Exhibit 1.1
XXXX XXXXX XXXXXX CORPORATION
Class A Common Stock
(par value $.01 per share)
Underwriting Agreement
May __, 2002
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston Corporation
UBS Warburg LLC
As representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II (the "Selling Stockholders") of
Xxxx Xxxxx Lauren Corporation, a Delaware corporation (the "Company"), propose,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
11,000,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 1,650,000 additional shares (the "Optional Shares") of Class A Common
Stock, par value $.01 per share (the "Stock"), of the Company. The Firm Shares
and the Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the "Shares." Except as used in
Sections 2, 3, 4, 5, 9 and 11 herein, and except as the context may otherwise
require, references hereinafter to the Shares shall include all the shares of
Stock which may be sold pursuant to this Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-83500) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, but including all documents incorporated by reference in the
prospectus contained therein, to you for each of the other Underwriters,
have been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act
is hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared effective and
(ii) the documents incorporated by reference in the prospectus contained
in the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, or such part of the Rule 462(b)
Registration Statement, if any, which became or hereafter becomes
effective, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Exchange
Act, and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may
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be, will conform in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder 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;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the preparation
of the answers therein to Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other than
the issuance of Stock upon the exercise of outstanding stock options or
the repurchase of Stock by the Company pursuant to the repurchase plan
previously authorized by the Company's Board of Directors, in each case to
the extent set forth or contemplated by the Prospectus) or long-term debt
(other than accretion or scheduled repayment or open market purchases
thereof, in each case to the extent set forth or contemplated by the
Prospectus) of the Company or any of its subsidiaries, or any material
adverse change, or any development related to the Company involving a
prospective material adverse change, in or affecting the business affairs,
financial condition, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated by the Prospectus;
(vi) The Company and its subsidiaries listed on Schedule III hereto
(the "Principal Subsidiaries") have good and marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries or such as do not and would not,
individually or in the aggregate, have a material adverse effect on the
business, prospects, operations, financial condition, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect"); any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are
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not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries or
such as do not and would not, individually or in the aggregate, have a
Material Adverse Effect; and other than the Principal Subsidiaries, there
are no subsidiaries of the Company which would constitute significant
subsidiaries as defined in Rule 1-02(w) of Regulation S-X;
(vii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
each subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, except where the failure to so qualify as a
foreign corporation or be in such good standing would not have a Material
Adverse Effect;
(viii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and issued, are fully paid
and non-assessable and conform in all material respects to the description
of the capital stock contained in the Prospectus; and all of the issued
and outstanding shares of capital stock of each subsidiary of the Company
have been duly authorized and issued, are fully paid and non-assessable
and (except for directors' qualifying shares and except as set forth in
the Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances or claims or as may have been pledged to
the lenders under certain of the Company's credit agreements;
(ix) The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein (i) will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject except any
such conflict, breach, violation or default which has been consented to or
waived by the appropriate counterparty thereto, prior to the execution and
delivery of this Agreement, (ii) will not result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the Company,
and (iii) will not result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties, except for conflicts, breaches, violations or defaults (other
than any relating to the Certificate of Incorporation or By-laws of the
Company) that would not, individually or in the aggregate, have a Material
Adverse Effect or, individually or in the aggregate, impair the Company's
ability to consummate the transactions herein contemplated; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters;
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(x) Neither the Company nor any of its Principal Subsidiaries is in
violation of its respective Certificate of Incorporation or By-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound which default
would have a Material Adverse Effect;
(xi) The Company has all requisite corporate power and authority to
enter into this Agreement; and this Agreement has been duly authorized by
the Company and has been validly executed and delivered by the Company;
(xii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute a
summary of the terms of the Stock are accurate and fair in all material
respects;
(xiii) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xiv) The financial statements included in the Registration Statement
and the Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its subsidiaries on a
consolidated basis as of the dates indicated and the results of
operations, stockholders' equity and cash flows of the Company and its
subsidiaries on a combined basis for the periods indicated. Such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States ("GAAP") applied on a
consistent basis throughout the periods involved. The financial statement
schedules, if any, included in the Registration Statement present fairly
the information required to be stated therein. The selected financial data
included in the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent in all material respects with
that of the audited financial statements included in the Registration
Statement;
(xv) There are no contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not so described, or
filed or incorporated by reference therein;
(xvi) Except as disclosed in the Prospectus, the Company and its
subsidiaries own or possess all foreign and domestic governmental
licenses, permits, certificates, consents, orders, approvals and other
authorizations (collectively, "Governmental Licenses") necessary to own or
lease, as the case may be, and to operate their properties and to carry on
their business as presently conducted, except to the extent that the
failure to own or possess such Governmental Licenses would not,
individually or in the
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aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except to the extent that
the failure to have such Governmental Licenses would not, individually or
in the aggregate, have a Material Adverse Effect; and neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to revocation or modification of any such Governmental Licenses,
except to the extent that individually or in the aggregate, if subject to
an unfavorable decision, ruling or finding, such proceedings would not
have a Material Adverse Effect;
(xvii) Except as disclosed in this Prospectus, each of the Company and
its subsidiaries owns or has rights to adequate foreign and domestic
trademarks, service marks, trade names, inventions, copyrights and
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
(collectively, the "Intellectual Property") necessary to carry on their
respective businesses as of the date hereof, and neither the Company nor
any of its subsidiaries is aware that it would interfere with, infringe
upon or otherwise come into conflict with any Intellectual Property rights
