EXHIBIT 1.1
[10,000,000 Shares]
Young & Rubicam Inc.
Common Stock
UNDERWRITING AGREEMENT
November __, 1998
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
ING BARING XXXXXX XXXX LLC
XXXXXXX XXXXX XXXXXX INC.
As representatives of the
several Underwriters
named in Schedule I hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders of Young & Rubicam Inc., a Delaware corporation
(the "COMPANY"), named in Schedule II hereto (the "Y&R SELLING STOCKHOLDERS")
severally propose to sell to the several Underwriters (as defined below) an
aggregate of [5,180,647] shares of the Company's Common Stock, par value $.01
per share ("COMMON STOCK"), certain stockholders of the Company named in
Schedule III (a) hereto (the "H&F SELLING STOCKHOLDERS") severally propose to
sell to the several Underwriters an aggregate of [4,770,493] shares of Common
Stock and BearTel Corp. ("BEARTEL" and together with the Y&R Selling
Stockholders and the H&F Selling Stockholders, the "SELLING STOCKHOLDERS")
proposes to sell to the several Underwriters an aggregate of [48,860] shares of
Common Stock. The shares of Common Stock to be sold by the Y&R Selling
Stockholders are hereinafter called the "Y&R SELLING STOCKHOLDER SHARES," and,
together with the shares of Common Stock to be sold by BearTel and the H&F
Selling Stockholders, the "FIRM SHARES."
It is understood that, subject to the conditions hereinafter stated,
[10,000,000] Firm Shares (the "FIRM SHARES") will be sold to the several
Underwriters named in Schedule I hereto (the "UNDERWRITERS") in connection with
the offering and sale of such Firm Shares. Bear, Xxxxxxx & Co. Inc., Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation, Xxxxxxx, Sachs & Co., ING Baring
Xxxxxx Xxxx LLC and Xxxxxxx Xxxxx Barney Inc. shall act as representatives (the
"REPRESENTATIVES") of the several Underwriters.
The individuals or entities listed on Schedule IV hereto (the "OPTION
SELLING STOCKHOLDERS") also severally propose to issue and sell to the several
Underwriters not more than an additional [1,500,000] shares of Common Stock (the
"ADDITIONAL SHARES"), if requested by the Underwriters as provided in Section 2
hereof. The Firm Shares and the Additional Shares are herein collectively called
the "SHARES."
SECTION 1. Registration Statement and Prospectus. The Company has filed
with the Securities and Exchange Commission (the "COMMISSION") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "ACT"), a
registration statement on Form S-1, including a form of prospectus, relating to
the Shares. The registration statement, as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the "REGISTRATION STATEMENT;" and the
prospectus in the form first filed pursuant to Rule 424(b) under the Act is
hereinafter referred to as the "PROSPECTUS." If the Company has filed or is
required pursuant to the terms hereof to file a registration statement pursuant
to Rule 462(b) under the Act registering additional shares of Common Stock (a
"RULE 462(B) REGISTRATION STATEMENT"), then, unless otherwise specified, any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462(b) Registration Statement.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the
basis of the representations and warranties contained in this Agreement (the
"Agreement"), and subject to its terms and conditions, (i) each Selling
Stockholder agrees, severally and not jointly, to sell the number of Firm
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Shares set forth opposite such Selling Stockholder's name in Schedule II or
Schedule III hereto, as the case may be, and (ii) each Underwriter agrees,
severally and not jointly, to purchase from each Selling Stockholder at a price
per Share of $_____ (the "PURCHASE PRICE") the number of Firm Shares (subject to
such adjustments to eliminate fractional shares as you may determine) that bears
the same proportion to the total number of Firm Shares to be sold by such
Selling Stockholder as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Option Selling
Stockholders severally agree to sell the Additional Shares and the Underwriters
shall have the right to purchase, severally and not jointly, up to [1,500,000]
Additional Shares from the Option Selling Stockholders at the Purchase Price.
Additional Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. The
Underwriters may exercise their right to purchase Additional Shares in whole or
in part from time to time by giving written notice thereof to the Option Selling
Stockholders and the Company within 30 days after the date of this Agreement.
The Representatives shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof, which date shall be a business day (i) no earlier than two business
days after such notice has been given (and, in any event, no earlier than the
Closing Date (as hereinafter defined)) and (ii) no later than ten business days
after such notice has been given. If any Additional Shares are to be purchased,
(i) each Option Selling Stockholder agrees to sell to the Underwriters the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as the . Representatives may determine) specified in such notice
multiplied by a fraction the numerator of which is the number of Additional
Shares set forth opposite each such Option Selling Stockholder's name on
Schedule IV hereto and the denominator of which is the total number of
Additional Shares and (ii) each Underwriter, severally and not jointly, agrees
to purchase from the Option Selling Stockholders, the number of Additional
Shares (subject to such adjustments to eliminate fractional shares as the
Representatives may determine) which bears the same proportion to the total
number of Additional Shares to be purchased from the Option Selling
Stockholders, as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
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The Company and each Selling Stockholder hereby agree not to (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers all or a portion of the economic consequences associated with the
ownership of any Common Stock (regardless of whether any of the transactions
described in clause (i) or (ii) is to be settled by the delivery of Common
Stock, or such other securities, in cash or otherwise), except to the
Underwriters pursuant to this Agreement, for a period of 120 days after the date
of the Prospectus without the prior written consent of Bear, Xxxxxxx & Co. Inc.
and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (and in the case of any
Management Investor (as defined in the Prospectus), the Company).
Notwithstanding the foregoing, during such period (i) the Company may grant
stock options or stock awards pursuant to any of the Company's existing stock
option plans, (ii) the Company may issue shares of Common Stock upon the
exercise of an option, a warrant or the Rights (as defined in the Prospectus) or
the conversion of a security outstanding on the date hereof, (iii) each H&F
Selling Stockholder may transfer shares of Common Stock to a partner or an
affiliate of such H&F Selling Stockholder in a transaction not involving a
public sale, distribution or other disposition of such Common Stock provided
that the transferee agrees in writing to be bound by the same restrictions and
(iv) the Company may issue, offer and sell shares of Common Stock or securities
convertible, exercisable or exchangeable therefor in transactions not involving
a public offering as consideration for the acquisition (pursuant to merger or
otherwise) of one or more entities provided that each recipient of such
securities agrees in writing to be bound by the restrictions set forth in this
paragraph. The Company also agrees not to file any registration statement with
respect to any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock for a period of 120 days after the
date of the Prospectus without the prior written consent of Bear, Xxxxxxx & Co.
Inc. and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation. In addition, each
Selling Stockholder agrees that, for a period of 120 days after the date of the
Prospectus without the prior written consent of Bear, Xxxxxxx & Co. Inc. and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, it will not make any demand
for, or exercise any right with respect to, the registration of any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock. The Company shall, prior to or concurrently with the execution
of this Agreement, deliver an agreement executed by the trustees of the
Management Voting Trust (as defined in the Prospectus) to the effect that such
trustees will not permit the
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Management Voting Trust to, during the period commencing on the date the
trustees of the Management Voting Trust sign such agreement and ending 120 days
after the date of the Prospectus, without the prior written consent of Bear,
Xxxxxxx & Co. Inc. and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, (A)
engage in any of the transactions described in the first sentence of this
paragraph or (B) make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock. Each entity listed on Schedule V
hereto shall, prior to or concurrently with the execution of this Agreement,
execute and deliver an agreement to the effect that such entity shall not,
during the period commencing on the date such entity signs such agreement and
ending 120 days after the date of the Prospectus, without the prior written
consent of Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, (A) engage in any of the transactions described in the first
sentence of this paragraph or (B) make any demand for, or exercise any right
with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
SECTION 3. Terms of Public Offering. The Company and the Selling
Stockholders are advised by you that the Underwriters propose (i) to make a
public offering of their respective portions of the Shares as soon after the
execution and delivery of this Agreement as in your judgment is advisable and
(ii) initially to offer the Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as Bear, Xxxxxxx & Co. Inc. shall request no later than
two business days prior to the Closing Date or the applicable Option Closing
Date (as defined below), as the case may be. The Shares shall be delivered by or
on behalf of the Selling Stockholders, with any transfer taxes thereon duly paid
by the respective Selling Stockholders, to Bear, Xxxxxxx & Co. Inc. through the
facilities of The Depository Trust Company ("DTC"), for the respective accounts
of the several Underwriters, against payment to the Selling Stockholders of the
Purchase Price therefor by wire transfer of Federal or other funds immediately
available in New York City. The certificates representing the Shares shall be
made available for inspection not later than 9:30 A.M., New York City time, on
the business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be, at the office of DTC or its designated custodian (the
"DESIGNATED OFFICE"). The time and date of delivery and payment for the Firm
Shares shall be 10:00 A.M., New York
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City time, on [November __, 1998] or such other time on the same or such other
date as Bear, Xxxxxxx & Co. Inc. and the Company shall agree in writing. The
time and date of delivery and payment for the Firm Shares are hereinafter
referred to as the "CLOSING DATE." The time and date of delivery and payment for
any Additional Shares to be purchased by the Underwriters shall be 10:00 A.M.,
New York City time, on the date specified in the applicable exercise notice
given by the Representatives pursuant to Section 2 or such other time on the
same or such other date as Bear, Xxxxxxx & Co. Inc. and the Company shall agree
in writing. The time and date of delivery and payment for any Additional Shares
are hereinafter referred to as an "OPTION CLOSING DATE."
