shall mean
the most current Preliminary Prospectus if the Prospectus has not been filed
pursuant to Rule 424(b) under the Act at the Note Time of Delivery.
9. (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,
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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 in the Registration Statement or any
amendment or supplement thereto not misleading or to make the statements in any
Preliminary Prospectus or the Prospectus not misleading in light of the
circumstances under which they were made, 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 Xxxxxxx, Sachs & Co. expressly for use
therein.
(b) Each of the Selling Stockholders 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 in the Registration Statement or any amendment or supplement
thereto not misleading or to make the statements in any Preliminary Prospectus
or the Prospectus not misleading in light of the circumstances under which they
were made, 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 Xxxxxxx, Xxxxx & Co. expressly for use therein; provided, further, that
the liability of such Selling Stockholder pursuant to this subsection (b) shall
not exceed the product of the number of Shares sold by such Selling Stockholder
(including any Optional Shares) and the initial public offering price as set
forth in the Prospectus.
(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
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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 Xxxxxxx, Sachs & Co. 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 thereof is to be made against the
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, except to the extent
that such indemnifying party is prejudiced by the failure to give such notice.
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 a single counsel (in addition to
any local 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 hereunder (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. Notwithstanding anything to the contrary
contained herein, an indemnifying party will not be liable for the settlement of
any claim or action effected without its prior written consent, which consent
shall not be unreasonably withheld.
(e) If the indemnification provided for in this Section 9 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 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
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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 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, in each
case as set forth in the table on the cover page of the Prospectus. 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 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. 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 9 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 9 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 (including any person
who, with his or her consent, is named in the Registration Statement as someone
who will become a director of the Company and who becomes such a director) and
to each person, if any, who controls the Company or any Selling Stockholder
within the meaning of the Act.
10. (a) The Company will indemnify and hold harmless Xxxxxx Xxxxxxx &
Co. Incorporated, in its capacity as QIU, against any losses, claims, damages or
liabilities, joint or several, to which the QIU 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
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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 the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or defending any
such action or claim as such expenses are incurred.
(b) The Company also agrees to indemnify and hold harmless Xxxxxx
Xxxxxxx & Co. Incorporated and each person, if any, who controls Xxxxxx Xxxxxxx
& Co. Incorporated within the meaning of either Section 15 of the Act, or
Section 20 of the Exchange Act, from and against any all losses, claims,
damages, liabilities and judgments incurred as a result of Xxxxxx Xxxxxxx & Co.
Incorporated's participation as a "qualified independent underwriter" within the
meaning of Rule 2720 of the National Association of Securities Dealers' Conduct
Rules in connection with the offering of the Shares except for any losses,
claims, damages, liabilities and judgments found in a final judgment by a court
to have resulted from Xxxxxx Xxxxxxx & Co. Incorporated's, or such controlling
person's willful misconduct or gross negligence.
(c) Promptly after receipt by the QIU under subsection (a) and (b)
above of notice of the commencement of any action, the QIU shall, if a claim in
respect thereof is to be made against the Company under such subsection, notify
the Company in writing of the commencement thereof; but the omission so to
notify the Company shall not relieve it from any liability which it may have to
the QIU otherwise than under such subsection, except to the extent that the
Company is prejudiced by the failure to give such notice. In case any such
action shall be brought against the QIU and it shall notify the Company of the
commencement thereof, the Company 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 a single counsel (in
addition to any local counsel) satisfactory to the QIU (who shall not, except
with the consent of the QIU, be counsel to the Company), and, after notice from
the indemnifying party to the QIU of its election so to assume the defense
thereof, the indemnifying party shall not be liable to the QIU under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by the QIU, in connection with the defense
thereof other than reasonable costs of investigation. The Company shall not,
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 hereunder (whether or not the QIU is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the QIU 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
the QIU. Notwithstanding anything contained herein to the contrary, if indemnity
may be sought pursuant to Sections 9(a) and 9(b) hereof in respect of such
action or proceeding, then in addition to a separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local counsel)
for Xxxxxx Xxxxxxx & Co. Incorporated in its capacity as a "qualified
independent underwriter" and all persons, if any, who control Xxxxxx Xxxxxxx &
Co. Incorporated within the meaning of either Section 15 of the Act or Section
20 of the Exchange Act.
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless Xxxxxx Xxxxxxx & Co.
Incorporated, in its capacity as QIU, under subsection (a) and (b) 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 the QIU as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
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proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the QIU 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 QIU failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by the QIU in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the QIU 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 on the
one hand and the QIU 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, as set forth in the table on the cover page of the Prospectus,
bear to the fee payable to the QIU. 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 on the one hand or the QIU on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the QIU agree that it would not be just and equitable if contributions pursuant
to this subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by the QIU
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) 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. 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.
(e) The obligations of the Company under this section 10 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the QIU
within the meaning of the Act.
11. (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 Company and 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 Company and
the Selling Stockholders that you have so arranged for the purchase of such
Shares, or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and 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 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.
