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STB DRAFT 6/6/97
EXHIBIT 1.1
7,200,000 Shares
XXXX CORPORATION
Common Stock
U.S. Underwriting Agreement
______________, 1997
Xxxxxx Brothers Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
Xxxxxxxx Xxxxxxxx & Co. Incorporated
As Representatives for each of
the several U.S. Underwriters
named in Schedule I hereto,
c/x XXXXXX BROTHERS INC.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Brothers Merchant Banking Portfolio Partnership L.P.,
Xxxxxx Brothers Capital Partners II, L.P., Xxxxxx Brothers Offshore Investment
Partnership L.P. and Xxxxxx Brothers Offshore Investment Partnership - Japan
L.P. (each a "Selling Stockholder" and collectively the "Selling Stockholders")
propose to sell to the several U.S. Underwriters named in Schedule I hereto
(the "U.S. Underwriters") an aggregate of 7,200,00 shares (the "Firm Shares")
of Common Stock, $.01 par value (the "Common Stock"), of Xxxx Corporation, a
Delaware corporation (the "Company"). In addition, for the sole purpose of
covering over-allotments in connection with the sale of the Firm Shares, the
Selling Stockholders propose to grant to the U.S. Underwriters an option to
purchase up to an aggregate of 1,030,000 additional shares (the "Option
Shares") of Common Stock. The Firm Shares and any Option Shares purchased
pursuant to this Agreement are herein called the "Shares".
It is understood that the Company and the Selling Stockholders
are concurrently entering into an International Underwriting Agreement dated
the date hereof (the "International Underwriting Agreement"), providing for the
sale by the Selling Stockholders of an aggregate of 1,800,000 shares (the
"International Firm Shares") of Common Stock through arrangements
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with certain underwriters outside the United States and Canada (the
"International Managers"), for whom Xxxxxx Brothers International (Europe),
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Xxxxxx Xxxxxxx & Co.
International Limited, Salomon Brothers International Limited and J. Xxxxx
Xxxxxxxx & Co. Limited are acting as lead managers (the "Lead Managers"). In
addition, for the sole purpose of covering over-allotments in connection with
the sale of the International U.S. Firm Shares, the Selling Stockholders
propose to grant to the International Managers an option to purchase up to an
aggregate of 254,854 additional shares (the "International Option Shares") of
Common Stock. The International Firm Shares and the International Option
Shares which may be offered by the International Managers pursuant to the
International Underwriting Agreement are herein called the "International
Shares"; the International Shares and the Shares, collectively, are herein
called the "Underwritten Shares". As specified in Section 3, the respective
closings under this Agreement and the International Underwriting Agreement are
hereby expressly made conditional on one another.
The Company and the Selling Stockholders also understand that
the U.S. Underwriters and the International Managers have entered into an
agreement (the "Agreement Between U.S. Underwriters and International
Managers") contemplating the coordination of certain transactions between the
U.S. Underwriters and the International Managers and that, pursuant thereto and
subject to the conditions set forth therein, the U.S. Underwriters may purchase
from the International Managers a portion of the International Shares or sell
to the International Managers a portion of the Shares. The Company and the
Selling Stockholders understand that any such purchases and sales between the
U.S. Underwriters and the International Managers shall be governed by the
Agreement Between U.S. Underwriters and International Managers and shall not be
governed by the terms of this Agreement or the International Underwriting
Agreement.
This is to confirm the agreement concerning the purchase of
the Shares from the Selling Stockholders by the U.S. Underwriters and certain
related agreements among the Company, the Selling Stockholders and the U.S.
Underwriters.
The following terms as used in this Agreement shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Business Day" shall mean any day on which the New York Stock
Exchange is open for trading.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean the date of the Effective Time.
"Effective Time" shall mean the date and the time as of which
the Registration Statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission (or, if the Company
will next file with the Commission an amendment to the Registration Statement
as contemplated by clause (i) of the first paragraph of Section 1, the date and
time as of which the Registration Statement shall be declared effective).
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"International Prospectus" shall mean a Prospectus relating to
the International Shares which are to be offered and sold outside the United
States to persons other than U.S. Persons.
"Preliminary Prospectuses" shall mean each prospectus included
in the Registration Statement, or any amendment thereof, before the Effective
Date, each prospectus filed with the Commission by the Company with the consent
of the Representatives pursuant to Rule 424(a) and each prospectus included in
the Registration Statement at the Effective Time that omits Rule 430A
Information.
"Prospectuses" shall mean the forms of prospectuses relating
to the Underwritten Shares, as first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required, the forms
of final prospectuses included in the Registration Statement at the Effective
Time.
"Registration Statement" shall mean the registration statement
referred to above, as amended at the Effective Time, including any documents
incorporated by reference therein and all exhibits thereto. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Time as provided by Rule 430A.
"Rule 424" and "Rule 430A" shall refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to
the Underwritten Shares and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule 430A.
"Rules and Regulations" shall mean the rules and regulations
in effect at any relevant time adopted by the Commission under the Act or the
Exchange Act.
"Subsidiary" and "Significant Subsidiary" shall have the
meanings assigned in Rule 405 of the Rules and Regulations. As used in
reference to the Company, "subsidiary" shall mean a Subsidiary of the Company.
"U.S. Person" shall mean any resident or national of the
United States or Canada and its provinces, any corporation, partnership or
other entity created or organized in or under the laws of the United States or
Canada and its provinces or any estate or trust the income of which is subject
to United States or Canadian income taxation regardless of the source of its
income (other than the foreign branch of any U.S. Person), and includes any
United States or Canadian branch of a person other than a U.S. Person; and
"United States" shall mean the United States of America (including the states
thereof and the District of Columbia) and its territories, its possessions and
other areas subject to its jurisdiction.
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"U.S. Preliminary Prospectus" shall mean a Preliminary
Prospectus relating to the Shares which are to be offered and sold in the
United States or Canada and its provinces or to U.S. Persons.
"U.S. Prospectus" shall mean a Prospectus relating to the
Shares which are to be offered and sold in the United States or Canada and its
provinces or to U.S. Persons.
Reference made herein to any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any documents incorporated
by reference therein (including all exhibits thereto) pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of such Preliminary
Prospectus or the Prospectus and any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Exchange Act after the date of such
Preliminary Prospectus or the Prospectus and incorporated by reference in such
Preliminary Prospectus or the Prospectus.
1. Representations and Warranties of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No.
333-_______) with respect to the Underwritten Shares has been prepared by the
Company in conformity with the requirements of the Act and the Rules and
Regulations thereunder and has been filed with the Commission under the Act.
Copies of such registration statement as amended to date have been delivered by
the Company to you as the Representatives of the U.S. Underwriters. The
Company will next file with the Commission one of the following: (i) prior to
effectiveness of such registration statement, a further amendment to such
registration statement, including forms of final prospectuses or (ii) after
effectiveness of such registration statement, final prospectuses in accordance
with Rules 430A and 424(b)(1) or (4).
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectuses are first filed (if required) in accordance
with Rule 424(b) and on each Closing Date (as defined in Section 4) the
Prospectuses (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Rules and
Regulations. The Company has included in the Registration Statement, as
amended at the Effective Date, all information required by the Act and the
Rules and Regulations thereunder to be included in the Prospectuses with
respect to the Underwritten Shares and the offering thereof, and the
Prospectuses, when filed with the Commission, did or will contain all Rule 430A
Information, together with all other such required information, with respect to
the Underwritten Shares and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest Preliminary Prospectuses) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Commission has not
issued any stop order preventing or suspending the use of any Preliminary
Prospectus or the Prospectuses or the effectiveness of the Registration
Statement, and no proceeding for any such purpose has been initiated or
threatened by the Commission.
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(c) On the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Prospectuses did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on each Closing Date, the Prospectuses (together with any
supplements thereto) will not, include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectuses in reliance upon, and in conformity with, written information
furnished to the Company by you or any Selling Stockholder, or by any U.S.
Underwriter through you, specifically for inclusion therein.
(d) The documents incorporated by reference in the
Prospectuses, when they were filed with the Commission (or upon amendment
thereof by other documents included in such incorporated documents), conformed
in all material respects to the requirements of the Act or Exchange Act, as
applicable, and the Rules and Regulations thereunder, and such documents were
timely filed as required thereby and none of such documents 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, in light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectuses, when such
documents become effective or are filed with Commission will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations thereunder, and will be timely filed
as required thereby and will 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 not misleading.