The documents to be delivered on the Closing Date or an Option Closing Date
on behalf of the parties hereto pursuant to Section 9 of this Agreement shall be
delivered at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the Shares shall be delivered at the
Designated Office, all on the Closing Date or such Option Closing Date, as the
case may be.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice
in writing, of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information, of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, when any amendment to the
Registration Statement becomes effective, if the Company is required to file a
Rule 462(b) Registration Statement after the effectiveness of this Agreement,
when the Rule 462(b) Registration Statement has become effective and of the
happening of any event during the period referred to in Section 5(d) below, as a
result of which it is necessary to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein in light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the Company
will use its best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time.
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(b) To furnish to you three signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each other Underwriter such number of
conformed copies of the Registration Statement as so filed and of each amendment
to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
reasonably satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been advised
and as to which you shall not have had an opportunity to comment; and, during
such period, to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which may be necessary or advisable in connection
with the distribution of the Shares by you, and to use its best efforts to cause
any such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the reasonable opinion of counsel for the Underwriters a prospectus
is required by law to be delivered in connection with sales by an Underwriter or
a dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the reasonable opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statement of
a material fact or omit to state a material fact, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the reasonable opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not in the light of the circumstances when it is
so delivered, include any untrue statement of a material fact or omit to state a
material fact, or so that the Prospectus will comply with
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applicable law, and to furnish to each Underwriter and to any dealer as many
copies thereof as such Underwriter or dealer may reasonably request.
(f) To make generally available to you and to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending
December 31, 1999 that shall satisfy the provisions of Section 11(a) of the Act.
(g) During the period ending three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock (for so long as
the Common Stock is registered under Section 12 of the Exchange Act (as defined
herein)) or furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed and such
other publicly available information concerning the Company and its subsidiaries
as you may reasonably request.
(h) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
reasonable expenses incident to the performance of the Company's obligations
under this Agreement, including: (i) the reasonable fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Act and all other
reasonable fees and expenses in connection with the preparation, printing,
filing and distribution of the Registration Statement (including financial
statements and exhibits), any preliminary prospectus, the Prospectus and all
amendments and supplements to any of the foregoing, including the mailing and
delivering of copies thereof to the Underwriters and dealers in the quantities
specified herein, (ii) all costs of printing or producing this Agreement and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Shares, (iii) all expenses in connection with the preparation of
the Preliminary and Supplemental Blue Sky Memoranda (including the filing fees
and the fees and disbursements of counsel for the Underwriters in connection
with such memoranda relating thereto), (iv) the filing fees in connection with
the review and clearance of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) the cost of printing certificates
representing the Shares, (vi) the costs and charges of any transfer agent,
registrar and/or depositary, and (vii) 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, but in each of cases (i) through (vii)
excluding all underwriting discounts and commissions and all stock transfer
taxes applicable to the sale of any
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Shares. The provisions of this Section shall not supersede or otherwise affect
any separate agreement that the Company and any Selling Stockholders may have
for allocation of such expenses among themselves.
(i) To use its best efforts to list, subject to notice of issuance, the
Shares on the NYSE.
(j) If the Registration Statement at the time of the effectiveness of this
Agreement does not cover all of the Shares, to file a Rule 462(b) Registration
Statement with the Commission registering the Shares not so covered in
compliance with Rule 462(b), such that the Rule 462(b) Registration Statement
will be effective by 10:00 P.M., New York City time, on the date of this
Agreement (or by 9:30 A.M., New York City time on the day following the date of
this Agreement) and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
(l) For a period of 120 days after the date of the Prospectus, the Company
agrees to enforce all of the Company's rights under the Standstill and Lock-up
Agreements and Selling Stockholders' Irrevocable Powers of Attorney, and will
not give to any party to any such agreement, a waiver of any of his, her or its
obligations under such agreements, or excuse any breach of any such obligations,
except in each case, with the prior written consent of Bear, Xxxxxxx & Co. Inc.
and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter and the H&F Selling Stockholders
that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); and no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the
Commission.
(b) (i) The Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement),
when it became effective, did not contain and, as amended by any post-effective
amendment, if applicable, will not, as of the applicable effective date,
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contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; (ii) the Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement) and the Prospectus comply, and any amendments to the
Registration Statement when they become effective and any amendments or
supplements to the Prospectus as of the applicable filing date will comply in
all material respects with the Act; (iii) if the Company is required to file a
Rule 462(b) Registration Statement after the effectiveness of this Agreement,
such Rule 462(b) Registration Statement and any post-effective amendments
thereto, when they become effective (A) will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (B) will comply
in all material respects with the Act; and (iv) the Prospectus does not contain
and, as amended or supplemented, if applicable, as of the Closing Date will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing through you expressly for
use therein.
(c) Each preliminary prospectus filed as part of Amendment No. 1 or
Amendment No. 2 to the registration statement as originally filed, or filed
pursuant to Rule 424 under the Act, when so filed, complied in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus filed as part of the registration statement as originally
filed, or filed pursuant to Rule 424 under the Act, based upon information
relating to any Underwriter furnished to the Company in writing through you
expressly for use therein. The Company acknowledges for all purposes under this
Agreement that the statements set forth in the last paragraph of the prospectus
front cover page and under the caption "Underwriting" (other than in the fifth,
sixth, seventh and eighth paragraphs of such section) constitute the only
written information furnished to the Company by any Underwriter expressly for
use in the Registration Statement, any preliminary prospectus and the
Prospectus.
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(d) Each of the Company and each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties, and each of the Company and its subsidiaries
is duly qualified and is in good standing as a foreign corporation authorized to
do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except in each
case where the failure to be in good standing or to be so qualified would not
have a Material Adverse Effect (as defined herein). As used herein, the term
"SUBSIDIARY" has the meaning set forth in Rule 1-02(x) of Regulation S-X. Young
& Rubicam L.P. ("YRLP") has been duly organized, is validly existing and in good
standing as a limited partnership under the laws of the State of Delaware and
has the partnership power and authority to carry on its business as it is
currently conducted and to own, lease and operate its properties, and YRLP is
duly qualified and is in good standing as a foreign partnership authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be in good standing or to be so qualified would not have a Material
Adverse Effect. For United States federal income tax purposes, YRLP has been and
is currently classified as a partnership, and not as an association taxable as a
corporation.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or YRLP relating to or entitling any person to purchase or otherwise
to acquire any shares of the capital stock of the Company or any partnership
interest in YRLP, except as otherwise disclosed in the Registration Statement.
(f) (i) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders, other than the
Option Shares (as defined below)) have been duly authorized and validly issued
and are fully paid, non-assessable and not subject to any preemptive or similar
rights; and (ii) the Option Shares have been duly authorized and on the Closing
Date will be validly issued, fully paid and nonassessable and not subject to any
preemptive or similar rights.
(g) All of the outstanding partnership interests in YRLP have been duly
authorized and validly issued and are fully paid and non-assessable, and are
owned by the Company, directly or indirectly through one or more subsidiaries,
free and clear of any security interest, claim, lien, encumbrance or adverse
interest of any
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nature (each, a "Lien") other than Liens securing indebtedness incurred pursuant
to the New Credit Facility (as defined in the Prospectus).
(h) The authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in the
Prospectus.
(i) Neither the Company nor any of its subsidiaries is (i) in violation of
its respective charter, by-laws or partnership agreement, as the case may be, or
(ii) in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease 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 or their respective
property is bound, which default in clause (ii) would have a material adverse
effect on the business, financial condition or results of operation of the
Company and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(j) The execution and delivery of this Agreement by the Company, the
compliance by the Company with all the provisions hereof and the performance by
the Company of its obligations hereunder will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as have been obtained or may be
required under the Act or the securities or Blue Sky laws of the various
states), (ii) (x) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company, (y)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the organizational documents of YRLP or (z) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
any indenture, loan agreement, mortgage, lease or other agreement or instrument
to which the Company or YRLP is a party or by which the Company or YRLP or their
respective property is bound, which conflict, breach or default would have a
Material Adverse Effect, (iii) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, YRLP or their respective
property, which violation or conflict would have a Material Adverse Effect or
(iv) result in the suspension, termination or revocation of any Authorization
(as defined below) of the Company or YRLP or any other impairment of the rights
of the holder of any such Authorization, which suspension, termination,
revocation or impairment would have a Material Adverse Effect.
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(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or YRLP is a party or
to which any of their respective property is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described; nor are there any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
so described or filed as required.
