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EXHIBIT 1.1
EXULT, INC.
(a Delaware corporation)
8,500,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: July ___, 2001
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TABLE OF CONTENTS
PAGE
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SECTION 1. Representations and Warranties..................................................3
(a) Representations and Warranties by the Company.................................3
(i) Compliance with Registration Requirements..............................4
(ii) Incorporated Documents.................................................4
(iii) Independent Accountants................................................5
(iv) Financial Statements...................................................5
(v) No Material Adverse Change in Business.................................5
(vi) Good Standing of the Company...........................................5
(vii) Good Standing of Subsidiaries..........................................6
(viii) Capitalization.........................................................6
(ix) Authorization of Agreement.............................................6
(x) Authorization and Description of Securities............................6
(xi) Securities Subject to Stock Options....................................7
(xii) Absence of Defaults and Conflicts......................................7
(xiii) Absence of Labor Dispute...............................................8
(xiv) Absence of Proceedings.................................................8
(xv) Accuracy of Exhibits...................................................8
(xvi) Possession of Intellectual Property....................................8
(xvii) Absence of Further Requirements........................................8
(xviii)Possession of Licenses and Permits ....................................9
(xix) Title to Property......................................................9
(xx) Compliance with Cuba Act...............................................9
(xxi) Investment Company Act.................................................9
(xxii) Environmental Laws.....................................................9
(xxiii)Registration Rights ..................................................10
(b) Representations and Warranties of the Selling Shareholders...................10
(i) Accurate Disclosure...................................................10
(ii) Authorization of Agreements...........................................11
(iii) Payment for Securities Subject to Option; Title to Securities.........12
(iv) Due Execution of Power of Attorney and Custody Agreement..............12
(v) Absence of Manipulation...............................................13
(vi) Absence of Further Requirements.......................................13
(vii) Restriction on Sale of Securities.....................................13
(viii) Certificates Suitable for Transfer....................................13
(ix) No Association with NASD..............................................13
(x) Selling Shareholder's Stock Options...................................13
(c) Officer's Certificates.......................................................14
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing................................14
(a) Initial Securities...........................................................14
(b) Option Securities............................................................14
(c) Failure to Deliver Shares....................................................15
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(d) Payment......................................................................15
(e) Denominations; Registration..................................................16
SECTION 3. Covenants of the Company.......................................................16
(a) Compliance with Securities Regulations and Commission Requests...............16
(b) Filing of Amendments.........................................................16
(c) Delivery of Registration Statements..........................................17
(d) Delivery of Prospectuses.....................................................17
(e) Continued Compliance with Securities Laws....................................17
(f) Blue Sky Qualifications......................................................18
(g) Rule 158.....................................................................18
(h) Use of Proceeds..............................................................18
(i) Listing......................................................................18
(j) Restriction on Sale of Securities............................................18
(k) Reporting Requirements.......................................................19
SECTION 4. Payment of Expenses............................................................19
(a) Expenses.....................................................................19
(b) Expenses of the Selling Shareholders.........................................19
(c) Termination of Agreement.....................................................19
(d) Allocation of Expenses.......................................................20
SECTION 5. Conditions of U.S. Underwriters' Obligations...................................20
(a) Effectiveness of Registration Statement......................................20
(b) Opinion of Counsel for Company...............................................20
(c) Opinion of Counsel for the Selling Shareholders..............................20
(d) Opinion of General Counsel for Company.......................................21
(e) Opinion of Counsel for U.S. Underwriters.....................................21
(f) Officers' Certificate........................................................21
(g) Certificate of Selling Shareholder...........................................22
(h) Accountant's Comfort Letters.................................................22
(i) Bring-down Comfort Letter....................................................22
(j) Approval of Listing..........................................................22
(k) No Objection.................................................................22
(l) Lock-up Agreements...........................................................22
(m) Purchase of Initial International Securities.................................22
(n) Deposit of Options under Custody Agreements..................................22
(o) Conditions to Purchase of U.S. Option Securities.............................23
(i) Officers' Certificate.................................................23
(ii) Certificate of Selling Shareholders...................................23
(iii) Opinion of Counsel for Company........................................23
(iv) Opinion of Counsel for the Selling Shareholders.......................23
(v) Opinion of General Counsel for Company................................23
(vi) Opinion of Counsel for U.S. Underwriters..............................23
(vii) Bring-down Comfort Letter.............................................23
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(p) Additional Documents.........................................................24
(q) Termination of Agreement.....................................................24
SECTION 6. Indemnification................................................................24
(a) Indemnification of U.S. Underwriters by the Company and Management
Selling Shareholders.........................................................24
(b) Indemnification of U.S. Underwriters by the Other Selling Shareholders.......25
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders.................................................................27
(d) Actions against Parties; Notification........................................27
(e) Settlement without Consent if Failure to Reimburse...........................28
(f) Other Agreements with Respect to Indemnification.............................28
SECTION 7. Contribution...................................................................28
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................30
SECTION 9. Termination of Agreement.......................................................30
(a) Termination; General.........................................................30
(b) Liabilities..................................................................31
SECTION 10. Default by One or More of the U.S. Underwriters...............................31
SECTION 11. Default by One or More of the Selling Shareholders or the Company.............32
SECTION 12. Notices.......................................................................32
SECTION 13. Parties.......................................................................32
SECTION 14. GOVERNING LAW AND TIME........................................................33
SECTION 15. Effect of Headings............................................................33
SCHEDULES
Schedule A - List of U.S. Underwriters...............................Sch A-1
Schedule B - List of Selling Shareholders............................Sch B-1
Schedule C - Pricing Information.....................................Sch C-1
Schedule D - List of Persons and Entities Subject to Lock-up.........Sch D-1
Schedule 1(b)(ix) Schedule of Exceptions to Section 1(b)(ix)....Sch 1(b)(ix)
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel........................A-1
Exhibit B - Form of Opinion of Counsel for the Selling Shareholders.....B-1
Exhibit C - Form of Opinion of General Counsel to the Company...........C-1
Exhibit D - Form of Lock-up Letter......................................D-1
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EXULT, INC.