(e) Neither the Commission nor, to the knowledge of the
Company, the "blue sky" or securities authority of any jurisdiction has issued
an order (a "Stop Order") suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectuses,
the Prospectuses, the Registration Statement, or any amendment or supplement
thereto, refusing to permit the effectiveness of the Registration Statement, or
suspending the registration or qualification of the Underwritten Shares, nor,
to the knowledge of the Company, has any of such authorities instituted or
threatened to institute any proceeding with respect to a Stop Order in any
jurisdiction in which the Underwritten Shares are sold.
(f) Each of the Company and its subsidiaries is a corporation
duly organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation, with full power and authority, and all necessary
consents, authorizations, approvals, orders, licenses, certificates, and
permits of and from, all Federal, state, local, and other governmental and
foreign authorities, to own, lease, license, and use its properties and assets
and to carry on its business in the manner described in the Prospectuses except
where such failure will not have a material adverse effect on the Company and
its subsidiaries taken as a whole. Except as described in the Registration
Statement and Prospectuses, each such consent, authorization, approval, order,
license, certificate and permit is valid and in full force and effect, and
there is no proceeding pending, or to the knowledge of the Company, threatened,
which might lead to the revocation, termination, suspension or nonrenewal of
any such consent, authorization, approval, order,
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license, certificate or permit. Each of the Company and its subsidiaries is
duly qualified to do business and is in good standing in every jurisdiction in
which its ownership, leasing, licensing, or use of property and assets or the
conduct of its business makes such qualification necessary, except in those
jurisdictions where failure to qualify or to be in good standing would not have
a material adverse effect on the Company and its subsidiaries taken as a whole.
(g) The Company has an authorized capitalization as set forth
in the Registration Statement. Except as described or otherwise disclosed in
the Prospectuses, each outstanding share of Common Stock and each outstanding
share of capital stock of the Company's subsidiaries is duly authorized,
validly issued, fully paid and nonassessable, has not been issued and is not
owned or held in violation of any preemptive rights of stockholders, and, in
the case of the Company's subsidiaries, is owned of record and beneficially by
the Company (except for directors' qualifying shares), or its subsidiaries free
and clear of all liens, security interests, pledges, charges, encumbrances,
stockholders' agreements and voting trusts. The Company's capital stock
conform to the statements in relation thereto contained in the Prospectuses.
There is no commitment, plan or arrangement to issue, and no outstanding
option, warrant or other right calling for the issuance of, any share of
capital stock of the Company or the Company's subsidiaries to any person or any
security or other instrument which by its terms is convertible into,
exercisable for, or exchangeable for capital stock of the Company or the
Company's subsidiaries, except as described or otherwise disclosed in the
Prospectuses. There is outstanding no security or other instrument which by
its terms is convertible into or exchangeable for capital stock of the Company
or any of their subsidiaries, except as described or otherwise disclosed in the
Prospectuses.
(h) Other than as described in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act, other than rights that have been duly and validly
waived.
(i) Neither the Company nor any of its subsidiaries has
sustained, since the date of the Company's Report on Form 10-K for the year
ended December 31, 1996, 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 Prospectuses; and,
since such date, there has not been any change in the capital stock of the
Company (other than in respect of shares of Common Stock issued upon the
exercise of management options) or any material change in long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectuses.
(j) Neither the Company nor any of its subsidiaries is now or
is expected by the Company or its subsidiaries to be in violation or breach of,
or in default with respect to, any
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provision of any contract, agreement, instrument, lease, or license to which
the Company or any of its subsidiaries is a party, the effect of which would
materially adversely affect the financial condition, results of operations,
business, assets, liabilities or prospects of the Company and its subsidiaries
taken as a whole. Each such material contract, agreement, instrument, lease or
license (i) is in full force, (ii) assuming the correctness of (iii) below, is
the legal, valid, and binding obligation of the Company or its subsidiaries and
is enforceable as to the Company or its subsidiaries, as the case may be, in
accordance with its terms, except that enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws
affecting the enforcement of creditors' rights generally and by general equity
principles and (iii) to the Company's knowledge, is the legal, valid and
binding obligation of the other parties thereto and is enforceable as to each
of them in accordance with its terms, except that enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles. Each of the Company and its subsidiaries enjoys
peaceful and undisturbed possession under all leases and licenses of real
property under which it is operating except where such failure could not
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(k) The Underwritten Shares have been duly and validly
authorized and are validly issued, fully paid and nonassessable; the
Underwritten Shares conform to the description of the Common Stock in the
Prospectuses; and the Underwritten Shares have been listed on the New York
Stock Exchange.
(l) The execution, delivery and performance of this Agreement
and the International Underwriting Agreement and the consummation of the
transactions contemplated hereby and thereby, the issuance and sale of the
Shares, will not conflict with or result in a breach or violation in any
material respect 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, nor will such actions result in any violation in any material respect
of the provisions of the Certificate of Incorporation or the By-laws, in each
case as amended, of the Company or any of its subsidiaries or 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 or assets; and no consent, approval, authorization, order,
registration, filing or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Underwritten Shares or
the consummation of the other transactions contemplated by this Agreement or
the International Underwriting Agreement, except the registration under the Act
of the Underwritten Shares, and such consents, approvals, authorizations,
registrations, filings or qualifications as may be required under state
securities or Blue Sky laws or as may be required by the laws of any country
other than the United States in connection with the purchase and distribution
of the Underwritten Shares by the U.S. Underwriters and the International
Managers.
(m) The Company will not, during the period of 90 days after
the date hereof except pursuant to this Agreement or the U.S. Underwriting
Agreement or as contemplated by
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the Prospectuses, offer, sell or otherwise dispose of any Common Stock or
securities convertible into or exchangeable or exercisable for such Common
Stock of the Company, directly or indirectly, without the prior written consent
of Xxxxxx Brothers International (Europe); provided, however, that (i) the
Company may issue and sell Common Stock pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment plan of the Company in
effect at the Effective Time, (ii) the Company may issue Common Stock issuable
upon the conversion of securities or the exercise of warrants outstanding at
the Effective Time and (iii) the Company may issue Common Stock as
consideration in connection with the acquisition by the Company of new
businesses.
(n) Except as may otherwise be disclosed in or contemplated
by the Prospectuses, since the date as of which information is given in the
Prospectuses, (i) the Company has not declared or paid any dividend or made any
distribution on its capital stock, (ii) the Company has not issued or granted
any securities and (iii) neither the Company nor any of its subsidiaries have
entered into any transaction or incurred any liability or obligation,
contingent or otherwise, other than in the ordinary course of business.
(o) Any contract, agreement, instrument, lease or license
required to be described in the Registration Statement or the Prospectuses has
been properly described therein, and any contract, agreement, instrument, lease
or license required to be filed as an exhibit to the Registration Statement has
been filed with the Commission as an exhibit to or has been incorporated as an
exhibit by reference into the Registration Statement.
(p) There is no labor strike or work stoppage or lockout
actually pending, imminent or threatened against the Company or any of its
subsidiaries which would have a material adverse effect on the consolidated
financial condition, results of operations, business, assets, liabilities or
prospects of the Company and its subsidiaries taken as a whole.
(q) Except as set forth in the Registration Statement and the
Prospectuses and except as would not materially and adversely affect the
consolidated financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries taken as a whole, (i)
the Company is not in violation of any applicable Federal, state, local or
foreign environmental law or any applicable order of any governmental authority
with respect thereto; (ii) the Company is not in violation of or subject to any
existing, or pending or, to the Company's knowledge, threatened action, suit,
investigation, inquiry or proceeding by any governmental authority nor is the
Company subject to any remedial obligations under any applicable Federal,
state, local or foreign environmental law; (iii) the Company and its
subsidiaries are in compliance with all permits or similar authorizations, if
any, required to be obtained or filed in connection with their operations
including, without limitation, emissions, discharges, treatment, storage,
disposal or release of a Hazardous Material into the environment except where
any noncompliance could not reasonably be expected to have a material adverse
effect on the operations of the Company and its subsidiaries; and (iv) to the
knowledge of the Company and its subsidiaries, after appropriate inquiry, no
Hazardous Materials have been disposed of or released by the Company or its
subsidiaries on or to the Company's or its
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subsidiaries' property, except in accordance with applicable environmental
laws. The term "Hazardous Material" means any oil (including petroleum
products, crude oil and any fraction thereof), chemical, contaminant,
pollutant, solid or hazardous waste, or Hazardous Substance (as defined in
Section 101(14) of the Comprehensive Environmental Response, Compensation and
Liability Act and regulations thereunder), that is regulated as toxic or
hazardous to human health or the environment under any Federal, state, local or
foreign environmental law.