(l) Neither the Company nor any of its subsidiaries has violated any
applicable foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a Material Adverse Effect.
(m) Each of the Company and YRLP has such permits, licenses, consents,
exemptions, franchises, authorizations and other approvals (each, an
"AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Company and
YRLP is in compliance with all the terms and conditions thereof and with the
rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company or any of its subsidiaries; in
each case except as would not have a Material Adverse Effect.
(n) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
13
for clean-up, closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
(o) This Agreement has been duly authorized, executed and delivered by the
Company.
(p) PricewaterhouseCoopers LLP are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(q) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with the related schedule and notes, present fairly in all material respects the
consolidated financial position, results of operations and cash flows of the
Company and its subsidiaries on the basis stated therein at the respective dates
or for the respective periods to which they apply; such statements and the
related schedule and notes have been prepared in accordance with United States
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; the supporting schedules, if any,
included in the Registration Statement present fairly in accordance with United
States generally accepted accounting principles the information required to be
stated therein; and the other financial and statistical information and data set
forth under the captions "Prospectus Summary - Summary Consolidated Financial
Data," "Capitalization" and "Selected Consolidated Financial Data" in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) have been accurately derived from such financial statements and the
books and records of the Company.
(r) The Company is not and, after giving effect to the offering and sale of
the Shares as described in the Prospectus, will not be, an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended.
(s) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company or to require the Company
to include such securities with the Shares registered pursuant to the
Registration Statement.
14
(t) Since the respective dates as of which information is given in the
Prospectus, other than as set forth in the Prospectus, (i) there has not
occurred any material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change in the capital stock or in the long-term debt of the Company or any of
its subsidiaries and (iii) neither the Company nor any of its subsidiaries has
incurred any material liability or obligation, direct or contingent.
(u) Each certificate signed by any officer of the Company and delivered to
the Underwriters or counsel for the Underwriters hereunder shall be deemed to be
a representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
(v) The Company and YRLP own or possess, or can acquire on reasonable
terms, all patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names ("INTELLECTUAL PROPERTY") referenced or described in the Prospectus
as being owned by or licensed to them (it being understood that the Company and
its subsidiaries do not own or possess, and do not have the right to acquire,
any intellectual property of clients, customers or other third parties that is
employed by the Company and its subsidiaries in connection with the business now
operated by them) except where the failure to own or possess or otherwise be
able to acquire such intellectual property would not, singly or in the
aggregate, have a Material Adverse Effect; and neither the Company nor YRLP has
received any written notice of infringement of or conflict with asserted rights
of others with respect to any of such intellectual property which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect.
(w) The Company and YRLP are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; and neither the
Company nor YRLP (i) has received written notice from any insurer or agent of
such insurer that substantial capital improvements or other material
expenditures will have to be made in order to continue such insurance or (ii)
has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage
15
expires or to obtain similar coverage from similar insurers at a cost that would
not have a Material Adverse Effect.
(x) The Company and YRLP have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned
by them which is material to the business of the Company and YRLP, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as would not result in a Material Adverse
Effect; and any real property and buildings held under lease by the Company and
YRLP are held by them under valid, subsisting and enforceable leases with such
exceptions as would not result in a Material Adverse Effect.
(y) There is no (i) significant unfair labor practice complaint, grievance
or arbitration proceeding pending or threatened against the Company or YRLP
before the National Labor Relations Board or any state or local labor relations
board, (ii) strike, labor dispute, slowdown or stoppage pending or, to the
knowledge of the Company, threatened against the Company or YRLP or (iii) union
representation question existing with respect to the employees of the Company
and YRLP, except for such actions specified in clause (i), (ii) or (iii) above,
which, singly or in the aggregate, would not have a Material Adverse Effect. To
the Company's knowledge, no collective bargaining organizing activities are
taking place with respect to the Company or YRLP, which would, singly or in the
aggregate, have a Material Adverse Effect.
(z) The Company and YRLP maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with United States generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) All material tax returns required to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its
16
subsidiaries have been paid, other than those being contested in good faith and
for which adequate reserves have been provided, if required by United States
generally accepted accounting principles.
(bb) No subsidiary of the Company (excluding YRLP), is a "significant
subsidiary" within the meaning of Rule 1-02(w) of Regulation S-X.
SECTION 7. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter, solely in such Selling Stockholder's capacity as a Selling
Stockholder, that:
(a) Such Selling Stockholder (i) is, and on the Closing Date will be, the
lawful owner of the Shares (other than that number of Shares, if any, listed
opposite the name of such Selling Stockholder under the heading "Option Shares"
in Schedule II hereto (with respect to each Selling Stockholder, such number of
Shares is hereinafter referred to as the "Option Shares")) to be sold by such
Selling Stockholder pursuant to this Agreement and (ii) owns, and on the Closing
Date will own such Shares (other than the Option Shares), free of all
restrictions on transfer, liens, encumbrances, security interests, equities and
claims whatsoever, other than pursuant to the Custody Agreement (as defined
below), if any, the Power of Attorney (as defined below), this Agreement and the
restrictions on transfer set forth in the Management Voting Trust Agreement and
the Stockholders' Agreement, with which such Selling Stockholder is, and on the
Closing Date will be, in compliance, and other than any such restriction on
transfer, lien, encumbrance, security interest, equity or claim created by an
Underwriter or resulting from any actions taken by an Underwriter. If any Shares
are listed opposite the name of a Selling Stockholder under the heading "Option
Shares" in Schedule II hereto, such Selling Stockholder (i) is the holder of an
Award Granted to such Selling Stockholder under the Young & Rubicam Holdings
Inc. Management Stock Option Plan, as amended (the "PLAN") (as such terms are
defined therein), with respect to the Option Shares and (ii) pursuant to the
Plan and such Selling Stockholder's Stock Option Agreement (as defined in the
Plan), on the Closing Date such Selling Stockholder (A) will be the lawful owner
of the Option Shares to be sold by such Selling Stockholder pursuant to this
Agreement and (B) will own such Option Shares, in each case subject to the terms
of this Agreement, the Custody Agreement and the Power of Attorney, free of all
restrictions on transfer, liens, encumbrances, security interests, equities and
claims whatsoever, other than the restrictions on transfer set forth in the
Management Voting Trust Agreement and the Stockholders' Agreement, with which
such Selling
17
Stockholder is, and on the Closing Date will be, in compliance, and other than
any such restriction on transfer, lien, encumbrance, security interest, equity
or claim created by an Underwriter or resulting from any actions taken by an
Underwriter.
(b) Such Selling Stockholder has, and on the Closing Date will have, full
legal right, power and authority, and all authorization and approval required by
law, (i) to enter into this Agreement, the Letter of Transmittal and Custody
Agreement, if any, signed by or on behalf of such Selling Stockholder and The
Bank of New York, as Custodian (the "CUSTODY AGREEMENT"), relating to the
deposit of the Shares (other than the Option Shares) to be sold by such Selling
Stockholder and the Power of Attorney of such Selling Stockholder (the "POWER OF
ATTORNEY") appointing certain individuals as such Selling Stockholder's
attorneys-in-fact (with respect to the Y&R Selling Stockholders, the "Y&R
ATTORNEYS," with respect to the H&F Selling Stockholders, the "H&F ATTORNEYS,"
with respect to BearTel, the "BEARTEL ATTORNEYS" and collectively the
"ATTORNEYS") to the extent set forth therein, relating to the transactions
contemplated hereby and by the Registration Statement and the Custody Agreement,
if any, and (ii) to sell, assign, transfer and deliver on the Closing Date the
Shares to be sold by such Selling Stockholder in the manner provided herein and
therein.
(c) This Agreement has been duly authorized, executed, and delivered by or
on behalf of such Selling Stockholder.
(d) The Custody Agreement, if any, of such Selling Stockholder has been
duly authorized, executed and delivered by or on behalf of such Selling
Stockholder and is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms.
(e) The Power of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding instrument of such Selling Stockholder, enforceable in accordance
with its terms, and pursuant to the applicable Power of Attorney, such Selling
Stockholder has, among other things, authorized the Attorneys, or any one of
them, to execute and deliver on such Selling Stockholder's behalf this
Agreement, on the Y&R Selling Stockholder's behalf the Custody Agreement and any
other document that they, or any one of them, may deem necessary or desirable in
connection with the transactions contemplated hereby and thereby and to deliver
the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
18
(f) Upon sale and delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, the Underwriters will own such
Shares, free and clear of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever, other than any such
restriction on transfer, lien, encumbrance, security interest, equity or claim
created by an Underwriter or resulting from any actions taken by an Underwriter.