(a Delaware corporation)
8,500,000 Shares of Common Stock
(Par Value $0.0001 Per Share)
U.S. PURCHASE AGREEMENT
July ___, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx, Sachs & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
as U.S. Representatives of the several U.S. Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Exult, Inc., a Delaware corporation (the "Company"), the persons listed
in Schedule B hereto under the caption "Management Selling Shareholders" (the
"Management Selling Shareholders") and the persons listed in Schedule B hereto
under the caption "Other Selling Shareholders" (the "Other Selling Shareholders"
and together with the Management Selling Shareholders, the "Selling
Shareholders"), confirm their respective agreements with Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of
the other U.S. Underwriters named in Schedule A hereto (collectively, the "U.S.
Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx & Co.,
Xxxxxxx, Sachs & Co. and Xxxxxxx Xxxxx Xxxxxx Inc. are acting as representatives
(in such capacity, the "U.S. Representatives"), with respect to (i) the sale by
the Company and the Selling Shareholders and the purchase by the U.S.
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $0.0001 per share, of the Company ("Common
Stock") set forth in Schedules A and B hereto and (ii) the grant by the Company
and certain of the Selling Shareholders to the U.S. Underwriters, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 1,275,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 8,500,000 shares of Common Stock (the
"Initial U.S. Securities") to be purchased by the U.S. Underwriters and all or
any part of the 1,275,000 shares of Common Stock subject to the option described
in Section 2(b) hereof (the "U.S. Option Securities") are hereinafter called,
collectively, the "U.S. Securities".
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for
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the offering by the Company and the Selling Shareholders of an aggregate of
1,500,000 shares of Common Stock (the "Initial International Securities")
through arrangements with certain underwriters outside the United States and
Canada (the "International Managers") for which Xxxxxxx Xxxxx International,
Xxxxxxx Sachs International and Solomon Brothers International Limited are
acting as lead managers (the "Lead Managers") and the grant by the Company and
certain of the Selling Shareholders to the International Managers, acting
severally and not jointly, of an option to purchase all or any part of the
International Managers' pro rata portion of up to 225,000 additional shares of
Common Stock solely to cover overallotments, if any (the "International Option
Securities" and, together with the U.S. Option Securities, the "Option
Securities"). The Initial International Securities and the International Option
Securities are hereinafter called the "International Securities". It is
understood that the Company is not obligated to sell and the U.S. Underwriters
are not obligated to purchase, any Initial U.S. Securities unless all of the
Initial International Securities are contemporaneously purchased by the
International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", and the U.S. Securities, and the
International Securities are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement"), providing for
the coordination of certain transactions among the Underwriters under the
direction of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Shareholders understand that the U.S.
Underwriters propose to make a public offering of the U.S. Securities as soon as
the U.S. Representatives deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-64116) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to
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paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each Form of
U.S. Prospectus and Form of International Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of U.S.
Prospectus and the final Form of International Prospectus, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the forms first furnished to the U.S. Underwriters for
use in connection with the offering of the Securities are herein called the
"U.S. Prospectus" and the "International Prospectus," respectively, and
collectively the "Prospectuses." If Rule 434 is relied on, the terms "U.S.
Prospectus" and "International Prospectus" shall refer to the preliminary U.S.
Prospectus dated July 12, 2001 and the preliminary International Prospectus
dated July 12, 2001, respectively, each together with the applicable Term Sheet
and all references in this Agreement to the date of the Prospectuses shall mean
the date of the applicable Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the U.S.
Prospectus, the International Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus and including the Form of
U.S. Prospectus and Form of International Prospectus or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and the Form of International Prospectus)
or the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus (including the Form of U.S. Prospectus and the Form of International
Prospectus) or the Prospectuses shall be deemed to mean and include the filing
of any document under the Securities Exchange Act of 1934 (the "1934 Act") which
is incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(d) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
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(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading. Neither the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any
such amendment or supplement was issued and at the Closing Time (and, if
any U.S. Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. If Rule 434 is used, the Company will
comply with the requirements of Rule 434. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or U.S. Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any U.S. Underwriter through the U.S.
Representatives expressly for use in the Registration Statement or U.S.
Prospectus.
Each preliminary prospectus and the prospectuses 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 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and the
Prospectuses, when they became effective or at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations or the 1934
Act and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other information
in the Prospectuses, at the time the Registration Statement became effective, at
the time the Prospectuses was issued and at the Closing Time (and, if any U.S.
Option Securities are
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purchased, at the Date of Delivery), did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) Financial Statements. The financial statements included in
the Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified (subject, in the case of
unaudited financial statements, to ordinary year-end adjustments); said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules included in the Registration
Statement present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the Registration
Statement and the Prospectuses present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(v) No Material Adverse Change in Business. Since December 31,
2000, except as otherwise stated in the Registration Statement or the
Prospectuses, (A) there has been no material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
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(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of Regulation
S-X) and Exult Limited and Exult Equity Partners, Inc. (each a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses and
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
such Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary. The only subsidiaries of the Company are the
subsidiaries listed on Exhibit 21.1 to the Company's registration statement on
Form S-1 (No. 333-31754).
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to the International
Purchase Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectuses or pursuant to the exercise of convertible
securities or options referred to in the Prospectuses). The shares of issued and
outstanding capital stock of the Company, including the outstanding Securities
to be purchased by the Underwriters from the Selling Shareholders, have been
duly authorized and validly issued and are fully paid and non-assessable; none
of the outstanding shares of capital stock of the Company, including the
Securities to be purchased by the Underwriters from the Selling Shareholders,
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement and the
International Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(x) Authorization and Description of Securities. The Securities
to be purchased by the Underwriters from the Company have been duly authorized
for issuance and sale to the U.S. Underwriters pursuant to this Agreement and
the International Managers pursuant to the International Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant to this
Agreement and the International Purchase Agreement, respectively, against
payment of the consideration set forth herein and therein, will be validly
issued, fully paid and non-assessable; the Common Stock conforms in all material
respects with all statements relating thereto contained in the Prospectuses and
such description conforms in all material respects with the rights set forth in
the instruments defining the same; no holder of the Securities will be subject
to personal liability by reason of being such a holder; and the issuance of the
Securities is not subject to the preemptive or other similar rights of any
securityholder of the Company.