(r) Except with respect to taxable periods commencing before
the taxable period ended June 30, 1991, as to which no representation is made,
the Company has filed all Federal, state, local and foreign income and
franchise tax returns required to be filed through the date hereof and has paid
all taxes shown to be due with respect to the taxable periods covered by such
returns, and no tax deficiency has been assessed, nor does the Company have any
knowledge of any tax deficiency which, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could
reasonably be expected to have a material adverse effect on the consolidated
financial condition, results of operations, business, assets, liabilities or
prospects of the Company and its subsidiaries taken as a whole.
(s) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(t) The financial statements (including the related notes and
supporting schedules) incorporated by reference in the Prospectuses present
fairly the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with applicable generally accepted accounting
principles applied on a consistent basis throughout the periods involved.
(u) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company, and Price Waterhouse LLP, who have certified certain
financial statements of Masland (as defined in the Prospectuses), and whose
reports are incorporated by reference in the Prospectus, are independent public
accountants as required by the Act and the Rules and Regulations.
(v) There is no litigation or governmental proceeding pending
or, to the knowledge of the Company or any of its subsidiaries, threatened
against the Company or any of its subsidiaries which could reasonably be
expected to result in any material adverse change in the consolidated financial
condition, results of operations, business, assets, liabilities or prospects of
the Company or any of its subsidiaries or which affects the transactions
contemplated by this Agreement and the Prospectuses or which is required to be
disclosed in the Registration Statement and the Prospectuses, which is not
disclosed and correctly summarized therein.
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(w) The filing of the Registration Statement has been duly
authorized by the Company.
(x) Each of the Company and its subsidiaries holds good and
marketable title to, or valid and enforceable leasehold interests in, all items
of real and personal property which are material to the business of the Company
and its subsidiaries taken as a whole, free and clear of any lien, claim,
encumbrance, preemptive rights or any other claim of any other third party
which are reasonably expected to materially interfere with the conduct of the
business of the Company and its subsidiaries taken as a whole. The Company and
its subsidiaries are in material compliance with all applicable laws, rules and
regulations, except where such failure to comply would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(y) The Company has not taken, and agrees that it will not
take, directly or indirectly, any action that could reasonably be expected to
cause or result in stabilization or manipulation of the price of any security
to facilitate the sale or resale of the Shares.
2. Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder, severally and not jointly, represents,
warrants and agrees as to itself that:
(a) Such Selling Stockholder has, and immediately prior to
the First Closing Date (as defined in Section 4) such Selling Stockholder will
have, good and valid title to the Underwritten Shares to be sold by such
Selling Stockholder hereunder as set forth in Schedule II hereto and under the
International Underwriting Agreement on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such Underwritten Shares
and payment therefor pursuant hereto and thereto, good and valid title to such
Underwritten Shares, free and clear of all liens, encumbrances, equities or
claims, will pass to the several U.S. Underwriters and the International
Managers.
(b) Such Selling Stockholder has duly and irrevocably
executed and delivered powers of attorney (each, a "Power of Attorney")
appointing one or more other persons, as attorneys- in-fact, with full power of
substitution, and with full authority (exercisable by any one or more of them)
to execute and deliver this Agreement and the International Underwriting
Agreement and to take such other action as may be necessary or desirable to
carry out the provisions hereof or thereof on behalf of such Selling
Stockholder.
(c) Such Selling Stockholder has full right, power and
authority to enter into and perform under this Agreement, the International
Underwriting Agreement and the Power of Attorney; the execution, delivery and
performance of this Agreement, the International Underwriting Agreement and the
Power of Attorney by such Selling Stockholder and the consummation by such
Selling Stockholder of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation in any material respect 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 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, nor will such actions result in any violation
in any material respect of the provisions of the Certificate of Incorporation
or the By-laws or comparable instruments, as
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applicable, or any partnership agreement of such Selling Stockholder or 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 or
assets of such Selling Stockholder; and no consent, approval, authorization,
order, filing or registration of or with, any court or governmental agency or
body is required for the execution, delivery and performance of this Agreement,
the International Underwriting Agreement or the Power of Attorney by such
Selling Stockholder and the consummation by such Selling Stockholder of the
transactions contemplated hereby and thereby, except the registration under the
Act of the Underwritten Shares, filings pursuant to Sections 13 and 16 of the
Exchange Act, and such consents, approvals, authorizations, registrations,
filings or qualifications as may be required under state securities or Blue Sky
laws or as may be required by the laws of any country other than the United
States in connection with the purchase and distribution of the Shares by the
U.S. Underwriters.
(d) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectuses, the Prospectuses or
any amendment or supplement thereto are made in reliance upon and in conformity
with written information concerning such Selling Stockholder furnished to the
Company by such Selling Stockholder specifically for use therein, such
Preliminary Prospectuses did, and the Registration Statement did or will, and
the Prospectuses and any amendments or supplements to the Registration
Statement or the Prospectuses will, when they become effective or are filed
with the Commission, as the case may be, 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, in the light of the circumstances
under which they were made, not misleading.
3. Purchase of the Shares by the U.S. Underwriters. (a)
Subject to the terms and conditions and upon the basis of the representations
and warranties herein set forth, each of the Selling Stockholders, severally
and not jointly, agrees to sell that number of Firm Shares set forth opposite
such Selling Stockholder's name in Schedule II hereto, to the U.S.
Underwriters, and each of the U.S. Underwriters agrees, severally and not
jointly, to purchase, at a price of $_____ per Share, the number of Firm Shares
set forth opposite such U.S. Underwriter's name in Schedule I hereto. Each
U.S. Underwriter shall be obligated to purchase from the Selling Stockholders
that number of the Firm Shares which represents the same proportion of the
number of the Firm Shares to be sold by the Selling Stockholders as the number
of the Firm Shares set forth opposite the name of such U.S. Underwriter in
Schedule I represents of the total number of the Firm Shares to be purchased by
all of the Underwriters pursuant to this Agreement. The respective purchase
obligations of the U.S. Underwriters with respect to the Firm Shares shall be
rounded among the U.S. Underwriters to avoid fractional shares, as the
Representatives may determine. The U.S. Underwriters agree to offer the Firm
Shares to the public as set forth in the U.S. Prospectus. Each U.S.
Underwriter agrees that, except to the extent permitted by the Agreement
Between U.S. Underwriters and International Managers, it will not offer any of
the Shares outside the United States and Canada.
The obligations of the Selling Stockholders to sell any
Shares, and the obligations of the U.S. Underwriters to purchase the Shares,
are subject to the closing of the sale and purchase of the International Firm
Shares pursuant to the International Underwriting Agreement.
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(b) Subject to the terms and conditions of this Agreement,
the Selling Stockholders hereby grant to the U.S. Underwriters an option to
purchase from the Selling Stockholders solely for the purpose of covering
over-allotments in the sale of Firm Shares, up to 1,030,000 shares of the
Option Shares for a period of 30 days from the date hereof at the purchase
price per Share set forth above. Option Shares shall be purchased from the
Selling Stockholders for the accounts of the U.S. Underwriters, severally and
not jointly, in proportion to the number of Firm Shares set forth opposite such
U.S. Underwriter's name in Schedule I hereto, except that the respective
purchase obligations of each U.S. Underwriter shall be adjusted by the
Representatives so that no U.S. Underwriter shall be obligated to purchase
Option Shares other than in 100-share quantities. Option Shares shall be sold
by the Selling Stockholders in proportion to the number of Firm Shares set
forth opposite such Selling Stockholder's name in Schedule II hereto, rounded
among the Selling Stockholders to avoid fractional shares.
4. Delivery of and Payment for Shares. Delivery of
certificates for the Firm Shares, and certificates for the Option Shares, if
the option to purchase the same is exercised on or before the third Business
Day prior to the First Closing Date, shall be made at the offices of Xxxxxx
Brothers Inc., Three World Financial Center, Attn: _____________, Xxx Xxxx,
Xxx Xxxx 00000 (or such other place as mutually may be agreed upon), at 10:00
A.M., New York City time, on the third full Business Day following the date of
this Agreement if this Agreement is executed before 4:30 p.m. New York time, or
on the fourth full Business Day following the date of this Agreement if this
Agreement is executed after 4:30 p.m. New York time or on such later date as
shall be determined by you and the Selling Stockholders (the "First Closing
Date").