(g) Assuming that the representations and warranties of the Company in
Section 6 hereof are true and accurate in all material respects, the execution
and delivery of this Agreement and the Custody Agreement, if any, and Power of
Attorney of such Selling Stockholder by or on behalf of such Selling
Stockholder, the compliance by such Selling Stockholder with all the provisions
hereof and thereof and the performance by such Selling Stockholder of its
obligations hereunder and thereunder will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental agency or body (except such as have been obtained or may be
required under the Act or the securities or Blue Sky laws of the various
states), (ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an individual, or any indenture,
loan agreement, mortgage, lease or other agreement or instrument to which such
Selling Stockholder or any spouse of such Selling Stockholder is a party or by
which such Selling Stockholder or any spouse or property of such Selling
Stockholder is bound or (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling Stockholder or any spouse
or property of such Selling Stockholder.
(h) The information in the Prospectus under the caption "Selling
Stockholders" which specifically relates to such Selling Stockholder (consisting
of such Selling Stockholder's name and number of shares of Common Stock
beneficially owned by such Selling Stockholder both before and after the
offering contemplated hereby) will not on the date of the execution of this
Agreement or on the Closing Date, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(i) At any time during the period commencing on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the reasonable opinion of counsel for the Underwriters a prospectus
is required
19
by law to be delivered in connection with sales by an Underwriter or dealer, if
there is any change in the information referred to in Section 7(h) above, such
Selling Stockholder will promptly notify you and the Company of such change.
(j) Each certificate signed by or on behalf of such Selling Stockholder and
delivered to the Underwriters or counsel for the Underwriters pursuant to
Section 9(e) shall be deemed to be a representation and warranty by such Selling
Stockholder, in its capacity as such, to the Underwriters as to the matters
covered thereby.
SECTION 8. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter, its directors, its officers and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages, liabilities and
judgments (including, without limitation, any reasonable legal or other expenses
incurred in connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto or filed pursuant to Rule 424 under
the Act ("PRELIMINARY PROSPECTUS"), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company
through you expressly for use therein, provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Prospectus shall not inure
to the benefit of any Underwriter, any director or officer of any Underwriter or
any person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act to the extent such Underwriter
failed to deliver a Prospectus (as then amended or supplemented, provided by the
Company to the several Underwriters in the requisite quantity and on a timely
basis to permit proper delivery on or prior to the Closing Date) to the person
asserting any losses, claims, damages, liabilities and judgments caused by any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, or
20
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, if such material misstatement or omission or alleged material
misstatement or omission was cured in such Prospectus.
(b) The Company agrees to indemnify and hold harmless each Selling
Stockholder, its directors, its officers and each person, if any, who controls
any Selling Stockholder within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any reasonable legal
or other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any Preliminary Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Selling Stockholder furnished in writing to the Company by such Selling
Stockholder expressly for use therein.
(c) Each of the Selling Stockholders, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter, its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and judgments (including, without
limitation, any reasonable legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only with respect to losses, claims, damages, liabilities and judgments caused
by an untrue statement or omission or alleged untrue statement or omission based
on information relating to such Selling Stockholder furnished in writing by or
on behalf of such Selling Stockholder expressly for use in the Prospectus.
21
(d) Each of the Selling Stockholders, severally and not jointly, agrees to
indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action, that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any Preliminary Prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
respect to losses, claims, damages, liabilities and judgments caused by an
untrue statement or omission or alleged untrue statement or omission based on
information relating to such Selling Stockholder furnished in writing by or on
behalf of such Selling Stockholder expressly for use in the Prospectus.
(e) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers, each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, each Selling Stockholder and each person, if any, who
controls such Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such Underwriter but only with reference to information
relating to such Underwriter furnished in writing to the Company through you
expressly for use in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus.
(f) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Sections 8(a), 8(b), 8(c), 8(d) or
8(e) (the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all reasonable fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to Sections 8(a), 8(b), 8(c), 8(d) and 8(e), the
Underwriter shall not be
22
required to assume the defense of such action pursuant to this Section 8(f), but
may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense
of such Underwriter). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for (i) the reasonable fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) for all Underwriters, their
officers and directors and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, (ii) the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for (x) the Company, its directors,
its officers and all persons, if any, who control the Company within the meaning
of either such Section and (y) the Y&R Selling Stockholders (iii) the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for BearTel and all persons, if any, who control BearTel
within the meaning of either such Section, and (iv) the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for any H&F Selling Stockholders and all persons, if any, who control
any H&F Selling Stockholder within the meaning of either such Section, and all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters, their officers and directors and
such control persons of any Underwriters, such firm shall be designated in
writing by Bear, Xxxxxxx & Co. Inc. In the case of any such separate firm for
the Company and such directors, officers and control persons of the Company,
such firm shall be designated in writing by the Company. In the case of any such
separate firm for the H&F Selling Stockholders and such control persons of any
H&F Selling Stockholders, such firm shall be designated in writing by the
Attorneys. The indemnifying party shall indemnify and
23
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a written request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(g) To the extent the indemnification provided for in this Section 8 is
unavailable (other than in accordance with the terms hereof) to an indemnified
party or insufficient in respect of any losses, claims, damages, liabilities or
judgments referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause 8(g)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 8(g)(i) above but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other hand shall be deemed to be in the same respective proportion as the total
net proceeds from the offering (after deducting underwriting discounts and
commissions, but before deducting expenses) received by all Selling Stockholders
and the total underwriting discounts and commissions received by the
Underwriters,
24
bear to the total price to the public of the Shares, in each case as set forth
on the cover page of the Prospectus. The relative benefits received by each
Selling Stockholder on the one hand and the Underwriters on the other hand shall
be deemed to be in the same respective proportion as the total net proceeds from
the offering (after deducting underwriting discounts and commissions, but before
deducting expenses) received by such Selling Stockholder, and the total
underwriting discounts and commissions received by the Underwriters, bear to the
total price to the public of the Shares, in each case as set forth on the cover
page of the Prospectus. The relative fault of the Company, the Selling
Stockholders and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the respective Selling Stockholders on
the one hand or the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, Selling Stockholders and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 8(g) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses incurred by
such indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8(g) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint. The respective obligations of the Selling Stockholders to contribute
pursuant to this
25
Section 8(g) are several in proportion to the respective number of Shares sold
by each Selling Stockholder hereunder and not joint.
(h) Notwithstanding anything in this Agreement to the contrary, the maximum
aggregate liability of any Selling Stockholder pursuant to this Section 8 shall
be limited to an amount equal to the gross proceeds (after deducting
underwriting discounts and commissions but before deducting expenses) received
by such Selling Stockholder from the Underwriters for the sale of the Shares
sold by such Selling Stockholder hereunder (with respect to each Selling
Stockholder, such amount is referred to as the "SELLING STOCKHOLDER PROCEEDS").
(i) The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity. The provisions of this Section 8 shall
supersede the provisions of Article 5 of the Registration Rights Agreement (as
defined in the Prospectus) with respect to the offer and sale of the Shares by
the Selling Stockholders provided that the remaining provisions of the
Registration Rights Agreement shall remain in full force and effect.
(j) Each Y&R Selling Stockholder hereby designates Young & Rubicam Inc.,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent, upon
which process may be served in any action which may be instituted in any state
or federal court in the State of New York by any Underwriter, any director or
officer of any Underwriter or any person controlling any Underwriter asserting a
claim for indemnification or contribution under or pursuant to this Section 8,
and each Y&R Selling Stockholder will accept the jurisdiction of such court in
such action, and waives, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue. A copy of any such
process shall be sent or given to such Y&R Selling Stockholder, at the address
for notices specified in Section 13 hereof. Each H&F Selling Stockholder hereby
designates H&F Investors III, Inc., Xxx Xxxxxxxx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 , as its authorized agent, upon which process may be served in
any action which may be instituted in any state or federal court in the State of
New York by any Underwriter, any director or officer of any Underwriter or any
person controlling any Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 8, and each H&F Selling
Stockholder will accept the jurisdiction of such court in such action, and
waives, to the fullest extent permitted by applicable law, any defense based
upon lack of personal jurisdiction or venue. A copy of any such process shall be
sent or given to such H&F Selling Stockholder, at the address for
26
notices specified in Section 13 hereof. BearTel hereby designates Bear, Xxxxxxx
& Co. Inc., 000 Xxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent,
upon which process may be served in any action which may be instituted in any
state or federal court in the State of New York by any Underwriter, any director
or officer of any Underwriter or any person controlling any Underwriter
asserting a claim for indemnification or contribution under or pursuant to this
Section 8, and BearTel will accept the jurisdiction of such court in such
action, and waives, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue. A copy of any such
process shall be sent or given to BearTel, at the address for notices specified
in Section 13 hereof.