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(xi) Securities Subject to Stock Options. The employee stock
options exercised by certain Selling Shareholders in connection with the
transactions contemplated by the Custody Agreement (as defined below), the Power
of Attorney (as defined below), this Agreement and the International Purchase
Agreement (the "Stock Options") were granted to such Selling Shareholder, were
fully vested and could be exercised by such Selling Shareholder in accordance
with the 1999 Stock Option/Stock Incentive Plan, the 1999 Special Executive
Stock Option Plan or the 2000 Equity Incentive Plan under which they were issued
(each, a "Plan") at the time such Stock Options were exercised; and, prior to
the Closing Time (as defined below), the Company will issue certificates in
negotiable form representing the number of Securities that, when taken together
with Securities represented by certificates deposited with the custodian under
the Custody Agreement of such Selling Shareholder, will be sufficient to allow
the Selling Shareholder to satisfy its obligations under this Agreement and the
International Purchase Agreement at the Closing Time and such Securities will
not be subject to any right of repurchase or other similar right in favor of the
Company.
(xii) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or By-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments"), except for
such violations or defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement and the
International Purchase Agreement and the consummation of the transactions
contemplated herein and therein and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action and do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults, liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of (i) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their assets, properties or operations
(excluding the state and foreign securities laws or the rules and regulations of
the National Association of Securities Dealers, Inc. (the "NASD")), except for
violations that would not have a Material Adverse Effect or (ii) the charter or
By-laws of the Company or any subsidiary. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any subsidiary.
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(xiii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
International Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party or of
which any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectuses or the documents incorporated by reference therein or to be filed
as exhibits thereto which have not been so described and filed as required.
(xvi) Possession of Intellectual Property. To the best of the
Company's knowledge, as of the Effective Date and the Closing Date, the Company
and its subsidiaries own or possess, or can acquire on reasonable terms,
adequate 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,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property of the Company or of any facts or
circumstances which would render any Intellectual Property of the Company
invalid or inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse Effect.
(xvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder or
under the International Purchase Agreement, in connection with the offering,
issuance or sale of the Securities hereunder or thereunder or the consummation
of the transactions contemplated by this Agreement or the International Purchase
Agreement, except (i) such as have been already obtained as or may be required
under federal, state or
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foreign securities laws, and (ii) such as may be required under the rules and
regulations of the NASD.
(xviii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them and the Company and its subsidiaries
are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to possess or comply would not, singly or
in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xix) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Prospectuses or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Prospectuses, are in full
force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xx) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act"), or is exempt therefrom.
(xxi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as contemplated herein and in the
International Purchase Agreement and the application of the net proceeds
therefrom as described in the Prospectuses will not be, an "investment company"
or an entity "controlled" by an "investment company" as such terms are defined
in the Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) to the best of the Company's knowledge,
neither the Company nor any of its subsidiaries is in
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violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or,
to the knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) the
Company is not aware after due inquiry of any events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxiii) Registration Rights. The Company is in material
compliance with the terms and conditions of that certain Amended and Restated
Registration Rights Agreement among the Company and certain of its stockholders
identified therein, dated December 23, 1999, as amended by that certain
Amendment No. 1 to Amended and Restated Registration Rights Agreement. Except as
set forth in the Prospectuses under the caption "Selling Shareholders", there
are no other persons with registration rights or other similar rights to have
any securities registered pursuant to the Registration Statement which have not
been waived.
(b) Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder severally, and not jointly, represents and warrants to each
U.S. Underwriter as of the date hereof, as of the Closing Time, and, if the
Selling Shareholder is selling U.S. Option Securities on a Date of Delivery, as
of each such Date of Delivery, and agrees with each Underwriter, as follows:
(i) Accurate Disclosure.
(A) If such Selling Shareholder is a Management Selling
Shareholder, to the knowledge of such Management Selling Shareholder,
the representations and warranties of the Company contained in Section
1(a) hereof are true and correct; such Management Selling Shareholder
has reviewed and is familiar with the Registration Statement and the
Prospectuses and neither the Prospectuses nor any amendments or
supplements thereto includes any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; such Management Selling Shareholder is not prompted to
sell the Securities to be sold by such Management Selling Shareholder
hereunder or under the International Purchase
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Agreement by any material information concerning the Company or any
subsidiary of the Company which is not set forth in the Prospectuses.
(B) If such Selling Shareholder is an Other Selling
Shareholder, neither the Prospectuses nor any amendments or supplements
thereto includes any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein
(in so far as they have been included in the Prospectuses in reliance
upon and in conformity with written information furnished to the Company
by such Other Selling Shareholder expressly for use therein), in the
light of the circumstances under which they were made, not misleading.
(ii) Authorization of Agreements.
(A) Each Selling Shareholder has the full right, power
and authority to enter into this Agreement, the International Purchase
Agreement, a Power of Attorney between such Selling Shareholder and
Xxxxx X. Xxxxxx, V and Xxxxxxx X. Xxxx acting singly or together, as
attorney(s)-in-fact (the "Attorney(s)-in-Fact") (a "Power of Attorney")
and a Custody Agreement between such Selling Shareholder and U.S. Stock
Transfer Corporation as custodian (the "Custody Agreement") and to sell,
transfer and deliver the Securities to be sold by such Selling
Shareholder hereunder and thereunder.