The option to purchase Option Shares granted in Section 3
hereof may be exercised during the term specified therein by written notice to
each of the Selling Stockholders from the Representatives. Such notice shall
set forth the aggregate number of Option Shares as to which the option is being
exercised and the time and date, not earlier than either the First Closing Date
or the second Business Day after the date on which the option shall have been
exercised nor later than the third Business Day after the date of such
exercise, as determined by the Representatives, when the Option Shares are to
be delivered (the "Option Closing Date"). Delivery and payment for such Option
Shares shall be made at the offices set forth above for delivery and payment of
the Firm Shares. (The First Closing Date and the Option Closing Date are
herein individually referred to as a "Closing Date" and collectively referred
to as the "Closing Dates".)
Delivery of certificates for the Shares shall be made by or on
behalf of the Selling Stockholders to you, for the respective accounts of the
U.S. Underwriters, against payment of the purchase price therefor by certified
or official bank checks payable in New York Clearing House (next day) funds to
the order of each of the Selling Stockholders. The certificates for the Shares
shall be registered in such names and denominations as you shall have requested
at least two full Business Days prior to the applicable Closing Date, and shall
be made available for checking and packaging in New York, New York, or such
other location as may be designated by you at least one full Business Day prior
to such Closing Date. Time shall be of the essence, and delivery of
certificates for the Shares at the time and place specified in this Agreement
is a further condition to the obligations of each U.S. Underwriter.
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5. Covenants. The Company agrees with each U.S. Underwriter
that:
(a) The Company shall use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendments thereto to become effective. The Company shall advise you promptly
of the filing of any amendment to the Registration Statement or any supplement
to any Prospectus and, upon notification from the Commission that the
Registration Statement or any such amendment has become effective, shall so
advise you promptly (in writing, if requested). If the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of any
Prospectus is otherwise required under Rule 424(b), the Company will cause such
Prospectus, properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) in the manner
and within the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company shall notify you
promptly of any request by the Commission for any amendment of or supplement to
the Registration Statement or any Prospectus or for additional information; the
Company shall prepare and file with the Commission, promptly upon your request,
any amendments or supplements to the Registration Statement or the U.S.
Prospectus which, in your reasonable opinion, may be necessary or advisable in
connection with the distribution of the Shares; and the Company shall not file
any amendment or supplement to the Registration Statement or the U.S.
Prospectus, which filing is not consented to by you after reasonable notice
thereof. The Company shall advise you promptly of the issuance by the
Commission or any state or other governmental or regulatory body of any stop
order or other order suspending the effectiveness of the Registration
Statement, suspending or preventing the use of any Preliminary Prospectus or
Prospectus or suspending the qualification of the Shares for offering or sale
in any jurisdiction, or of the institution of any proceedings for any such
purpose; and the Company shall use its best efforts to prevent the issuance of
any stop order or other such order and, should a stop order or other such order
be issued, to obtain as soon as possible the lifting thereof.
(b) The Company shall furnish to Xxxxxx Brothers Inc. and to
counsel for the U.S. Underwriters a signed copy of the Registration Statement
as originally filed and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith, and shall furnish to the
U.S. Underwriters such number of conformed copies of the Registration
Statement, as originally filed and each amendment thereto (excluding exhibits
other than this Agreement), any Preliminary Prospectus, the U.S. Prospectus and
all amendments and supplements to any of such documents, in each case as soon
as available and in such quantities as the Representatives may from time to
time reasonably request.
(c) Within the time during which the Prospectuses relating to
the Underwritten Shares are required to be delivered under the Act, the Company
shall comply with all requirements imposed upon it by the Act, the Exchange Act
and the Rules and Regulations so far as is necessary to permit the continuance
of sales of or dealings in the Underwritten Shares as contemplated by the
provisions hereof and by the Prospectuses. If during such period any event
occurs as a result of which the U.S. Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the U.S.
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Prospectus to comply with the Act or the Exchange Act or the Rules and
Regulations, the Company shall promptly notify you and, subject to the
penultimate sentence of paragraph (a) of this Section 5, shall amend the
Registration Statement or supplement the U.S. Prospectus or file such document
(at the expense of the Company) so as to correct such statement or omission or
to effect such compliance.
(d) The Company shall take or cause to be taken all necessary
action and furnish to whomever you may direct such information as may be
required in qualifying the Shares (and any International Shares that may be
sold to the U.S. Underwriters by the International Managers) for offer and sale
under the state securities or Blue Sky laws of such jurisdictions as you shall
designate and to continue such qualifications in effect for as long as may be
necessary for the distribution of the Shares (and such International Shares);
except that in no event shall the Company be obligated in connection therewith
to qualify as a foreign corporation or to execute a general consent to service
of process.
(e) The Company shall furnish to you, on or prior to the date
of this Agreement, a letter or letters, in form and substance reasonably
satisfactory to counsel for the U.S. Underwriters, pursuant to which each
executive officer of the Company identified in the Prospectuses who owns any
shares of Common Stock at the Execution Time shall agree not to offer for sale,
sell or otherwise dispose of any shares of Common Stock of any securities
convertible or exchangeable or exercisable for such Common Stock during the 60
days following the date of the Effective Time except with prior written consent
of Xxxxxx Brothers Inc.
(f) Whether or not the transactions contemplated in this
Agreement are consummated, the costs incident to the preparation, printing and
filing under the Act of the Registration Statement and any amendments and
exhibits thereto; the costs of distributing the Registration Statement as
originally filed and each amendment and post-effective amendment thereof
(including exhibits), any Preliminary Prospectus, each Prospectus and any
amendment or supplement to each Prospectus, all as provided in this Agreement,
the filing fee of the NASD; the reasonable fees and expenses of qualifying the
Shares under the securities laws of the several jurisdictions as provided in
this paragraph and of preparing and printing a Blue Sky Memorandum and a
memorandum concerning the legality of the Shares as an investment, if any
(including reasonable fees and expenses of counsel to the U.S. Underwriters in
connection therewith); the cost of printing certificates; the cost and charges
of any transfer agent or registrar; and all other costs and expenses incident
to the performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood, however,
that, except as provided in this Section, Section 8 and Section 10 hereof, each
Selling Stockholder shall pay all its own costs and expenses, including the
fees of its counsel and stock transfer taxes. Except as provided in this
Section, Section 8 and in Section 10, the Underwriters shall pay their own
costs and expenses, including the fees and expenses of their counsel, any
transfer taxes on the Shares which they may sell and the expenses of
advertising any offering of the Shares made by the U.S. Underwriters.
(g) The Company shall, on or prior to each Closing Date, take
such action as shall be necessary to comply with the rules and regulations of
the New York Stock Exchange with respect to the Shares to be purchased on such
date by the U.S. Underwriters.
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(h) During a period of five years from the Effective Date,
the Company shall, upon written request, furnish to the Representatives copies
of all reports or other communications furnished to shareholders and copies of
any reports or financial statements furnished to or filed with the Commission,
the New York Stock Exchange or any other national securities exchange on which
any class of securities of the Company shall be listed.
(i) As soon as practicable after the Effective Date of the
Registration Statement, the Company shall make generally available to its
security holders and to deliver to the U.S. Underwriters an earnings statement
of the Company, conforming with the requirements of Section 11(a) and Rule 158
of the Act, covering a period of at least 12 months beginning after the
Effective Date.
6. Further Agreement of the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, agrees to deliver to the
Representatives prior to the First Closing Date a properly completed and
executed United States Treasury Department Form W-9.
7. Conditions of U.S. Underwriters' Obligations. The
respective obligations of the several U.S. Underwriters hereunder are subject
to the accuracy, when made and as of each Closing Date, of the representations
and warranties of the Company and the Selling Stockholders contained herein, to
the performance by the Company and the Selling Stockholders of their respective
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Registration Statement and any post-effective
amendment thereto has become effective under the Act; if the Registration
Statement has not become effective prior to the Execution Time, unless the U.S.
Underwriters agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 P.M. New York City time on the date of
determination of the public offering price, if such determination occurred at
or prior to 3:00 P.M. New York City time on such date or (ii) 2:00 P.M. on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 P.M. New York City time
on such date; if required under Rule 424(b), the Prospectuses shall have been
timely filed with the Commission in accordance with Section 5(a) hereof, 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 430(A)(a)(3); no Stop Order shall have
been issued and prior to that time no proceeding for that purpose shall have
been initiated or threatened by the Commission; any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectuses or otherwise shall have been complied with; and the Company shall
not have filed with the Commission any amendment or supplement to the
Registration Statement or the Prospectuses without the consent of the
Underwriters. If the Company has elected to rely upon Rule 430A of the Act,
the price of the Shares and any price-related information previously omitted
from the effective Registration Statement pursuant to such Rule 430A shall have
been transmitted to the Commission for filing pursuant to Rule 424(b) of the
Act within the prescribed time period, and prior to the applicable Closing Date
the Company shall have provided evidence satisfactory to the U.S. Underwriters
of such timely filing, or a post-effective amendment providing such information
shall have been prepared, filed and declared effective in accordance with the
requirements of Rule 430A of the Act.