SECTION 9. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Firm Shares under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this
Agreement shall be true and correct on the Closing Date with the same force and
effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., New York City time, on the
date of this Agreement (or by 9:30 A.M., New York City time on the day following
the date of this Agreement); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by Xxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxx, in their
capacities as the Chairman of the Board and Chief Executive Officer and Vice
Chairman and Chief Financial Officer of the Company, respectively, confirming
the matters set forth in Sections 6(t) and 9(a) and that the Company has
complied with all of the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied by the Company on or
prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus, other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change in the condition, financial or
otherwise, or the earnings,
27
business, management or operations of the Company and its subsidiaries, taken as
a whole, and (ii) there shall not have been any change in the capital stock or
in the long-term debt of the Company and its subsidiaries, taken as a whole, and
(iii) neither the Company nor any of its subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any such
case described in clause 9(d)(i), 9(d)(ii) or 9(d)(iii), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and you shall
have received on the Closing Date a certificate dated the Closing Date executed
by an Attorney pursuant to the Power of Attorney on behalf of each Selling
Stockholder to such effect and to the effect that such Selling Stockholder has
complied with all of the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied by such Selling
Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date (i) an opinion, dated the
Closing Date, of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Company, to
the effect set forth in Appendix A hereto and (ii) an opinion, dated the Closing
Date, of the General Counsel or Senior Vice President, Legal Counsel, for the
Company, to the effect set forth in Appendix B hereto.
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Wachtell, Lipton, Xxxxx & Xxxx, counsel for the H&F Selling
Stockholders, to the effect set forth in Appendix C hereto.
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Xxxx X. Xxxxxx, counsel for BearTel, to the effect set forth in
Appendix D hereto.
(i) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, substantially to the effect set forth in Sections 6(b)(i),
6(b)(ii), 6(b)(iii), 6(b)(iv), and 6(o) herein.
28
(j) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from PricewaterhouseCoopers LLP,
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(k) The Company and each entity listed on Schedule V hereto shall have
delivered to you the agreements of the trustees of the Management Voting Trust
and such entities, respectively, specified in Section 2 hereof which agreements
shall be in full force and effect on the Closing Date.
(l) The Shares shall have been duly listed, subject to official notice of
issuance, on the NYSE.
(m) You shall have received on the Closing Date, a certificate of each
Selling Stockholder who is not a U.S. Person (as defined under applicable U.S.
federal tax legislation) to the effect that such Selling Stockholder is not a
U.S. Person, which certificate may be in the form of a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to the Representatives on the
applicable Option Closing Date of such documents as they may reasonably request
with respect to the good standing of the Company, a certificate to the effect
set forth in Section 9(c) dated the applicable Option Closing Date, an opinion
of Cleary, Gottlieb, Xxxxx & Xxxxxxxx to the effect set forth in paragraph 3 of
Appendix A and an opinion of Wachtell, Lipton, Xxxxx & Xxxx to the effect set
forth in paragraph 5 of Appendix C.
SECTION 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
29
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, or (v) the declaration of a banking moratorium
by either federal or New York State authorities or the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares which any Underwriter
has agreed to purchase pursuant to Section 2 hereof be increased pursuant to
this Section 10 by an amount in excess of one-ninth of such number of Shares
without the written consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs
30
is more than one-tenth of the aggregate number of Firm Shares to be purchased by
all Underwriters and arrangements satisfactory to you, the Company and the H&F
Selling Stockholders for purchase of such Firm Shares are not made within 48
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter, the Company or the Selling Stockholders.
In any such case which does not result in termination of this Agreement, either
you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such date, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase such Additional Shares or
(ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
SECTION 11. Agreements of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, agrees with you and the Company, whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all reasonable expenses
incident to the performance of the Selling Stockholders' obligations under this
Agreement, including: (i) the fees, disbursements and expenses of any Selling
Stockholder's counsel in connection with the registration and delivery of the
Shares under the Act, (ii) all costs and expenses related to the transfer and
delivery of the Firm Shares to the Underwriters, including any transfer or other
taxes payable thereon, and (iii) all other costs and expenses incident to the
performance of the obligations of the Selling Stockholders hereunder for which
provision is not otherwise made in this Section. The provisions of this Section
shall not supersede or otherwise affect any separate agreement that the Company
and any Selling Stockholders may have for allocation of such expenses among
themselves.
SECTION 12. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to Young &
Rubicam Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel, (ii) if to the Y&R Selling Stockholders, to Xxxxxxx X.
31
Xxxxx, Xxxxxxxxx X. Xxxxxxxx or Xxxxx Xxxxx, as Y&R Attorneys, c/o Young &
Rubicam Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (iii) if to the H&F
Selling Stockholders, to Xxxxxx X. Xxxxxxxxxxxx and Xxxxxxx X. Xxxxxx, as H&F
Attorneys, c/o H&F Investors III, Inc., Xxx Xxxxxxxx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, (iv) if to BearTel, to Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxx,
and Xxxxxx X. Xxxxxx, as BearTel Attorneys, c/o Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxx., Xxx Xxxx, Xxx Xxxx 00000, and (v) if to any Underwriter or to you, to
you c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, the
Company, the officers or directors of the Company, any person controlling the
Company, any Selling Stockholder or any person controlling such Selling
Stockholder, acceptance of the Shares and payment for them hereunder and
termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Selling Stockholders as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10 or breach of this Agreement
by any Underwriter), the Company, the H&F Selling Stockholders and BearTel agree
severally and not jointly, to reimburse the several Underwriters for all
out-of-pocket expenses (including the reasonable fees and disbursements of
counsel) incurred by them in proportion to the number of shares to be sold by
(i) the Y&R Selling Stockholders, (ii) the H&F Selling Stockholders and (iii)
BearTel, respectively. Notwithstanding any termination of this Agreement, the
Company shall be liable for all expenses which it has agreed to pay pursuant to
Section 5(h) hereof.
Each Y&R Selling Stockholder's liability for the breach of the
representations and warranties of such Y&R Selling Stockholder in or pursuant to
Section 7(a) is not limited under this Agreement. Notwithstanding the foregoing,
the aggregate liability of any Y&R Selling Stockholder for the breach of any
representations and warranties of such Y&R Selling Stockholder in or pursuant to
Sections 7(b), (c), (d), (e), (f), (g), (h), (i) and (j) shall be limited to
such Y&R
32
Selling Stockholder's Selling Stockholder Proceeds. In the event that the
losses, claims, damages, liabilities or judgments relating to the breach by any
Y&R Selling Stockholder of any representations and warranties of such Y&R
Selling Stockholder in or pursuant to Sections 7(b), (c), (d), (e), (f), (g),
(h), (i) and (j) exceeds the Selling Stockholder Proceeds for such Y&R Selling
Stockholder, the Company agrees that it shall be wholly liable for such excess
amount. Solely with respect to each Y&R Selling Stockholder, the Company hereby
makes to each Underwriter the representations and warranties made by each such
Y&R Selling Stockholder in Sections 7(b), (c), (d), (e), (f), (g), (h), (i) and
(j), inclusive.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
33
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
YOUNG & RUBICAM INC.
By:
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
and Chairman
THE Y&R SELLING
STOCKHOLDERS NAMED IN
SCHEDULE II HERETO,
ACTING SEVERALLY
By:
---------------------------------------
Attorney-in-fact
THE H&F SELLING
STOCKHOLDERS NAMED IN
SCHEDULE III(a) HERETO,
ACTING SEVERALLY
By:
---------------------------------------
Attorney-in-fact
BEARTEL CORP
By:
---------------------------------------
Attorney-in-fact
34
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
ING BARING XXXXXX XXXX LLC
XXXXXXX XXXXX XXXXXX INC.
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto
By BEAR, XXXXXXX & CO. INC.
By:
---------------------------------------
Name:
Title:
35
SCHEDULE I
----------
--------------------------------------------------------------------------------
Underwriters Number of Firm
Shares to be Purchased
--------------------------------------------------------------------------------
Bear, Xxxxxxx & Co. Inc.
--------------------------------------------------------------------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
--------------------------------------------------------------------------------
Xxxxxxx, Sachs & Co.