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(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company 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 the Shares to be purchased at such Time of Delivery,
then the Company and 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 Company 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 Company and 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 Company and certain 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 7 hereof and
the indemnity and contribution agreements in Sections 9 and 10 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
12. 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
agreement of the Company in subsection (a) of Section 9 hereof, the
representations and warranties in subsections (a)(ii) and (a)(iii) of Section 1
hereof 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 8 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 controlling person or partner of an Underwriter who is a director, officer or
controlling person of the Company when the Registration Statement has become
effective, 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 of whether such interest is
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against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
13. If this Agreement shall be terminated pursuant to Section 11
hereof, neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 7, 9 and 10 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Stockholders as provided herein, the Company, will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, 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 7, 9 and
10 hereof.
14. 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 Xxxxxxx, Sachs & Co. on behalf of you as the
representatives; and in all dealings with any of the GS Selling Stockholders
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such GS Selling
Stockholders made or given by either of the Attorneys-in-Fact for such GS
Selling Stockholders.
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 you as the representatives in care of Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to any Selling Stockholders shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholders 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 9(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 you on request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
15. 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 9, 10 and 12 hereof, the officers and directors
of the Company and each person who controls the Company, any Selling
Stockholders or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under 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.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
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18. 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 one for the Company and each of the Representatives plus one
for each counsel 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, the form of which shall be
submitted 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.
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30
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholders represents by so doing that he has been duly
appointed as Attorney-in-Fact by such Selling Stockholders pursuant to a validly
existing and binding Power-of-Attorney which authorizes such Attorney-in-Fact to
take such action.
Very truly yours,
XXXX XXXXX LAUREN CORPORATION
By: ______________________________________________________
Name:
Title:
The GS Selling Stockholders Named in Schedule II to this
Agreement
By: ______________________________________________________
Name:
Title:
As Attorney-in-Fact acting on
behalf of each of the GS Selling
Stockholders named in Schedule II
Accepted as of the date hereof: to this Agreement.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx __________________________________________________________
Incorporated XXXXX XXXXXX
Xxxxxx Xxxxxxx & Co. Incorporated
By:__________________________________________________
(Xxxxxxx, Sachs & Co.) XXXXX XXXXXX 1997 CHARITABLE
REMAINDER TRUST
On behalf of each of the Underwriters By: ______________________________________________________
Name:
31
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
--------------- ------------------
Xxxxxxx, Sachs & Co.................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.....................................
Xxxxxx Xxxxxxx & Co. Incorporated...................................
---------- ---------
Total...................................................... 23,500,000 3,525,000
========== =========
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SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- ------------------
The Company.........................................................
The Selling Stockholder(s):.........................................
Xxxxx Lauren (a)............................................
Xxxxx Xxxxxx 1997 Charitable Remainder Unitrust (b).........
GS Capital Partners, L.P. (c)...............................
GS Capital Partners PRL Holding I, L.P. (c).................
GS Capital Partners PRL Holding II, L.P. (c)................
Xxxxx Xxxxxx Xxxx 0000, X.X. (c)............................
Stone Street 1994 Subsidiary Corp. (c)......................
Xxxxxx Xxxxxx Xxxx 0000, X.X. (c)...........................
---------- ---------
Total.....................................................
========== =========
-------------
(a) This Selling Stockholder is represented by Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx.
(b) This Selling Stockholder is represented by Xxxxxxx & Sterling.
(c) This Selling Stockholder is represented by Xxxxx X. Xxxxxxxxx.
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SCHEDULE III
FIRM SHARES
-----------
Xxxxxxx, Sachs & Co......................
GS Capital Partners, L.P.
GS Capital Partners PRL Holding I, L.P.
GS Capital Partners PRL Holding II, X.X.
Xxxxx Street Fund 1994, X.X.
Xxxxx Street 1994 Subsidiary Corp.
Bridge Street Fund 1994, X.X.
Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx
Incorporated................
GS Capital Partners, L.P.
GS Capital Partners PRL Holding I, L.P.
GS Capital Partners PRL Holding II, X.X.
Xxxxx Street Fund 1994, X.X.
Xxxxx Street 1994 Subsidiary Corp.
Bridge Street Fund 1994, X.X.
Xxxxxx Xxxxxxx & Co. Incorporated........
GS Capital Partners, L.P.
GS Capital Partners PRL Holding I, L.P.
GS Capital Partners PRL Holding II, X.X.
Xxxxx Street Fund 1994, X.X.
Xxxxx Street 1994 Subsidiary Corp.
Bridge Street Fund 1994, L.P.
-----------------------
Total.............................
=======================
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ANNEX I
FORM OF COMFORT LETTER
Pursuant to Section 8(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as indicated in their reports thereon copies
of which have been separately furnished to the Representatives; and on
the basis of specified procedures including inquiries of officials of
the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial 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;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform
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in all material respects with the disclosure requirements of Items 301,
302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements
included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements included
in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the consolidated long-term debt
of the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the latest
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36
balance sheet included in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or
per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other
period of corresponding length specified by the Representatives,
except in each case for decreases or increases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus, or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
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SCHEDULE IV
PRINCIPAL SUBSIDIARIES
Fashions Outlet of America, Inc.
The Xxxxx Xxxxxx Womenswear Company, L.P.
The Polo/Lauren Company, L.P.
RL Fragrances, LLC
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