(B) The execution and delivery of this Agreement, the
International Purchase Agreement, the Power of Attorney and the Custody
Agreement, the consummation of the transactions by such Selling
Shareholder contemplated herein and therein, the compliance by such
Selling Shareholder with its obligations hereunder and thereunder and
the sale and delivery of the Securities to be sold by such Selling
Shareholder hereunder and thereunder have been duly authorized by such
Selling Shareholder and do not and will not, whether with or without the
giving of notice or passage of time or both (i) conflict with or
constitute a breach of, or default under, (ii) give rise to any right of
termination, cancellation or acceleration of any right or obligation of
the Selling Shareholder or loss of any benefit to which the Selling
Shareholder is entitled under, or (iii) result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities
to be sold by such Selling Shareholder or any property or assets of such
Selling Shareholder pursuant to, any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which such Selling Shareholder is a party or
by which such Selling Shareholder may be bound, or to which any of the
property or assets of such Selling Shareholder is subject, except, in
each case, as will not have or is not reasonably expected to have a
material adverse effect on such Selling Shareholder.
(C) The execution and delivery of this Agreement, the
International Purchase Agreement, the Power of Attorney and the Custody
Agreement, the consummation of the transactions by such Selling
Shareholder contemplated herein and therein, the compliance by such
Selling Shareholder with its obligations hereunder and thereunder and
the sale and delivery of the Securities to be sold by such Selling
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Shareholder hereunder and thereunder do not and will not, whether with
or without the giving of notice or passage of time or both, result in
any violation of the provisions of the charter or By-laws or other
organizational instrument of such Selling Shareholder, if applicable, or
any applicable treaty, law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over such Selling Shareholder
or any of its properties (excluding federal, state and foreign
securities laws and the rules and regulations of the NASD and the
Nasdaq), except for violations that will not have or is not reasonably
expected to have a material adverse effect on such Selling Shareholder.
(D) The Power of Attorney and the Custody Agreement of
each Selling Shareholder is a valid and binding agreement of such
Selling Shareholder, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principals of
equity.
(iii) Payment for Securities Subject to Option; Title to
Securities. If the Securities to be delivered by the Selling Shareholder were
issued upon the exercise of outstanding options therefor pursuant to the Custody
Agreement, the aggregate exercise price of such options will have been paid to
the Company in full as of the Closing Time. Such Selling Shareholder has and
will at the Closing Time and, if any U.S. Option Securities are purchased, on
the Date of Delivery have title to the U.S. Securities to be sold by such
Selling Shareholder hereunder, free and clear of any adverse claim (within the
meaning of the New York Uniform Commercial Code), other than pursuant to this
Agreement, the International Purchase Agreement or the Custody Agreement to
which such Selling Shareholder is a party; and upon delivery of such Securities
and payment of the purchase price therefor as herein contemplated, assuming each
such U.S. Underwriter is otherwise a bona fide purchaser and has no notice of
any adverse claim (within the meaning of the New York Uniform Commercial Code),
each of the U.S. Underwriters will receive title to the Securities purchased by
it from such Selling Shareholder, free and clear of any adverse claim (within
the meaning of the New York Uniform Commercial Code).
(iv) Due Execution of Power of Attorney and Custody Agreement.
Such Selling Shareholder has duly executed and delivered, in the form heretofore
furnished to the U.S. Representatives, the Power of Attorney and the Custody
Agreement; the custodian under such Custody Agreement is authorized to deliver
the U.S. Securities to be sold by such Selling Shareholder hereunder and to
accept payment therefor on behalf of such Selling Shareholder; and each
Attorney-in-Fact is authorized to execute and deliver this Agreement, the
International Purchase Agreement, the certificate referred to in Section 5(g) or
that may be required pursuant to Section(s) 5(o)(ii) and 5(p) on behalf of such
Selling Shareholder, to sell, assign and transfer to the U.S. Underwriters the
U.S. Securities to be sold by such Selling Shareholder hereunder, to exercise on
such Selling Shareholder's behalf the relevant Stock Options, as applicable, to
determine the purchase price to be paid by the U.S. Underwriters to such Selling
Shareholder, as provided in Section 2(a) hereof, to authorize the delivery of
the U.S. Securities to be sold by such Selling Shareholder hereunder and under
the International Purchase Agreement, to accept payment therefor, and otherwise
to act on behalf of such Selling Shareholder in connection with
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this Agreement and the International Purchase Agreement in accordance with the
Power of Attorney of such Selling Shareholder.
(v) Absence of Manipulation. Such Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(vi) Absence of Further Requirements. The execution, delivery
and performance of this Agreement, the International Purchase Agreement, the
Power of Attorney and the Custody Agreement by such Selling Shareholder and sale
and delivery of the Securities to be sold and delivered by such Selling
Shareholder under this Agreement and the International Purchase Agreement does
not require any action, consent, order, qualification, decree, approval by or in
respect of, or filing or registration with (A) any governmental authority or
agency, domestic or foreign, except such as have been already obtained and
except (i) as or may be required under federal, state or foreign securities
laws, and (ii) such as may be required under the rules and regulations of the
NASD or Nasdaq, and (B) any individual, corporation, partnership, association,
trust or other entity or organization, except for those actions, consents,
orders, qualifications with, decrees, approvals, filings or registrations, the
failure of which to be obtained or made would not have a material adverse effect
on such Selling Shareholder.
(vii) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectuses, such Selling Shareholder will comply
with the terms of the lock-up agreement, a form of which is attached hereto as
Exhibit D, unless such Selling Shareholder has received the prior written
consent of the Global Coordinator.
(viii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by such Selling Shareholder pursuant to this
Agreement and the International Purchase Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of transfer or
assignment in blank with signatures guaranteed, have been placed in custody with
the Custodian with irrevocable conditional instructions to deliver such
Securities to the U.S. Underwriters pursuant to this Agreement and to the Lead
Managers pursuant to the International Purchase Agreement.
(ix) No Association with NASD. Other than as set forth on
Schedule 1(b)(ix), neither such Selling Shareholder nor any of his or its
affiliates directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with any member firm of the
National Association of Securities Dealers, Inc., or is a "person associated
with a member" or an "associated person of a member" (as such terms are defined
in Article I of the By-laws of the NASD).