--------------------------------------------------------------------------------
ING Baring Xxxxxx Xxxx LLC
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx Barney Inc.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total 10,000,000
--------------------------------------------------------------------------------
1
SCHEDULE II
------------
Y&R SELLING STOCKHOLDERS
Number of Firm
Number of Shares Being Sold
Firm Shares that Constitute
Name Being Sold Option Shares
-------------------------------------------------------------- ------------------ -----------------------
Xxxxxx, Xxxxxxx 20,105 9,100
Albinus, Stig 16,140 16,140
Xxxxxxx, Xxxxxxxx 2,000 0
Bara, Xxxx-Xxxx 35,588 0
Xxxx, Xxxxxxx 2,000 0
Xxxxxx, Xxxxxxxx 10,000 0
Xxxxxx, Xxxxx 3,510 0
Xxxx, Xxx 40,000 0
Bergerus-Hobinger, Leena 45,570 25,575
Xxxxxxxx, Lincoln 15,615 15,615
Blocklin, June 29,520 29,520
Xxxxxxx, Xxxx 12,078 3,600
Xxxxx, Xxxxxx 2,430 0
Xxxxxxxx, Xxxxxxx 33,750 0
Xxxxx, Xxxxxx 55,000 0
Brands, Xxxxx Xxxxx 9,733 0
Xxxxxxxx, Xxxxx 28,000 0
Xxxxx, Xxxxxx 71,970 0
Xxxxx, Xxxx 40,000 0
Xxxxxxxx, Xxxxx 14,000 0
Xxxxxxx, Xxx 16,000 0
Xxxxx, Xxxxxxx 5,000 0
Cogman, Don 61,600 61,600
Xxxxxx, Xxxxx 19,327 0
Xxxxxxx, Xxxxx 700 700
Xxxxx, Xxxx Xxxxx 15,000 0
Costa, Massimo 7,406 0
Xxxxxx, Xxxx 5,220 5,220
Xxxxxx, Xxxxx 15,651 15,651
Xxxxx, Xxxxxx 19,080 0
Xx Xxxxxx, Xxxxxxxxx 15,000 0
Xxxxx, Xxxxxx 201,258 0
2
Number of Firm
Number of Shares Being Sold
Firm Shares that Constitute
Name Being Sold Option Shares
-------------------------------------------------------------- ------------------ -----------------------
Deutsch, Xxxxxxxx 1,400 1,400
Xxxxxxx, Xxxxxxx 10,875 10,875
XxXxxx, Xxxxxx 20,000 0
Xxxxx, Xxxxx 6,250 6,250
Xxxxxx, Xxxxx 5,200 5,200
Xxxxxxxx, Xxxxx 31,709 31,709
Xxxxx, Xxxxx 4,500 4,500
Xxxxxx, Xxxxxxx 5,000 0
Xxxxxxx-Xxxxxx, Xxxxx 20,355 0
Xxxx, Xxxxxxx 9,000 0
Xxxx, Xxxxxxx 18,000 18,000
Xxxxxxx, Xxxxx 26,088 0
Xxxxx, Xxxxxx 1,000 1,000
Xxxxxxxxxx, Xxxx 39,000 0
Xxxxxxxxxxx, Xxxxx 9,000 9,000
Xxxxx, Xxxx 10,000 0
Xxxxxxx, Xxxxxx 9,000 0
Gomezese, Oscar 2,000 2,000
Xxxxxxxx, Xxxxxxx 40,000 0
Xxxxx, Xxxxxxx 10,000 0
Xxxxxx, Xxxxx 10,000 0
Xxxxxxxxx, Xxxxxx 6,000 0
Xxxxxx-Xxxxxx, Xxxxxx 37,125 27,060
Xxxxxx, Xxx 750 750
Xxxxxxxx, Xxxxx 16,000 0
Xxxxxxx, Xxxx 17,400 17,400
Himpe, Stefaan 5,000 0
Xxxx, Xxxxx 35,000 0
Xxxx, Xxxxxxxx 10,350 0
Xxxxxxxx, Xxxxx 6,957 6,957
Hosp, Xxxxxxx 20,000 0
Xxxx, Xxxx Xxxxxxxx 11,900 11,900
Xxxxxx, Xxxx 34,785 34,785
Xxxx, Xxxx 15,279 15,279
3
Number of Firm
Number of Shares Being Sold
Firm Shares that Constitute
Name Being Sold Option Shares
-------------------------------------------------------------- ------------------ -----------------------
Ibba, Gigliola 15,000 0
Xxxxx, Xxxxxx 52,175 52,175
Xxxx, Xxxxxxx 89,370 0
Jebsen, Pal Marius 28,000 15,000
Xxxxxxxx, Xxxxxxx 6,000 0
Xxxxxxx, Xxxxx 8,000 8,000
Xxxxx, Xxxx Xxxxx 6,522 0
Xxxxxxxx, Xxxx 13,000 0
Xxxxx, Xxxxxx 30,000 0
Xxx, Xxxxxx 15,500 15,500
Xxxxxxxxxx, Xxxx 12,000 12,000
Xxxxxxxxx, Xxxxxxxx 6,000 0
Xxxxxx, Xxxx 150,000 0
Xxxxxxxx, Xxxxxxxxx 72,794 0
Xxxx, Xxxxxxxx 356,000 0
Xxxxxxx, Xxx 11,000 5,000
La Rock, Xxxxx 10,000 10,000
Xxxxx, Xxxxxxx 4,135 4,135
Xxx, Xxxxxx 675 675
Loes, Xxxxxx Xxxxxxx 39,135 39,135
Xxxxxxxx, Xxxxx 20,000 0
Machtiger, Xxxxxxx 7,000 0
Xxxxxxxxx, Xxxxxx 5,000 5,000
Xxxxxxx, Xxxx 16,983 0
Xxxxxx, Xxxxxxx 16,305 0
Xxxxxxxx, Xxxxxx 125,000 0
Maurice, Martin 15,000 0
XxXxxxxx, Xxxxxx 12,000 12,000
XxXxxxx Jr., Xxxx 309,706 0
XxXxxxx, Xxxxxx 92,000 50,000
XxXxxx, Xxxxxx 11,955 11,955
XxXxxxxxx, Xxxxxx 34,765 0
Meerstadt, Xxxx 8,000 0
4
Number of Firm
Number of Shares Being Sold
Firm Shares that Constitute
Name Being Sold Option Shares
-------------------------------------------------------------- ------------------ -----------------------
Xxxxxx, Xxxxxxx 73,300 32,911
Xxxxxxx-Xxxxxxx, Xxxxx 22,767 0
Xxxxxxxxx, Xxxxx 31,467 0
Xxxxxx, Xxxxx 12,000 0
Xxxxxxx, Xxxxxx 282,000 0
Xxxxx, Xxxxx 18,792 0
Xxxxxx, Xxxx 12,432 12,432
Xxxxxx, Xxxxx 6,500 0
Xxxxxx Xx., Xxxxxxx 0,000 0
Xxxxxx, Xxxxx 26,250 0
Xxxxxxxxx, Xxxx 11,379 0
X' Xxxxxx, Xxxxx 13,560 13,560
Xxxxx, Xxxxx 64,988 0
X' Xxxxxx, Xxxxxxx 10,000 0
Xxxx, Xxxxxxx 20,000 0
Xxxxx, Xxxxxxx 10,000 10,000
Xxxxxxxx, Xxxxxx X. 17,220 3,480
Xxxxx, Xxxxxx 32,000 0
Xxxxx, Xxxxxxx 49,575 49,575
Xxxxxxxxxx, Xxxxx 7,500 0
Xxxxxx, Xxxx 28,710 28,710
Xxxxxxxx, Xxxxxx 4,960 0
Xxxxxx, Xxx 264,000 0
Xxxxxx, Xxxxxxx 15,610 15,610
Xxxxx, Xxxxxxx 50,000 0
Xxxxx, Xxx 10,000 10,000
Xxxxxxx, Xxxxx 6,450 0
Xxxxxx, Xxxxx 32,000 0
Xxxxxx, Xxxx X. 9,173 9,173
Quadflieg, Matthias 5,475 0
Xxxxxxxx, Xxxxx 40,000 9,810
Xxxxx, Xxxxxx 15,000 0
Xxxxxx, Xxxxxxxx 12,522 12,522
Xxxxxxxxxx, Xxxxx 6,087 6,087
5
Number of Firm
Number of Shares Being Sold
Firm Shares that Constitute
Name Being Sold Option Shares
-------------------------------------------------------------- ------------------ -----------------------
Xxxxxxxxxxxxx, Xxxx 8,000 0
Xxxxxxxxx, Xxxxx 1,755 0
Xxxxxx, Xxxxxx 6,450 0
Xxxxxxxxx, Xxxxx 10,000 0
Xxxx, Xxxx 5,000 5,000
Xxxxxxxxx, Xxxxx 33,915 0
Xxxxxxx, Xxxxx 55,352 0
Xxxxx, Xxxxxxx 38,568 0
Xxxxxxx, Xxxx 20,000 20,000
Xxxxxx, Xxxxx 13,050 0
Xxxxxxxxx, Xxxxxxx 7,000 0
Schou, Nico 13,755 0
Xxxxx, Xxxxxxxx 20,000 20,000
Xxxxxxx, Xxxxx 23,733 23,733
Xxxxxxx, Xxxx 26,085 26,085
Xxxxxxxx, Xxxxx 10,000 10,000
Xxxxx, Xxxxx 17,742 2,088
Xxxx, Xxxxxx 3,500 3,500
Xxxxxxx, Xxxx 250,000 0
Xxxxxxxx, Xxxxxxx 11,000 0
Sive, Xxxxxx 12,590 1,280
Xxxxx, Xxxxx 10,650 10,650
Xxxxx, Xxx 6,000 0
Xxxxx, Xxxxx 15,000 15,000
Stadeler, Christoph 23,000 0
Xxxxxxxxx, Xxxxxxx 80,321 0
Xxxxxxxx, Xxxxx 1,000 1,000
Xxxxx Xxxxxxx, Xxxxx 8,000 0
Xxxxx, Xxxxxxx 7,000 7,000
Xxxxxx, Xxxx 14,000 0
Timon, Clay 36,511 0
Xxxxx, Xxxxx 5,500 0
Vijn, Pieter 10,000 0
Xxxxxxx, Xxxxxx 24,100 0
6
Number of Firm
Number of Shares Being Sold
Firm Shares that Constitute
Name Being Sold Option Shares
-------------------------------------------------------------- ------------------ -----------------------
Xxxxx, Xxxx 2,000 2,000
Xxxxx, Xxxxxxx 13,914 13,914
Xxxxxx, Xxxxx 65,000 0
Xxxxxxxx, Xxxxxx 18,000 0
Xxxxxxxx, Xxxxx 22,500 21,500
Xxxxxx, Xxxxxxx 6,000 0
Xxxxxxx, Xxxx 23,185 23,185
TOTAL 5,180,647 1,047,166
7
SCHEDULE III
------------
(a) H&F SELLING STOCKHOLDERS
Number of Firm
Name Shares Being Sold
-------------------------------------------------------------- -----------------------------
Xxxxxxx & Xxxxxxxx Capital Partners III, L.P. 4,300,347
H&F Orchard Partners III, L.P. 313,185
H&F International Partners III, L.P. 93,816
American Media Management, Inc. 21,049
H. Xxxxxx Xxxxxxxxx 42,096
-------------------------
Total 4,770,493
------------------------------------------------------------------------------------------
(b)
BearTel Corp. 48,860
8
SCHEDULE IV
-----------
OPTION SELLING STOCKHOLDERS
Number of Additional
Shares Subject to
Name Additional Share Option
-------------------------------------------------------------- -------------------------------
Xxxxxxx & Xxxxxxxx Capital Partners III, L.P.