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(b) No U.S. Underwriter or International Manager shall have
discovered after the date hereof and disclosed to the Company on or prior to
such applicable Closing Date that the Registration Statement or the
Prospectuses or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the U.S. Underwriters, is material or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Underwritten Shares, the Registration Statement and the Prospectuses, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby, shall be reasonably satisfactory in all respects to
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the U.S. Underwriters, and the Company
shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(d) On each Closing Date, Winston & Xxxxxx, as special
counsel to the Company, shall have furnished to the U.S. Underwriters their
written opinion addressed to the U.S. Underwriters and dated such Closing Date
in form and substance reasonably satisfactory to the U.S. Underwriters and
their counsel (with customary qualifications and assumptions agreed to by
counsel for the U.S. Underwriters) to the effect that:
(i) the Company and each of its Significant
Subsidiaries have been duly incorporated and are validly existing and
in good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses, requires such qualification, except where the
failure to be so qualified and in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and have all corporate power and authority necessary to own or
hold their respective properties and to conduct the business in which
they are engaged as described in the Prospectus;
(ii) this Agreement and the International Underwriting
Agreement have been duly authorized, executed, and delivered by the
Company, are legally valid and binding obligations of the Company, and
are enforceable against the Company in accordance with their terms,
except to the extent that rights to indemnity or contribution
hereunder and thereunder may be limited by Federal or state securities
laws or the public policy underlying such laws may limit the right to
indemnity and contribution thereunder; no consent, authorization,
approval, order, license, certificate, or permit of or from, or
declaration or filing with, any Federal, state, local or other
governmental authority or any court or other tribunal is required by
the Company for the execution, delivery, or performance of this
Agreement or the International Underwriting Agreement by the Company
(except filings under the Act and filings with the New York Stock
Exchange which have been made and consents, authorizations, permits,
orders and other matters
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required by the National Association of Securities Dealers or under
Blue Sky or state securities laws as to which such counsel need
express no opinion);
(iii) the Underwritten Shares conform to the description
of the Common Stock in the Prospectuses; and the Underwritten Shares
have been listed on the New York Stock Exchange;
(iv) The statements contained in the Prospectuses under
the caption "Certain United States Federal Tax Considerations for
Non-U.S. Holders of Common Stock", insofar as they describe federal
statutes, rules and regulations, constitute a fair summary thereof;
(v) the Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, no
Stop Order has been issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by the
Commission;
(vi) the Registration Statement and the Prospectuses and
any further amendments or supplements thereto made by the Company
prior to each Closing Date (other than the financial statements and
related schedules therein and other financial and statistical
information included in or excluded from the Registration Statement or
the Prospectuses, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the Rules and Regulations and the documents incorporated
by reference therein (other than any financial statements, related
schedules and other financial and statistical information included
therein or excluded therefrom), at the time they were filed with the
Commission, complied as to form in all material respects with the
Exchange Act and the applicable Rules and Regulations (except as
aforesaid).
Notwithstanding the foregoing, the opinion set forth in the
first clause of paragraph (ii) may be subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to creditors' rights generally and to
court decisions with respect thereto and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and no opinion need be expressed as to the availability of
equitable remedies for any breach of any such agreement.
In rendering such opinion, such counsel may (i) state that
their opinion is limited to matters governed by the Federal laws of the United
States of America (to the extent specifically referred to therein), the laws of
the State of New York and the General Corporation Law of the State of Delaware;
and (ii) rely (to the extent such counsel deems proper and specifies in their
opinion), as to matters involving the application of the laws of jurisdictions
other than the State of New York or the United States or the General
Corporation Law of the State of Delaware upon opinions (dated the applicable
Closing Date, addressed to the U.S. Underwriters and in form reasonably
satisfactory to the U.S. Underwriters with signed or conformed copies for each
of the U.S. Underwriters) of counsel acceptable to Xxxxxxx Xxxxxxx & Xxxxxxxx.
Such counsel shall also have furnished to the U.S. Underwriters a written
statement, addressed to the U.S. Underwriters and dated the applicable Closing
Date, in form and substance reasonably satisfactory to the U.S. Underwriters,
to the effect that such counsel participated in conferences with officers and
representatives of the Company, Xxxxxx Xxxxxxxx LLP, the U.S. Underwriters and
Xxxxxxx Xxxxxxx
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& Xxxxxxxx in connection with the preparation of the Registration Statement,
and based on the foregoing and without assuming responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or making any independent check or verification thereof
(relying as to factual matters upon the statements of officers and other
representatives of the Company, the Selling Stockholders and others), no facts
have come to the attention of such counsel which lead them to believe that (I)
the Registration Statement, as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading (other than the information omitted therefrom in reliance on Rule
430A), or (II) each of the Prospectuses as amended or supplemented, as of each
Closing Date, contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading, except that such counsel need not express an opinion
or belief as to any financial statements, schedules, and other financial or
statistical information included in or excluded from the Registration Statement
or the Prospectuses.
(e) On each Closing Date, Xxxxxx X. XxXxxxxx, General Counsel
to the Company, or Xxxxxxx X'Xxxx, corporate counsel to the Company, shall have
furnished to the U.S. Underwriters his written opinion addressed to the U.S.
Underwriters and dated such Closing Date in form and substance reasonably
satisfactory to the U.S. Underwriters (with customary qualifications and
assumptions agreed to by counsel for the U.S. Underwriters) to the effect that:
(i) the Company and each of its Significant
Subsidiaries have been duly incorporated and are validly existing and
in good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses, requires such qualification, except where the
failure to be so qualified and in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and have all corporate power and authority necessary to own or
hold their respective properties and to conduct the business in which
they are engaged as described in the Prospectuses;
(ii) the Company has an authorized capitalization as set
forth in the Prospectuses, and all of the issued shares of capital
stock of the Company (including, without limitation, all of the
Underwritten Shares) have been duly and validly authorized and issued,
are fully paid and nonassessable and conform to the description
thereof contained in the Prospectuses; and all of the issued shares of
capital stock of each subsidiary of the Company owned directly or
indirectly by the Company have been duly and validly authorized and
issued and are fully paid, nonassessable and (except for directors'
qualifying shares) owned directly or indirectly by the Company, free
and clear
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of all liens, encumbrances, equities or claims, except as described in
the Prospectuses; to the best of such counsel's knowledge after due
inquiry and investigation, there is no commitment, plan, or
arrangement to issue, and no outstanding option, warrant, or other
right calling for the issuance of, any share of capital stock of the
Company or of the Company's subsidiaries to any person other than the
Company, or any security or other instrument which by its terms is
convertible into, exercisable for, or exchangeable for capital stock
of the Company or of the Company's subsidiaries, except as may be
described in the Prospectuses or has been disclosed to the U.S.