(x) Selling Shareholder's Stock Options. Any Stock Options
exercised by or on behalf of such Selling Shareholder in connection with the
transactions contemplated by the relevant Custody Agreement, the relevant Power
of Attorney, this Agreement and the International Purchase Agreement had been
granted to such Selling Shareholder, at the time of exercise were fully vested
and were exercised by such Selling Shareholder in accordance with
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the Plan under which they were issued. The Company is obligated to issue, at or
prior to the Closing Time, certificates in negotiable form representing the
number of Securities issued upon the exercise of the Selling Shareholder's
exercised Stock Options and such Securities are not subject to any right of
repurchase or other similar right in favor of the Company. Such Selling
Shareholder has deposited certificates representing a sufficient number of
Securities and/or exercised Stock Options pursuant to an irrevocable notice of
exercise deposited with the custodian under such Selling Shareholder's Custody
Agreement that, when taken together, will allow such Selling Shareholder to
fulfill his or its obligations under this Agreement and the International
Purchase Agreement.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the U.S.
Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the Global Coordinator, the U.S.
Representatives or to counsel for the U.S. Underwriters pursuant to the terms of
this Agreement shall be deemed a representation and warranty by such Selling
Shareholder to the U.S. Underwriters as to the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder, severally and not jointly,
agree to sell to each U.S. Underwriter, severally and not jointly, and each U.S.
Underwriter, severally and not jointly, agrees to purchase from the Company and
each Selling Shareholder, at the price per share set forth in Schedule C, that
proportion of the number of Initial U.S. Securities set forth in Schedule B
opposite the name of the Company or such Selling Shareholder, as the case may
be, which the number of Initial U.S. Securities set forth in Schedule A opposite
the name of such U.S. Underwriter, plus any additional number of Initial U.S.
Securities which such U.S. Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof, bears to the total number of Initial
U.S. Securities, subject, in each case, to such adjustments among the U.S.
Underwriters as the U.S. Representatives in their sole discretion shall make to
eliminate any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company and the Selling Shareholders, acting severally and not
jointly, hereby grant an option to the U.S. Underwriters, severally and not
jointly, to purchase up to an additional 1,275,000 shares of Common Stock, as
set forth in Schedule B at the price per share set forth in Schedule C, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company and the Selling Shareholders setting forth the number
of U.S.
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Option Securities as to which the several U.S. Underwriters are then exercising
the option and the time and date of payment and delivery for such U.S. Option
Securities. Any such time and date of delivery for U.S. Option Securities (a
"Date of Delivery") shall be determined by the Global Coordinator, but shall not
be later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the U.S. Option Securities, each of the
U.S. Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of U.S. Option Securities then being purchased
which the number of Initial U.S. Securities set forth in Schedule A opposite the
name of such U.S. Underwriter bears to the total number of Initial U.S.
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares. The option granted hereby shall be, to the extent exercised, exercised
by the U.S. Underwriters first for the purchase of Option Securities to be sold
by the Company set forth on Schedule B, if any, until all such shares have been
so sold and shall thereafter be exercised by the U.S. Underwriters for the
purchase of Option Securities to be sold by the Selling Shareholders, as set
forth on Schedule B.
(c) Failure to Deliver Shares. If a Selling Shareholder shall fail at
Closing Time or at a Date of Delivery, as the case may be, to sell and deliver
the number of U.S. Securities which such Selling Shareholder or Selling
Shareholders are obligated to sell hereunder, and the remaining Selling
Shareholders do not exercise their right to increase, pro rata or otherwise, the
number of U.S. Securities to be sold by them hereunder to the total number to be
sold by all Selling Shareholders as set forth in Schedule B hereto, the Company
agrees that it will sell and deliver or arrange for the sale and delivery of a
number of shares of Common Stock to the U.S. Underwriters that is equal to the
U.S. Securities that such Selling Shareholder or Selling Shareholders have
failed to so sell and deliver, or such lesser number of shares of Common Stock
as may be requested by the U.S. Representatives and such shares of Common Stock
shall be deemed to constitute Initial U.S. Securities or U.S. Option Securities,
as the case may be.
(d) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial U.S. Securities shall be made at the offices of
Xxxxxx & Xxxxxxx, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxx Xxxx, Xxxxxxxxxx
00000, or at such other place as shall be agreed upon by the Global Coordinator
and the Company, at 7:00 A.M. (California time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Global Coordinator and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Selling Shareholders, on each Date of Delivery as
specified in the notice from the Global Coordinator to the Selling Shareholders.
Payment shall be made to the Company and the Selling Shareholders by
wire transfer of immediately available funds to bank accounts designated by the
Company and the Custodian
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pursuant to each Selling Shareholder's Power of Attorney and Custody Agreement,
as the case may be, against delivery to the U.S. Representatives for the
respective accounts of the U.S. Underwriters of certificates for the U.S.
Securities to be purchased by them. It is understood that each U.S. Underwriter
has authorized the U.S. Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial U.S.
Securities and the U.S. Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the U.S.
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial U.S. Securities or the U.S. Option Securities, if any, to
be purchased by any U.S. Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such U.S. Underwriter from its obligations hereunder.
(e) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in the city of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
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Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Global Coordinator with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Global Coordinator or
counsel for the U.S. Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or,
if requested, will deliver to the U.S. Representatives and counsel for the U.S.
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the U.S.
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the U.S. Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus and
final prospectus as such U.S. Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each U.S. Underwriter, without charge, during
the period when the U.S. Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the U.S. Prospectus (as amended or
supplemented) as such U.S. Underwriter may reasonably request. The U.S.
Prospectus and any amendments or supplements thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement, the International Purchase Agreement and in
the Prospectuses. If at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the U.S. Underwriters or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that the
Prospectuses will not include any untrue statements of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading, in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectuses in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements, and the Company
will furnish to the U.S. Underwriters such number of copies of such amendment or
supplement as the U.S. Underwriters may reasonably request.