H&F Orchard Partners III, L.P. H&F International Partners III, L.P.
American Media Management, Inc.
H. Xxxxxx Xxxxxxxxx
BearTel Corp.
---------------------
Total Shares Subject to Additional Share Option: 1,500,000
9
SCHEDULE V
----------
LOCK-UPS**
-----
**To come.
10
Appendix A
----------
FORM OF OPINION OF CLEARY, GOTTLIEB, XXXXX & XXXXXXXX:
1. The Company is validly existing as a corporation in good standing under
the laws of the State of Delaware.
2. The Company has corporate power to own its properties and conduct its
business as described in the Prospectus, and the Company has corporate power to
enter into the Underwriting Agreement and to perform its obligations thereunder.
3. The Shares have been duly authorized by all necessary corporate action
of the Company, have been validly issued by the Company and are fully paid and
nonassessable; and the holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights to subscribe for the Shares
under the Amended and Restated Certificate of Incorporation or the Amended and
Restated By-Laws of the Company, or the General Corporation Law of the State of
Delaware.
4. The statements set forth under the heading "Description of Capital Stock
-- Common Stock" in the Prospectus, insofar as such statements purport to
summarize certain provisions of the Securities and the Amended and Restated
Certificate of Incorporation of the Company, provide a fair summary of such
provisions, and the statements made in the Prospectus under the heading "Certain
U.S. Tax Consequences to Non-United States Holders", insofar as such statements
purport to summarize certain federal income tax laws of the United States,
constitute a fair summary of the principal U.S. federal income tax consequences
of an investment in the Securities by a non-U.S. holder (as defined in the
Prospectus).
5. The execution and delivery of the Underwriting Agreement have been duly
authorized by all necessary corporate action of the Company, and the
Underwriting Agreement has been duly executed and delivered by the Company.
6. The execution and delivery of the Underwriting Agreement and the
performance by the Company of its obligations in the Underwriting Agreement (a)
do not require any consent, approval, authorization, registration or
qualification of or with any governmental authority of the United States of
America or the State of New York or pursuant to the Delaware General Corporation
Law, except such as have been obtained or effected under the Securities Act and
the Securities Exchange Act of 1934, as amended (but such counsel expresses no
opinion as to any consent, approval, authorization, registration or
qualification that may be required under state securities or Blue Sky laws), and
(b) do not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any of the agreements of the Company filed
(including by incorporation by reference)
11
as exhibits to the Registration Statement, the Amended and Restated Certificate
of Incorporation of the Company or the Amended and Restated By-laws of the
Company.
7. The Company is not and, after giving effect to the offering and sale of
the Shares, will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
8. The Registration Statement (except the financial statements and
schedules and other financial and statistical data included therein, as to which
such counsel expresses no view), at the time it became effective, and the
Prospectus (except as aforesaid), as of the date thereof, appeared on their face
to be appropriately responsive in all material respects to the requirements of
the Securities Act and the rules and regulations thereunder other than
Regulation S-T under the Securities Act. In addition, such counsel does not know
of any contracts or other documents of a character required to be filed as
exhibits to the Registration Statement or required to be described in the
Registration Statement or the Prospectus that are not filed or described as
required.
9. No information has come to such counsel's attention that causes such
counsel to believe that the Registration Statement (except the financial
statements and schedules and other financial and statistical data included
therein, as to which such counsel expresses no view), at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading.
10. No information has come to such counsel's attention that causes such
counsel to believe that the Prospectus (except the financial statements and
schedules and other financial and statistical data included therein, as to which
such counsel expresses no view), as of the date thereof or as of the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
11. Such counsel shall confirm that (based solely upon a telephonic
confirmation from a representative of the Commission) the Registration Statement
is effective under the Securities Act and, to the best of such counsel's
knowledge, no stop order with respect thereto has been issued, and no proceeding
for that purpose has been instituted or threatened by the Commission.
13. The Custody Agreement executed by or on behalf of each Y&R Selling
Stockholder is a valid, binding and enforceable agreement of such Y&R Selling
Xxxxxxxxxxx.
00
00. The Power of Attorney executed by each Y&R Selling Stockholder is a
valid, binding and enforceable instrument of such Y&R Selling Stockholder
15. Upon delivery to the Underwriters in the State of New York of
certificates evidencing the Y&R Selling Stockholder Shares indorsed to such
Underwriters or in blank and payment therefore by the Underwriters pursuant to
the Underwriting Agreement, the Underwriters will own the Y&R Selling
Stockholder Shares free of any adverse claim (within the meaning of the Uniform
Commercial Code as in effect in the State of New York (the "UCC")). In rendering
the foregoing opinion such counsel may assume that (i) each Underwriter takes
delivery of the Y&R Selling Stockholder Shares without notice of any adverse
claim (within the meaning of the UCC) and (ii) the signature on each indorsement
is genuine.
00
Xxxxxxxx X
----------
FORM OF OPINION OF GENERAL COUNSEL OR SENIOR VICE PRESIDENT, LEGAL COUNSEL
FOR THE COMPANY:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and has the
corporate power and authority to carry on its business as described in the
Prospectus and to own, lease and operate its properties.
2. YRLP has been duly organized, is validly existing and in good standing
as a limited partnership under the laws of the State of Delaware and has the
partnership power and authority to carry on its business as it is currently
conducted and to own, lease and operate its properties.
3. The Company is duly qualified to transact business and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified or in
good standing would not have a Material Adverse Effect.
4. YRLP is duly qualified and is in good standing as a foreign partnership
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be in good standing or to be so qualified would not
have a Material Adverse Effect.
5. All of the issued and outstanding shares of Common Stock of the Company,
including the Shares, have been duly authorized by all necessary corporate
action of the Company, have been validly issued by the Company and are fully
paid and nonassessable; and the holders of outstanding shares of capital stock
of the Company are not entitled to any preemptive rights to subscribe for the
Shares under the Amended and Restated Certificate of Incorporation, the Amended
and Restated By-Laws of the Company, the General Corporation Law of the State of
Delaware or any contracts to which the Company is a party.
6. All of the outstanding partnership interests in YRLP have been duly
authorized and validly issued and are fully paid and non-assessable, and are
owned by the Company, directly or indirectly through one or more subsidiaries,
free and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
7. The execution and delivery of the Underwriting Agreement have been duly
authorized by all necessary corporate action of the Company, and the
Underwriting Agreement has been duly executed and delivered by the Company.
14
8. The authorized capital stock of the Company conforms as to legal matters
to the description thereof contained in the Prospectus.
9. The statements set forth under the heading "Description of Capital
Stock" and "Shares Eligible for Future Sale" and in the [fifth, sixth, eighth
and fourteenth paragraphs and the first sentence of the seventh paragraph under
the heading "Underwriting"] in the Prospectus and Items 14 and 15 of Part II of
the Registration Statement, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein, fairly
summarize the matters, documents or proceedings referred to therein.
10. The Company is not in violation of its Amended and Restated Certificate
of Incorporation or Amended and Restated By-laws, YRLP is not in violation of
its partnership agreement or other organizational documents, and, to such
counsel's knowledge, neither the Company nor YRLP is in default in the
performance of any obligation, agreement, covenant or condition contained in any
of the agreements of the Company or YRLP filed as exhibits to the Registration
Statement except for defaults which would not have a Material Adverse Effect.