Underwriters;
(iii) the Underwritten Shares have been listed on the New
York Stock Exchange;
(iv) there is no litigation, arbitration, claim,
governmental or other proceeding or investigation pending or, to the
best of such counsel's knowledge after due inquiry and investigation,
threatened to which the Company or any of its subsidiaries is a party
or to which any of their respective operations, businesses or assets
is the subject which could reasonably be expected to have a material
adverse effect upon the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company
and its subsidiaries taken as a whole; neither the Company nor any of
its subsidiaries is in violation of, or in default with respect to,
any law, rule, regulation, order, judgment, or decree, except as may
be described in the Prospectuses or such as in the aggregate do not
have a significant likelihood of having a material adverse effect upon
the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole;
(v) neither the Company nor any of its subsidiaries is
now in violation or breach of, or in default with respect to, any
material provision of any contract, agreement, instrument, lease or
license, which is material to the Company and its subsidiaries taken
as a whole;
(vi) neither the Company nor any of its subsidiaries is
in violation or breach of, or in default with respect to, any term of
its Certificate of Incorporation or By-laws;
(vii) the execution, delivery and performance of this
Agreement and the International Underwriting Agreement and the sale of
the Shares as contemplated hereby and thereby will not conflict with
or result in a breach or violation in any material respect of any of
the terms and provisions of, or constitute a default under, any
material contract, agreement, instrument, lease, or license known to
such counsel, or violate or result in a breach of any term of the
articles of incorporation (or other charter document) or by-laws of
the Company or any of its subsidiaries, or violate, result in a breach
of, or conflict with in any material respect any law or statute, rule,
or regulation, or any order, judgment, or decree known to such
counsel, that is binding on the Company or any of its subsidiaries or
to which any of their respective operations, businesses or assets are
subject; no consent, authorization, approval, order, license,
certificate or permit of or from, or declaration or filing with any
Federal, state, local or other governmental authority or any court or
other tribunal is required by the Company for the execution, delivery
or
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performance of this Agreement and the International Underwriting
Agreement or for the sale of the Shares as contemplated hereby and
thereby (except filings under the Act which have been made and
consents, authorization, permits, orders and other matters required
under Blue Sky or State securities laws or as may be required by the
laws of any country other than the United States as to which such
counsel need express no opinion);
(viii) any contract, agreement, instrument, lease or
license required to be described in the Registration Statement or the
Prospectuses has been properly described therein; any contract,
agreement, instrument, lease, or license required to be filed as an
exhibit to the Registration Statement has been filed with the
Commission as an exhibit to the Registration Statement or incorporated
therein by reference;
(ix) insofar as statements in the Prospectuses purport
to summarize the status of litigation or the provisions of laws,
rules, regulations, orders, judgments, decrees, contracts, agreements,
instruments, leases, or licenses, such statements have been prepared
or reviewed by such counsel and accurately reflect, in all material
respects, the status of such litigation and provisions purported to be
summarized and are correct in all material respects; and
(x) there are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the voting or
transfer of, any Underwritten Shares pursuant to the Company's
Certificate of Incorporation or By-laws, in each case as amended, or
any agreement or other instrument; and no holders of securities of the
Company have rights to the registration thereof under the Registration
Statement except as set forth in the Prospectuses or, if any such
holders have such rights, such holders have waived such rights;
Notwithstanding the foregoing, the opinion set forth in the
first clause of paragraph (vii) may be subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws now or hereafter in effect relating to creditors' rights generally and to
court decisions with respect thereto and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and no opinion need be expressed as to the availability of
equitable remedies for any breach of any such agreement.
In rendering such opinion, such counsel may (i) state that his
opinion is limited to matters governed by the Federal laws of the United States
of America to the extent specifically referred to therein, the laws of the
State of Michigan and the General Corporation Law of the State of Delaware; and
(ii) rely (to the extent such counsel deems proper and specifies in his
opinion), as to foreign matters involving the application of the laws of
jurisdictions other than the State of Michigan or the United States or the
corporate law of the State of Delaware upon opinions (dated each Closing Date,
addressed to the U.S. Underwriters and in form reasonably satisfactory to the
U.S. Underwriters with signed or conformed copies for each of the U.S.
Underwriters) of counsel acceptable to Xxxxxxx Xxxxxxx & Xxxxxxxx.
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(f) On the First Closing Date, there shall have been
furnished to you the opinion of counsel for each of the Selling Stockholders
(addressed to the Underwriters), dated the Closing Date in form and substance
reasonably satisfactory to the Underwriters to the effect that:
(i) such Selling Stockholder has full right, power and
authority to enter into this Agreement and to perform its obligations
hereunder;
(ii) this Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Stockholder; and
(iii) the execution, delivery and performance of this
Agreement by such Selling Stockholder and the consummation by such
Selling Stockholder of the transactions contemplated hereby will not
conflict with or result in a breach or violation in any material
respect of any of the terms or provisions of, or constitute a default
under, any material 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, nor will such actions result in any violation
in any material respect of the provisions of the partnership agreement
(if any) of such Selling Stockholder or any statute or any order, rule
or regulation known to such counsel of any court or governmental
agency having jurisdiction over such Selling Stockholder or the
property or assets of such Selling Stockholder; and no consent,
approval, authorization or order of, or filing or registration with,
any such court or governmental agency is required for the execution,
delivery and performance of this Agreement by such Selling Stockholder
and the consummation by such Selling Stockholder of the transactions
contemplated hereby, except the registration under the Act of the
Shares, such consents, approvals, authorizations, registrations,
filings 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 or as may be required by the laws of any
country other than the United States, and amendments to filings made
under the Exchange Act.
(g) The Company shall have furnished to the Underwriters on
each Closing Date a certificate, dated such Closing Date, of its President or a
Vice President and its Chief Financial Officer or Treasurer stating that:
(i) the representations, warranties and agreements of
the Company in Section 1 herein are true and correct as of such
Closing Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in Paragraph 7(a) have
been fulfilled; and
(ii) they have carefully examined the Registration
Statement and the Prospectuses and, in their opinion, (A) as of the
Effective Time of the Registration Statement, the Registration
Statement did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) as of its
date, each of the Prospectuses, as amended or supplemented, did not
include any untrue statement of a material fact or
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omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading and (C) since the Effective Date of the
Registration Statement or the date of each Prospectus, as the case may
be, no event has occurred which should have been set forth in a
supplement to or amendment of each Prospectus which has not been set
forth in such a supplement or amendment.
(h) At the Effective Time and on each Closing Date, the
Company shall have furnished to the U.S. Underwriters a letter of Xxxxxx
Xxxxxxxx LLP addressed to the Underwriters and dated such Closing Date and in
form and substance satisfactory to the U.S. Underwriters confirming that they
are independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and stating,
as of the date of such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the U.S. Prospectus, as of a date not more than five
days prior to the date of such letter), the conclusions and findings of such
firm with respect to the financial information and other matters covered by its
letter delivered to the U.S. Underwriters concurrently with the execution of
this Agreement and confirming in all material respects the conclusions and
findings set forth in such prior letter.
(i) The NASD, upon review of the terms of the public offering
of the Underwritten Shares, shall not have objected to the participation by any
of the U.S. Underwriters in such offering or asserted any violation of the
By-Laws of the NASD.
(j) Neither the Company nor any of its subsidiaries (1) shall
have sustained since the date of the latest audited financial statements
included in the U.S. 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 U.S. Prospectus or (2) since
such date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or result of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the U.S. Prospectus, the effect of which, in any such case
described in clause (1) or (2) of this subparagraph, is, in the reasonable
judgment of the U.S. Underwriters, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in the U.S.
Prospectus.
(k) The Shares to be purchased on such Closing Date by the
U.S. Underwriters shall be listed on the New York Stock Exchange.
(l) Each Selling Stockholder (or one or more
attorneys-in-fact on behalf of the Selling Stockholder) shall have furnished to
the Representatives on each Closing Date a certificate, dated such Closing
Date, signed by, or on behalf of, such Selling Stockholder (or the Custodian or
one or more attorneys-in-fact) stating that the representations, warranties and
agreements of such Selling Stockholder contained herein are true and correct as
of such Closing
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Date and that such Selling Stockholder has complied with all agreements
contained herein to be performed by such Selling Stockholder at or prior to
such Closing Date.
All such opinions, certificates, letters and documents
mentioned above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the U.S. Underwriters, and
the Company shall furnish to you conformed copies thereof in such quantities as
you reasonably request.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each U.S. Underwriter and Selling Stockholder
against any loss, claim, damage or liability (or any action in respect
thereof), including without limitation, any legal or other expenses reasonably
incurred by any U.S. Underwriter or Selling Stockholder in connection with
defending or investigating any such action or claim, joint or several, to which
such U.S. Underwriter or such Selling Stockholder may become subject, under the
Act or otherwise, insofar as such loss, claim, damage or liability (or action
in respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, any Prospectus or the Registration
Statement or any Prospectus as amended or supplemented or in any Blue Sky
application or other document executed by the Company specifically for that
purpose or based upon written information furnished by the Company filed in any
state or other jurisdiction in order to qualify any of or all the Shares under
the securities laws thereof (any such application, document or information
being hereinafter referred to as a "Blue Sky Application"), or (ii) the
omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus, any Prospectus or the Registration Statement or any
Prospectus as amended or supplemented or in any Blue Sky Application a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and shall reimburse each U.S. Underwriter or Selling
Stockholder promptly after receipt of invoices from such U.S. Underwriter or
Selling Stockholder for any legal or other expenses as reasonably incurred by
such U.S. Underwriter or Selling Stockholder in connection with investigating,
preparing to defend or defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, further, that the Company shall not be liable pursuant to this
Section 8(a) with respect to any untrue statement or alleged untrue statement
or omission or alleged omission in any Preliminary Prospectus which is
corrected in a Prospectus if the person asserting such loss, claim, damage or
liability purchased Shares from a U.S. Underwriter but was not sent or given a
copy of a Prospectus at or prior to the written confirmation of the sale of
such Shares to such person; and provided, however, that the Company shall not
be liable (x) under this paragraph 8(a) in any such case to the extent, but
only to the extent, that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company through the Representatives by or
on behalf of any U.S. Underwriter or from any Selling Stockholder specifically
for use in the preparation of the Registration Statement, any Preliminary
Prospectus, any Prospectus or the Registration Statement or any Prospectus as
amended or supplemented, or any Blue Sky Application.