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(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in a manner not inconsistent with the use set
forth in the Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq National Market and will
file with the Nasdaq National Market all documents and notices required by the
Nasdaq National Market of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
National Market.
(j) Restriction on Sale of Securities. During a period of 90 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly, 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 any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act (other than on Form S-8) with respect
to any of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder, (B) the
Securities to be sold under the International Purchase Agreement, (C) any shares
of Common Stock issued by the Company upon the exercise of an option or warrant
or the conversion of a security outstanding on the date hereof and referred to
in the Prospectuses, (D) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit plans of the
Company
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referred to in the Prospectuses, or (E) any shares of Common Stock issued
pursuant to any non-employee director stock plan or dividend reinvestment plan.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities and (x)
the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market.
(b) Expenses of the Selling Shareholders. Each Selling Shareholder,
severally and not jointly, will pay all expenses incident to the performance of
its own obligations under, and the consummation of the transactions to be
engaged in by him or it as contemplated by this Agreement, including (i) any
stamp duties, capital duties and stock transfer taxes, if any, payable upon the
sale of the Securities to the Underwriters, and their transfer between the
Underwriters pursuant to an agreement between such Underwriters, and (ii) the
fees and disbursements of their respective counsel and accountants.
(c) Termination of Agreement. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Company shall reimburse the U.S. Underwriters
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the U.S. Underwriters.
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(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders may make for
the sharing or allocation of such costs and expenses.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The obligations
of the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the U.S. Underwriters, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit A hereto and to such further
effect as counsel to the U.S. Underwriters may reasonably request. In rendering
such opinion, such counsel may rely as to matters of fact (but not as to legal
conclusions), to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. Such opinion shall not state that
it is to be governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of such counsel to the Selling Shareholders as is acceptable to
the U.S. Underwriters, in form and substance satisfactory to counsel for the
U.S. Underwriters, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters substantially to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the U.S. Underwriters
may reasonably request. In rendering such opinion, such counsel may rely as to
matters of fact (but not as to legal conclusions), to the extent they deem
proper, on certificates of the Selling Shareholders, responsible officers of the
Company and public officials. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other
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document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
(d) Opinion of General Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion dated as of Closing
Time, of in-house General Counsel for the Company, in form and substance
satisfactory to counsel for the U.S. Underwriters, together with the signed or
reproduced copies of such letter for each of the other U.S. Underwriters to the
effect set forth in Exhibit C hereto and to such further effect as counsel to
the U.S. Underwriters may reasonably request. In rendering such opinion, such
counsel may rely as to matters of fact (but not as to legal conclusions), to the
extent he deems proper, on certificates of responsible officers of the Company
and public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
(e) Opinion of Counsel for U.S. Underwriters. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx & Xxxxxxx, counsel for the U.S. Underwriters, together with
signed or reproduced copies of such letter for each of the other U.S.
Underwriters with respect to the matters set forth in clauses (i), (ii) (to the
knowledge of such counsel), (iv), (v) (solely as to preemptive or other similar
rights arising by operation of law or under the charter or By-laws of the
Company), (vii) through (ix), (xi)(A) and (xvii) of Exhibit A. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of California and the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the U.S.
Representatives. In rendering such opinion, such counsel may rely as to matters
of fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
(f) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the U.S. Representatives shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, or any development involving a prospective material adverse change, (ii)
the representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of Closing
Time, (iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing Time,
and (iv) no stop order suspending the effectiveness of the
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Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(g) Certificate of Selling Shareholder. At Closing Time, the U.S.
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of each Selling Shareholder contained in
Section 1(b) hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(h) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the U.S. Representatives shall have received from Xxxxxx Xxxxxxxx
LLP, a letter dated such date, in form and substance satisfactory to the U.S.
Representatives, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters containing statements and information 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 Prospectuses.
(i) Bring-down Comfort Letter. At Closing Time, the U.S. Representatives
shall have received from Xxxxxx Xxxxxxxx LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(j) Approval of Listing. At Closing Time, the Securities shall have been
approved for inclusion in the Nasdaq National Market, subject only to official
notice of issuance.
(k) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(l) Lock-up Agreements. At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in the form of
Exhibit D hereto signed by the persons listed on Schedule D hereto.
(m) Purchase of Initial International Securities. Contemporaneously with
the purchase by the U.S. Underwriters of the Initial U.S. Securities under this
Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(n) Deposit of Options under Custody Agreements. On or prior to the date
of this Agreement, each Selling Shareholder that is selling Securities subject
to such Selling Shareholder's Stock Options, shall have deposited with the
custodian under the Custody Agreement of such Selling Shareholder an irrevocable
notice of exercise in the form attached to the Custody Agreement, and the
Attorney-in-Fact shall have exercised such number of Stock Options that, upon
exercise in full, shall have resulted in a number of Securities that, when added
to the Securities represented by certificates deposited with the custodian under
the Custody
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Agreement of such Selling Shareholder, shall equal the maximum aggregate number
of Securities which may be sold by such Selling Shareholder under this Agreement
and the International Purchase Agreement.
(o) Conditions to Purchase of U.S. Option Securities. In the event that
the U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. Option Securities, the representations
and warranties of the Company and the Selling Shareholders contained herein and
the statements in any certificates furnished by the Company, any subsidiary of
the Company and the Selling Shareholders hereunder shall be true and correct as
of each Date of Delivery and, at the relevant Date of Delivery, the U.S.
Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(f) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholders. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of each Selling
Shareholder confirming that the certificate delivered at Closing Time pursuant
to Section 5(g) remains true and correct as of such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in form and substance
satisfactory to counsel for the U.S. Underwriters, dated such Date of Delivery,
relating to the U.S. Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section 5(b) hereof.