11. The execution and delivery by the Company of the Underwriting Agreement
and the performance by the Company of its obligations therein (a) do not require
any consent, approval, authorization, registration or qualification of or with
any governmental authority of the United States or the State of New York, except
such as have been obtained or effected under the Securities Act and the
Securities Exchange Act of 1934, as amended (but such counsel expresses no
opinion as to any consent, approval, authorization, registration or
qualification that may be required under state securities or Blue Sky laws of
the United States or the securities laws of any non-U.S. jurisdiction), (b) do
not result in a breach or violation of any of the terms or provisions of, or a
default under (i) any of the agreements of the Company or YRLP filed (including
by incorporation by reference) as exhibits to the Registration Statement, (ii)
the Amended and Restated Certificate of Incorporation or the Amended and
Restated By-laws of the Company, (iii) the partnership agreement or other
organizational documents of YRLP or (iv) any judgment, decree or order
applicable to the Company of any United States federal or New York State court
or other governmental authority, except (in the case of (i) and (iv)) for such
breaches or violations as would not result in a Material Adverse Effect, and (c)
do not result in the suspension, termination or revocation of any Authorization
of the Company or YRLP or any other impairment of the rights of the holder of
any such Authorization, except as would not result in a Material Adverse Effect.
12. To such counsel's knowledge after due inquiry, there are no legal or
governmental proceedings pending or threatened to which the Company or YRLP is a
party or to which any of the properties of the Company or YRLP is subject that
are required to be described in the Registration Statement or the Prospectus
that are not so described, and there
15
are no contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required.
13. To such counsel's knowledge, neither the Company nor any of its
subsidiaries has violated any Environmental Law, any provisions of the Employee
Retirement Income Security Act of 1974, as amended, or any provisions of the
Foreign Corrupt Practices Act, or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
14. The Company is not and, after giving effect to the offering and sale of
the Shares, will not be an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
15. To such counsel's knowledge, except as described in the Prospectus,
there are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement.
16. Each of the Company and YRLP has such Authorizations of, and has made
all filings with and notices to, all United States federal and New York State
govern mental or regulatory authorities and self-regulatory organizations and
all courts and other tribunals, including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease, license and
operate its respective properties and to conduct its busi ness, except where the
failure to have any such Authorization or to make any such filing or notice
would not, in the aggregate, have a Material Adverse Effect; each such
Authorization is valid and in full force and effect and each of the Company and
YRLP is in compliance with all the terms and conditions thereof and with the
rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Company; in each case except as would
not have a Material Adverse Effect.
17. The Registration Statement (except the financial statements and
schedules and other financial and statistical data included therein, as to which
such counsel expresses no view), at the time it became effective, and the
Prospectus (except as aforesaid), as of the date thereof, appeared on their face
to be appropriately responsive in all material respects to the requirements of
the Securities Act and the rules and regulations thereunder other than
Regulation S-T under the Securities Act. In addition, I do not know of any
16
statutes, regulations, contracts or other documents of a character required to
be filed as exhibits to the Registration Statement or required to be described
in the Registration Statement or the Prospectus that are not filed or described
as required.
18. No information has come to my attention that causes me to believe that
(i) the Registration Statement (except the financial statements and schedules
and other financial and statistical data included therein, as to which I express
no view) at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) the
Prospectus (except the financial statements and schedules and other financial
and statistical data included therein, as to which I express no view), as of the
date thereof or as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
17
Appendix C
----------
FORM OF OPINION OF WACHTELL, LIPTON, XXXXX & XXXX:
1. Each of the H&F Selling Stockholders is the lawful owner of the Shares
to be sold by such Selling Stockholder pursuant to the Underwriting Agreement
and owns such Shares, free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever other than pursuant to the
Custody Agreement, the Power of Attorney, the Underwriting Agreement and other
than any such restriction on transfer, lien, encumbrance, equity or claim
created by an Underwriter or resulting from any actions taken by an Underwriter.
2. Each of the H&F Selling Stockholders has full legal right, power and
authority, and all authorization and approval required by law, to enter into the
Underwriting Agreement and the Custody Agreement and the Power of Attorney of
such Selling Stockholder and to sell, assign, transfer and deliver the Shares to
be sold by such Selling Stockholder in the manner provided herein and therein.
3. The Custody Agreement of each of the H&F Selling Stockholders been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in accordance
with its terms.
4. The Power of Attorney of each of the H&F Selling Stockholders has been
duly authorized, executed and delivered by such Selling Stockholder and is a
valid and binding instrument of such Selling Stockholder, enforceable in
accordance with its terms, and, pursuant to such Power of Attorney, such Selling
Stockholder has, among other things, authorized the Attorneys, or any one of
them, to execute and deliver on such Selling Stockholder's behalf this Agreement
and any other document they, or any one of them, may deem necessary or desirable
in connection with the transactions contemplated hereby and thereby and to
deliver the Shares to be sold by such Selling Stockholder pursuant to this
Agreement.
5. Upon sale and delivery of and payment for the Shares to be sold by each
of the H&F Selling Stockholders pursuant to the Underwriting Agreement, and
assuming the Underwriters purchase such Shares for value and in good faith
without notice of any adverse claim, the Underwriters will own such Shares, free
and clear of all restrictions on transfer, liens, encumbrances, security
interests, equities and claims whatsoever other than any such restriction on
transfer, lien, encumbrance, equity or claim created by an Underwriter or
resulting from any actions taken by an Underwriter.
6. Assuming that the representations and warranties of the Company in
Section 6 of the Underwriting Agreement are true and accurate in all material
respects, the execution and delivery of the Underwriting Agreement and the
Custody Agreement and
18
Power of Attorney of each of the H&F Selling Stockholders by such Selling
Stockholder, the compliance by such Selling Stockholder with all the provisions
hereof and thereof and the performance by such Selling Stockholder of its
obligations thereunder will not require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue Sky laws of the
various states), conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an individual, or any indenture,
loan agreement, mortgage, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which any property of such Selling
Stockholder is bound or violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over such Selling Stockholder or any property of such
Selling Stockholder.
19
Appendix D
----------
FORM OF OPINION OF BEARTEL COUNSEL:
1. BearTel Corp. is the lawful owner of the Shares to be sold by such
Selling Stockholder pursuant to the Underwriting Agreement and owns such Shares,
free of all restrictions on transfer, liens, encumbrances, security interests,
equities and claims whatsoever other than pursuant to the Custody Agreement, the
Power of Attorney, the Underwriting Agreement and other than any such
restriction on transfer, lien, encumbrance, equity or claim created by an
Underwriter or resulting from any actions taken by an Underwriter.
2. BearTel Corp. has full corporate power and authority, and all
authorization and approval required by law, to enter into the Underwriting
Agreement and the Custody Agreement and the Power of Attorney of such Selling
Stockholder and to sell, assign, transfer and deliver the Shares to be sold by
such Selling Stockholder in the manner provided herein and therein.
3. The Custody Agreement of BearTel Corp. has been duly authorized,
executed and delivered by such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder, enforceable in accordance with its terms.
4. The Power of Attorney of BearTel Corp. has been duly authorized,
executed and delivered by such Selling Stockholder and is a valid and binding
instrument of such Selling Stockholder, enforceable in accordance with its
terms, and, pursuant to such Power of Attorney, such Selling Stockholder has,
among other things, authorized the Attorneys, or any one of them, to execute and
deliver on such Selling Stockholder's behalf this Agreement and any other
document they, or any one of them, may deem necessary or desirable in connection
with the transactions contemplated hereby and thereby and to deliver the Shares
to be sold by such Selling Stockholder pursuant to this Agreement.
5. Upon sale and delivery of and payment for the Shares to be sold by
BearTel Corp. pursuant to the Underwriting Agreement, in the manner contemplated
thereby and by the Power of Attorney and Custody Agreement of BearTel Corp., and
assuming the Underwriters purchase such Shares for value and in good faith
without notice of any adverse claim, the Underwriters will own such Shares, free
and clear of all restrictions on transfer, liens, encumbrances, security
interests, equities and claims whatsoever other than any such restriction on
transfer, lien, encumbrance, equity or claim created by an Underwriter or
resulting from any actions taken by an Underwriter.
6. Assuming that the representations and warranties of the Company in
Section 6 of the Underwriting Agreement are true and accurate in all material
respects, effectiveness
20
of the Registration Statement and closing of the Offering as contemplated by the
Underwriting Agreement and the Prospectus, (a) no authorization, consent,
approval or other action by, and no notice to or filing with, any U.S. federal
or New York State court, governmental body or regulatory agency is required for
the due execution, delivery and performance by BearTel Corp. of the Underwriting
Agreement, the Power of Attorney and the Custody Agreement (except such as may
be required under the securities or Blue Sky laws of the State of New York), and
(b) the execution, delivery, and performance by BearTel Corp. of the
Underwriting Agreement, the Power of Attorney and the Custody Agreement do not
and will not (i) breach any of the terms and provisions of, or constitute a
default under, any agreement or instrument to which it is a party or by which
any of its properties is bound or (ii) violate or conflict with any provision of
any law or any rule, regulation, judgment, order or decree of any court or any
governmental body or regulatory agency having jurisdiction over BearTel Corp. or
any of its properties.
21