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(b) Each Selling Stockholder severally, but not jointly,
shall indemnify and hold harmless the Company and each U.S. Underwriter
against any loss, claim, damage or liability (or any action in respect thereof)
to which the Company or such U.S. Underwriter may become subject, under the Act
or otherwise, insofar as such loss, claim, damage or liability (or action in
respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, any Prospectus or the Registration
Statement or any Prospectus as amended or supplemented or in any Blue Sky
Application, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus any Prospectus or the
Registration Statement or any Prospectus, as amended or supplemented, or in any
Blue Sky Application 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 and shall reimburse the Company or such U.S.
Underwriter promptly after receipt of invoices from the Company or such U.S.
Underwriter for any legal or other expenses as reasonably incurred by the
Company or such U.S. Underwriter in connection with investigating, preparing to
defend or defending against or appearing as a third-party witness in connection
with any such loss, claim, damage, liability or action notwithstanding the
possibility that payments for such expenses might later be held to be improper,
in which case such payments shall be promptly refunded; provided, however, that
such indemnification or reimbursement shall be available in each such case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information concerning such Selling Stockholder
furnished to the Company or such U.S. Underwriter by or on behalf of such
Selling Stockholder specifically for use in the preparation thereof; provided,
further, that no Selling Stockholder shall be liable pursuant to this Section
8(b) with respect to any untrue statement or alleged untrue statement or
omission or alleged omission in any Preliminary Prospectus which is corrected
in a Prospectus if the person asserting such loss, claim, damage or liability
purchased Shares from a U.S. Underwriter but was not sent or given a copy of a
Prospectus at or prior to the written confirmation of the sale of such Shares
to such person; and provided, further, that the aggregate amount of all such
indemnification or reimbursement payable by any Selling Stockholder pursuant to
this Agreement and Section 8(b) of the International Underwriting Agreement
shall in no case exceed the net proceeds to such Selling Stockholder from the
sale of Underwritten Shares.
(c) Each U.S. Underwriter severally, but not jointly, shall
indemnify and hold harmless the Company and each Selling Stockholder against
any loss, claim, damage or liability (or any action in respect thereof) to
which the Company or any Selling Stockholder may become subject, under the Act
or otherwise, insofar as such loss, claim, damage or liability (or action in
respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, any Prospectus or the Registration
Statement or any Prospectus as amended or supplemented, or in any Blue Sky
Application, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, any Prospectus or the
Registration Statement or any Prospectus as amended or supplemented, or in any
Blue Sky Application a material fact required to be stated therein or necessary
to make the statements therein not misleading and shall reimburse the Company
or such Selling Stockholder promptly after receipt of invoices from the Company
or such Selling Stockholder for any legal or other expenses as reasonably
incurred by
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the Company or such Selling Stockholder in connection with investigating,
preparing to defend or defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, however, that such indemnification or reimbursement shall be
available in each such case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company or such Selling Stockholder through you by or on behalf of such
U.S. Underwriter specifically for use in the preparation thereof.
(d) Promptly after receipt by any indemnified party under
subsection (a), (b) or (c) above of notice of any claim or the commencement of
any action, the 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 claim or the commencement of that action;
provided, however, that the failure so to notify the indemnifying party shall
not relieve it from any liability which it may have under this Section 8 except
to the extent it has been prejudiced in any material respect by such failure or
from any liability which it may have to an indemnified party otherwise than
under this Section 8. If any such claim or action shall be brought against any
indemnified party and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under such
subsection for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; except that any indemnified party shall have the right
to employ its own counsel to represent it if, in the reasonable judgment of
such indemnified party (based on advice of counsel), it is advisable for such
indemnified party to be represented by separate counsel because there may be
legal defenses available to it or other indemnified parties that are
inconsistent with those available to the indemnifying party, and in that event
the fees and expenses of such separate counsel shall be paid by the
indemnifying party.
(e) If the indemnification provided for in this Section 8 is
unavailable to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Selling Stockholders
and the U.S. Underwriters from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, the
Selling Stockholders and the U.S. Underwriters in connection with the
statements or omissions that 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 U.S. Underwriters, on the
other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares (after
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underwriting discounts and commissions but before deducting other expenses)
received by the Selling Stockholders bear to the total underwriting discounts
and commissions received by the U.S. Underwriters, in each case as set forth in
the table on the cover page of the U.S. Prospectus (with the estimated expenses
allocated pro rata among the Shares and the International Shares). Relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company, the Selling Stockholders or the U.S. Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company, the Selling
Stockholders and the U.S. Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were to be
determined by pro rata allocation (even if the U.S. Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to in the first
sentence of this subsection (e). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating, preparing to defend or
defending against any action or claim which is the subject of this subsection
(e). Notwithstanding the provisions of this subsection (e), (i) no U.S.
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 writer has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii)
notwithstanding the provisions of this subsection (e), no Selling Stockholder
shall be required to contribute any amount in excess of the amount by which the
amount of net proceeds received by such Selling Stockholder from the sale by
such Selling Stockholder of its portion of the Shares pursuant to this
Agreement exceeds the amount of any damages such Selling Stockholder 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 U.S. Underwriters' obligations in this subsection (e)
to contribute are several in proportion to their respective underwriting
obligations and not joint. Each party entitled to contribution agrees that
upon the service of a summons or other initial legal process upon it in any
action instituted against it in respect of which contribution may be sought, it
shall promptly give written notice of such service to the party or parties from
whom contribution may be sought, but the omission so to notify such party or
parties of any such service shall not relieve the party from whom contribution
may be sought for any obligation it may have hereunder or otherwise (except as
specifically provided in subsection (d) hereof).
(f) The obligations of the Company and the Selling
Stockholders under this Section 8 shall be in addition to any liability which
the Company and the Selling Stockholders may otherwise have, and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company, any Selling Stockholder or any U.S. Underwriter within the meaning of
the Act; and the obligations of the U.S. Underwriters under this Section 8
shall be in addition to any liability that the respective U.S. Underwriters may
otherwise have, and shall extend, upon the same terms and conditions, to each
director of the Company (including any
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person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) or any Selling Stockholder, to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company or a Selling Stockholder within the
meaning of the Act.
9. Substitution of U.S. Underwriters. If, on either Closing
Date, any U.S. Underwriter defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting U.S. Underwriters shall be
obligated to purchase the Shares which the defaulting U.S. Underwriter agreed
but failed to purchase on such Closing Date in the respective proportions which
the number of Firm Shares set opposite the name of each remaining
non-defaulting U.S. Underwriter in Schedule 1 hereto bears to the total number
of Firm Shares set opposite the names of all the remaining non-defaulting U.S.
Underwriters in Schedule 1 hereto; provided, however, that the remaining
non-defaulting U.S. Underwriters shall not be obligated to purchase any of the
Shares on such Closing Date if the total number of Shares which the defaulting
U.S. Underwriter or U.S. Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Shares to be purchased on such
Closing Date, and any remaining non-defaulting U.S. Underwriter shall not be
obligated to purchase more than 110% of the number of Shares which it agreed to
purchase on such Closing Date pursuant to the terms of Section 3. If the
foregoing maximums are exceeded, the remaining non-defaulting U.S.
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Shares to be
purchased on such Closing Date. If the remaining non-defaulting U.S.
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Shares which the defaulting U.S. Underwriter or U.S.
Underwriters agreed but failed to purchase on such Closing Date, this Agreement
(or, with respect to the Option Closing Date, the obligation of the U.S.
Underwriters to purchase, and of the Company to sell, the Option Shares) shall
terminate without liability on the part of any non-defaulting U.S. Underwriter
or the Company or the Selling Stockholders, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 5(f) and 10. As used in this Agreement, the term "U.S. Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases Firm Shares which a defaulting U.S. Underwriter agreed but
failed to purchase.
Nothing contained herein shall relieve a defaulting U.S.
Underwriter of any liability it may have to the Company and the Selling
Stockholders for damages caused by its default. If other underwriters are
obligated or agree to purchase the Shares of a defaulting or withdrawing U.S.