(iv) Opinion of Counsel for the Selling Shareholders. The
favorable opinion of such counsel to the Selling Shareholders as is acceptable
to the U.S. Underwriters, in form and substance satisfactory to counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(c) hereof.
(v) Opinion of General Counsel for Company. The favorable
opinion of in-house General Counsel to the Company, in form and substance
reasonably satisfactory to counsel for the U.S. Underwriters dated such Date of
Delivery, relating to the U.S. Option Securities to be purchase on such Date of
Delivery and otherwise to the same effect as the opinion required by Section
5(d) hereof.
(vi) Opinion of Counsel for U.S. Underwriters. The favorable
opinion of Xxxxxx & Xxxxxxx, counsel for the U.S. Underwriters, dated such Date
of Delivery, relating to the U.S. Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinion required by Section
5(e) hereof.
(vii) Bring-down Comfort Letter. A letter from Xxxxxx Xxxxxxxx
LLP, in form and substance satisfactory to the U.S. Representatives and dated
such Date of Delivery,
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substantially in the same form and substance as the letter furnished to the U.S.
Representatives pursuant to Section 5(h) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date not
more than five days prior to such Date of Delivery.
(p) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the U.S. Underwriters shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be satisfactory
in form and substance to the U.S. Representatives and counsel for the U.S.
Underwriters.
(q) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of U.S. Option
Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwriters to purchase the relevant U.S.
Option Securities, may be terminated by the U.S. Representatives by notice to
the Company at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters by the Company and Management
Selling Shareholders. The Company and each Management Selling Shareholder,
jointly and severally, agrees to indemnify and hold harmless each U.S.
Underwriter and each person, if any, who controls any U.S. Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the
extent and in the manner set forth in subsections (i), (ii) and (iii) of this
Section 6(a) below.
(i) from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the U.S. Prospectus (or
any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any
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litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission; provided that (subject to Section 6(e)
below) any such settlement is effected with the written consent of the
Company; and
(iii) from and against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by
Xxxxxxx Xxxxx), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any U.S. Underwriter through the U.S. Representatives expressly for
use in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto); and
provided further that the Company and the Management Selling Shareholders will
not be liable to any U.S. Underwriter with respect to any U.S. Prospectus to the
extent that the Company shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted from the fact that such U.S.
Underwriter, in contravention of a requirement of this Agreement or applicable
law, sold Securities to a person to whom such U.S. Underwriter failed to send or
give, at or prior to the Closing Date, a copy of the U.S. Prospectus, as then
amended or supplemented if: (i) the Company has previously furnished copies
thereof (sufficiently in advance of the Closing Date to allow for distribution
by the Closing Date) to the U.S. Underwriter and the loss, liability, claim,
damage or expense of such Underwriter resulted from an untrue statement or
omission of a material fact contained in or omitted from the preliminary U.S.
Prospectus which was corrected in the U.S. Prospectus as, if applicable, amended
or supplemented prior to the Closing Date and such U.S. Prospectus was required
by law to be delivered at or prior to the written confirmation of sale to such
person and (ii) such failure to give or send such U.S. Prospectus by the Closing
Date to the party or parties asserting such loss, liability, claim, damage or
expense would have constituted the sole defense to the claim asserted by such
person; and provided further that the aggregate liability of each Management
Selling Shareholder pursuant to this Section 6(a) will be limited to an amount
equal to the aggregate gross proceeds, net of the underwriting discounts,
received by such Management Selling Shareholder from such Management Selling
Shareholder's sale of U.S. Securities to the U.S. Underwriters.
(b) Indemnification of U.S. Underwriters by the Other Selling
Shareholders. Each Other Selling Shareholder, severally and not jointly, agrees
to indemnify and hold harmless each U.S. Underwriter and each person, if any,
who controls any U.S. Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act to the extent and in the manner set forth in
subsections (i), (ii) and (iii) of this Section 6(b) below.
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(i) from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the U.S. Prospectus (or
any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of such Other Selling Shareholder; and
(iii) from and against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by
Xxxxxxx Xxxxx), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that such Other Selling Shareholder will be
liable pursuant to this Section 6(b) only to the extent that any loss,
liability, claim, damage or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission in or from any of such documents in reliance upon and in
conformity with written information furnished to the Company by such
Other Selling Shareholder expressly for use therein; and provided,
further, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information
furnished to the Company by any U.S. Underwriter through the U.S.
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto); and provided
further that the Other Selling Shareholders will not be liable to any
U.S. Underwriter with respect to any U.S. Prospectus to the extent that
the Company or the Other Selling Shareholders shall sustain the burden
of proving that any such loss, liability, claim, damage or expense
resulted from the fact that such U.S. Underwriter, in contravention of a
requirement of this Agreement or applicable law, sold Securities to a
person to whom such U.S. Underwriter
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failed to send or give, at or prior to the Closing Date, a copy of the
U.S. Prospectus, as then amended or supplemented if: (i) the Company has
previously furnished copies thereof (sufficiently in advance of the
Closing Date to allow for distribution by the Closing Date) to the U.S.
Underwriter and the loss, liability, claim, damage or expense of such
Underwriter resulted from an untrue statement or omission of a material
fact contained in or omitted from the preliminary U.S. Prospectus which
was corrected in the U.S. Prospectus as, if applicable, amended or
supplemented prior to the Closing Date and such U.S. Prospectus was
required by law to be delivered at or prior to the written confirmation
of sale to such person and (ii) such failure to give or send such U.S.
Prospectus by the Closing Date to the party or parties asserting such
loss, liability, claim, damage or expense would have constituted the
sole defense to the claim asserted by such person; and provided further
that the aggregate liability of each Other Selling Shareholder pursuant
to this Section 6(b) will be limited to an amount equal to the aggregate
gross proceeds, net of the underwriting discounts, received by such
Other Selling Shareholder from such Other Selling Shareholder's sale of
U.S. Securities to the U.S. Underwriters.
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each
Selling Shareholder and each person, if any, who controls any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary U.S. prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such U.S.
Underwriter through the U.S. Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Sections 6(a) and 6(b)
above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company or, in the event
that the Company does not make such selection, by those Selling Shareholders who
are seeking reimbursement or indemnification and who held a majority of the
Securities sold by each of the Selling Shareholders seeking reimbursement or
indemnification. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party)
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also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel that the indemnified party deems reasonably necessary for the
success of the action) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable, subject to the limitations on liability set
forth in Section 6(a) or Section 6(b) with respect to such Selling Shareholder,
for any settlement of the nature contemplated by Section 6(a)(ii) or 6(b)(ii)
effected without its written consent if: (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request; (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into;
and (iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(f) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the U.S. Underwriters on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Shareholders on the one hand and of the U.S. Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the U.S.
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Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the Selling Shareholders and the total underwriting discount
received by the U.S. Underwriters, in each case as set forth on the cover of the
U.S. Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate public offering price of the U.S. Securities as set
forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the U.S. Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the U.S. Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the U.S. Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7: (i) no U.S.
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the U.S. Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such U.S. Underwriter has otherwise been required to pay by reason
of any such untrue or alleged untrue statement or omission or alleged omission;
(ii) no Selling Shareholder shall be required to contribute any amount in excess
of the amount by which the aggregate gross proceeds, net of the underwriting
discounts, received by such Selling Shareholder from such Selling Shareholder's
sale of U.S. Securities to the U.S. Underwriters exceeds the amount of any
damages which such Selling Shareholder has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission; (iii) any liability of an Other Selling Shareholder under this
contribution agreement shall be only with respect to written information
furnished to the Company by such Other Selling Shareholder expressly for use in
the Registration Statement, the Prospectuses or any amendments or supplements
thereto.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the
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same rights to contribution as such U.S. Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company or such Selling Shareholder,
as the case may be. The U.S. Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial
U.S. Securities set forth opposite their respective names in Schedule A hereto
and not joint.
Notwithstanding the provisions of Section 6, this Section 7 or any other
provision of this Agreement, the U.S. Underwriters agree that they will not take
action against or with respect to any Management Selling Shareholder under this
Agreement until they have first initiated and pursued all rights and remedies
they may have against the Company hereunder, if any, and sought to collect any
damage, expense or loss from the Company for a period of 45 days after any
judgment is entered on the issue of liability or damages, except that the U.S.
Underwriters shall be relieved of their obligation to first take action against
the Company if (i) the Company files a petition for relief under the United
States Bankruptcy Code (the "Bankruptcy Code"), (ii) an order for relief is
entered against the Company in an involuntary case under the Bankruptcy Code,
(iii) the Company makes an assignment for the benefit of its creditors, or (iv)
any court orders or approves the appointment of a receiver or custodian for the
Company or a substantial portion of its assets.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Shareholders submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any U.S. Underwriter or controlling person, or by or on behalf
of the Company or the Selling Shareholders, and shall survive delivery of the
U.S. Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the U.S. Prospectus, any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the U.S.
Representatives, impracticable to market
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the Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq National Market, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal, New York or California authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Initial U.S. Securities or U.S. Option Securities which it or
they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the U.S. Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting U.S.
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the U.S. Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of U.S. Securities to be purchased on such date, each of the
non-defaulting U.S. Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the U.S. Underwriters to purchase and of the
Company to sell the U.S. Option Securities to be purchased and sold on
such Date of Delivery shall terminate without liability on the part of
any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
U.S. Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either (i) the U.S. Representatives or (ii) the
Company and any Selling Shareholder shall have the right to postpone Closing
Time or the
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relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the term
"U.S. Underwriter" includes any person substituted for a U.S. Underwriter under
this Section 10.
SECTION 11. Default by One or More of the Selling Shareholders or the
Company.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of U.S. Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, the
remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of U.S. Securities to be sold by
them hereunder to the total number to be sold by all Selling Shareholders as set
forth in Schedule B hereto, and the Company does not sell or arrange for the
sale of a number of shares of Common Stock determined in accordance with Section
2(c), then the U.S. Underwriters may, at option of the U.S. Representatives, by
notice from the U.S. Representatives to the Company and the non-defaulting
Selling Shareholder(s), either (i) terminate this Agreement without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect, or (ii) elect
to purchase the U.S. Securities which the non-defaulting Selling Shareholder(s)
and the Company have agreed to sell hereunder. No action taken pursuant to this
Section 11 shall relieve any Selling Shareholder so defaulting from liability,
if any, in respect of such default.
(b) In the event of a default by any Selling Shareholder as referred to
in this Section 11, each of the U.S. Representatives, the Company and the
non-defaulting Selling Shareholder(s) shall have the right to postpone Closing
Time or Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectuses or in
any other documents or arrangements.
(c) If the Company shall fail at Closing Time or at the Date of Delivery
to sell the number of U.S. Securities that it is obligated to sell hereunder,
then this Agreement shall terminate without any liability on the part of any
nondefaulting party; provided, however, that the provisions of Sections 1, 4, 6,
7 and 8 shall remain in full force and effect. No action taken pursuant to this
Section shall relieve the Company from liability, if any, in respect of such
default.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives at 4 World Financial
Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of Equity
Capital Markets. Notices to the Company shall be directed to it at 0 Xxxx Xxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000, attention of General Counsel. Notices to
each Selling Shareholder shall be directed to the address indicated for such
Selling Shareholder on Schedule B hereto.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the U.S. Underwriters, the Company and the Selling
Shareholders and their respective
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successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the U.S.
Underwriters, the Company and the Selling Shareholders and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the U.S.
Underwriters, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of U.S. Securities from any U.S. Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the U.S.
Underwriters, the Company and the Selling Shareholders in accordance with its
terms.
Very truly yours,
EXULT, INC.
By:
-------------------------------------
Title:
By:
-------------------------------------
As Attorney-in-Fact acting on behalf
of the Selling Shareholders named in
Schedule B hereto.
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
---------------------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S.
Underwriters named in Schedule A hereto.
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