Underwriter, either the Representatives, the Company or the Selling
Stockholders may postpone the Closing Date for up to seven full Business Days
in order to effect any changes that in the opinion of counsel for the U.S.
Underwriters, the Company or the Selling Stockholders may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
10. Effective Date and Termination. (a) This Agreement
shall become effective at 11:00 A.M., New York City time, on the first full
Business Day following the date hereof, or at such earlier time after the
Registration Statement becomes effective as you shall first release the Firm
Shares for sale to the public. You shall notify the Company immediately after
you have
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taken any action which causes this Agreement to become effective. For purposes
of this Agreement, the release of the public offering of the Firm Shares for
sale to the public shall be deemed to have been made when you release, by
telecopy or otherwise, firm offers of the Firm Shares to securities dealers or
release for publication a newspaper advertisement relating to the Firm Shares,
whichever occurs first.
(b) From the date of this Agreement until the First Closing
Date, this Agreement may be terminated by you in your absolute discretion by
giving notice as hereinafter provided to the Company and the Selling
Stockholders, if (i) the Company shall have failed, refused or been unable, at
or prior to such Closing Date, to perform any agreement on its part to be
performed hereunder, (ii) any other condition to the obligations of the U.S.
Underwriters hereunder (other than the conditions set forth in Section 7(i)
hereof) is not fulfilled, (iii) there occurs any change, or any development
involving a prospective change, in or affecting the financial condition of the
Company or its subsidiaries, which in your judgment, materially impairs the
investment quality of the Shares; (iv) there is any downgrading in the rating
of any debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act or
Rule 15c3-1 under the Exchange Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating), (v) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, or minimum prices shall have
been established on such exchange by the Commission, or by such exchange or
other regulatory body or governmental authority having jurisdiction, (vi) any
banking moratorium shall have been declared by Federal or New York governmental
authorities, (vii) there is an outbreak or escalation of hostilities involving
the United States on or after the date hereof, or the United States is or
becomes engaged in hostilities which result in the declaration of a national
emergency or war, the effect of which, in your judgment, makes it inadvisable
or impractical to proceed with the completion of the sale of or any payment for
the Shares on the terms and in the manner contemplated in the Prospectuses, or
(viii) there shall have been such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such), in
your judgment, as to make it inadvisable or impractical to proceed with the
delivery of the Shares. Any termination of this Agreement pursuant to this
Section 10 shall be without liability on the part of the Company, any Selling
Stockholder or any U.S. Underwriter, except as otherwise provided in Section
5(f), Section 8 and Section 10 of this Agreement.
Any notice referred to above may be given at the address
specified in Section 12 hereof in writing or by telecopier, telex or telephone,
and if by telecopier, telex or telephone, shall be immediately confirmed in
writing.
If notice shall have been given pursuant to this Section 10
preventing this Agreement from becoming effective or if the U.S. Underwriters
shall decline to purchase the Shares for any reason permitted under this
Agreement, the Company shall reimburse the U.S. Underwriters for the
reasonable fees and expenses of their counsel and for such other out-of-pocket
expenses as shall have been incurred by them in connection with this Agreement
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and the proposed purchase of the Shares, and upon demand the Company shall pay
the full amount thereof to the U.S. Underwriters.
11. Survival of Certain Provisions. The agreements contained
in Section 8 hereof and the representations, warranties and agreements of the
Company contained in Sections 1 and 5 hereof and the Selling Stockholder
contained in Sections 2 and 6 hereof shall survive the delivery of the Shares
to the U.S. Underwriters hereunder and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
12. Notices. Except as otherwise provided in the Agreement,
(a) whenever notice is required by the provisions of this Agreement to be given
to the Company, such notice shall be in writing or by telecopy addressed to the
Company at the address of the Company set forth in the Registration Statement,
Attention: Xxxxx X. Xxxxxxxxxxxx; (b) whenever notice is required by the
provisions of this agreement to be given to the Selling Stockholders, such
notice shall be in writing or by telecopy addressed to Three World Financial
Center (18th Floor), New York, New York 10285, Attention: Xxxx Xxxxxxxxxx; and
(c) whenever notice is required by the provisions of this Agreement to be given
to the several U.S. Underwriters, such notice shall be in writing or by
telecopy addressed to you, in care of Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department.
13. Information Furnished by U.S. Underwriters. The U.S.
Underwriters severally confirm that the statements set forth in the last
paragraph of the cover page with respect to the public offering of the Shares
and under the caption "Underwriting" in any Preliminary Prospectus and in the
Prospectuses are correct and constitute the written information furnished by or
on behalf of any U.S. Underwriter referred to in paragraph (c) of Section 1
hereof and in paragraphs (a) and (c) of Section 8 hereof.
14. Information Furnished by Selling Stockholders. Each of
the Selling Stockholders severally confirm that the statements with respect to
such Selling Stockholder set forth under the caption "Selling Stockholders" in
any Preliminary Prospectus and in the Prospectuses are correct and constitute
the only written information furnished by or on behalf of the Selling
Stockholder pursuant to Section 8(b) hereof.
15. Parties. This Agreement shall inure to the benefit of
and binding upon the several U.S. Underwriters, the Company, the Selling
Stockholders and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Company
and the Selling Stockholders contained in this Agreement shall also be deemed
to be for the benefit of the person or persons, if any, who control any U.S.
Underwriter within the meaning of Section 15 of the Act and for the benefit of
any International Manager (and controlling persons thereof) who offers or sells
any Shares in accordance with the terms of the Agreement Between U.S.
Underwriters and International Managers and (b) the indemnity agreement of the
U.S. Underwriters contained in Section 8 hereof shall be deemed to be for the
benefit of directors of the Company, officers of the Company who signed the
Registration Statement, any person controlling the Company within the meaning
of Section 15 of the Act, the
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directors of each Selling Stockholder, the officers of each Selling Stockholder
and any person controlling any Selling Stockholder with the meaning of Section
15 of the Act. Nothing in this Agreement shall be construed to give any
person, other than the persons referred to in this paragraph, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
16. Compliance with Conduct Rule 2720 of NASD By-Laws. Each
U.S. Underwriter agrees, severally and not jointly, that in accordance with
Conduct Rule 2720 of the By-Laws of the NASD, a transaction in Shares issued by
the Company shall not be executed by such U.S. Underwriter in a discretionary
account without the prior specific written approval of the customer.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without respect
to choice of law principles thereof.
18. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
If the foregoing correctly sets forth the agreement among the
Company, the Selling Stockholders and the U.S. Underwriters, please indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
XXXX CORPORATION
By:
----------------------
Name:
Title:
XXXXXX BROTHERS MERCHANT BANKING
PORTFOLIO PARTNERSHIP L.P., as Selling
Stockholder
By: LBI Group, Inc.
By: ----------------------
Name:
Title:
31
31
XXXXXX BROTHERS CAPITAL PARTNERS II, L.P., as
Selling Stockholder
By: Xxxxxx Brothers Holdings Inc.
By:
-----------------------------
Name:
Title:
XXXXXX BROTHERS OFFSHORE INVESTMENT
PARTNERSHIP L.P., as Selling Stockholder
By: Xxxxxx Brothers Offshore Partners Ltd
By:
------------------------------
Name:
Title:
XXXXXX BROTHERS OFFSHORE INVESTMENT
PARTNERSHIP - JAPAN L.P., as Selling Stockholder
By: Xxxxxx Brothers Offshore Partners Ltd.
By:
------------------------------
Name:
Title:
32
32
Accepted:
XXXXXX BROTHERS INC.
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXX XXXXXXX CO. INCORPORATED
SALOMON BROTHERS INC
XXXXXXXX XXXXXXXX & CO. INCORPORATED
For themselves and as Representatives
for each of the several U.S. Underwriters
named in Schedule I hereto
By: XXXXXX BROTHERS INC.
By: _____________________________
Name:
Title:
33
SCHEDULE I
U.S. Underwriting Agreement dated _______________, 1997
Number of Firm
Shares to be
U.S. Underwriter Purchased
---------------- --------------
Xxxxxx Brothers Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
Xxxxxxxx Xxxxxxxx & Co. Incorporated
34
SCHEDULE II
U.S. Underwriting Agreement dated _________________, 1997
Number of Firm
Selling Stockholder Shares to be Sold
------------------- -----------------
Xxxxxx Brothers Merchant Banking Portfolio Partnership
X.X.
Xxxxxx Brothers Capital Partners II, X.X.
Xxxxxx Brothers Offshore Investment Partnership X.X
Xxxxxx Brothers Offshore Investment Partnership-Japan
L.P