of third parties as a result of the operation of the business of the
Company or any subsidiary as of the date hereof that, individually or in
the aggregate, if subject to an unfavorable decision, ruling or finding
would have a Material Adverse Effect;
(xviii) Except as disclosed in the Prospectus, there are no holders of
securities (debt or equity) of the Company or any of its subsidiaries, or
holders of rights (including, without limitation, preemptive rights),
warrants or options to obtain securities of the Company or any of its
subsidiaries, who have the right to request the Company or any of its
subsidiaries to register securities held by them under the Act;
(xix) Except as disclosed in the Prospectus, there are no labor
disputes between the Company or any of its subsidiaries, on the one hand,
and the employees of the Company or any of its subsidiaries, on the other
hand that could reasonably be expected to have a material adverse effect
on the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
(xx) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
and
(xxi) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement
and for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; such Selling Stockholder has
full right, power and authority to enter into this Agreement, and to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder; and such Selling Stockholder has duly executed and
delivered this Agreement;
(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated (i) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any
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statute, indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is subject, except any such
conflict, breach, violation or default which has been consented to or
waived, by the appropriate counterparty thereto, prior to the execution and
delivery hereof, (ii) will not result in any violation of the provisions of
the Certificate of Incorporation or By-laws of such Selling Stockholder if
such Selling Stockholder is a corporation or the Partnership Agreement of
such Selling Stockholder if such Selling Stockholder is a partnership and
(iii) will not result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over such Selling Stockholder or the property of such Selling Stockholder;
(iii) Such Selling Stockholder has good and valid title to shares of
the Company's Class C Common Stock, par value $.01 per share, that such
Selling Stockholder intends to convert into the Shares to be sold by such
Selling Stockholder hereunder, and immediately prior to each Time of
Delivery (as defined in Section 4 hereof), such Selling Stockholder will
have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances or
claims; and, upon delivery of such Shares hereunder and payment therefor
pursuant hereto, good and valid title to such Shares, free and clear of
all liens, encumbrances or claims, will pass to the several Underwriters;
(iv) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, such
Selling Stockholder will not directly or indirectly offer, sell, contract
to sell or otherwise distribute or dispose of, except as provided
hereunder, Stock or any securities of the Company that are substantially
similar to the Stock, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any substantially similar securities, without the prior
written consent of Xxxxxxx, Sachs & Co., as representative of the
Underwriters;
(v) Such Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(vi) (A) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and (B) the Preliminary Prospectus and the Prospectus do
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that,
in each case, the representations and warranties set forth in this
paragraph 1(b)(vi) apply only to statements or omissions in the
Registration Statement, Preliminary Prospectus or the Prospectus based
upon, and in conformity with, information relating to such Selling
Stockholder furnished to the Company in writing by such Selling
Stockholder expressly for use therein;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
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the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof); and
(viii) The Shares represented by the certificates held by each Selling
Stockholder are subject to the interests of the Underwriters hereunder;
the obligations of the Selling Stockholder hereunder shall not be
terminated by operation of law, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by
the occurrence of any other event; if any such partnership or corporation
should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of the Selling Stockholder in
accordance with the terms and conditions of this Agreement.
2. Subject to the terms and conditions herein set forth, (a) each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at a purchase price per share of
$ , the number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Firm Shares
to be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from such
Selling Stockholders, at the purchase price per share set forth in clause (a) of
this Section 2, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by a
fraction the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 1,650,000 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares may be exercised from time to time only by
written notice from you to such Selling Stockholders (with a copy to the
Company), given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, if other than the First Time of Delivery,
unless you and such Selling Stockholders otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
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4. (a) The Shares to be purchased by each Underwriter hereunder in such
authorized denominations and registered in such names as Xxxxxxx, Xxxxx & Co.
may request upon at least forty-eight hours' prior notice to the Selling
Stockholders shall be delivered by or on behalf of the Selling Stockholders to
Xxxxxxx, Sachs & Co. through the facilities of the Depository Trust Company
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer or certified or
official bank check or checks, payable to the order of such Selling Stockholder,
in immediately available (same-day) funds. The time and date of such delivery
and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on May __, 2002 or such other time and date as Xxxxxxx, Xxxxx & Co. and
the Selling Stockholders may agree upon in writing, and with respect to the
Optional Shares, 9:30 a.m., New York City time, on the date specified by
Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as Xxxxxxx, Sachs & Co. and the Selling Stockholders may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery," such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery," and each such time and date for delivery is herein called a "Time of
Delivery."
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(k) hereof, will be delivered at the offices of Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Closing Location"). A meeting will be held at the Closing Location at 2
p.m., New York City time, on the New York Business Day next preceding each Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the last date on which the Underwriters may be
required to deliver a Prospectus which shall be disapproved by you
promptly after reasonable notice thereof, except for any such amendment or
supplement that in the reasonable written opinion of counsel to the
Company is required by applicable law; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of
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the Shares; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction or to take
any other action which would subject it to taxation, other than as to
matters and transactions relating to the offer and sale of the Shares in
each jurisdiction in which the Shares have been qualified as provided
above;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Shares and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to notify
you and upon your request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales of
any of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
directly or indirectly offer, sell, contract to sell or
10
otherwise dispose of, except as provided hereunder, any Stock or any
securities of the Company that are substantially similar to the Stock,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to the Company's 1997
Long- Term Stock Incentive Plan or other employee or director stock option
plans existing on the date of this Agreement), or to file any registration
statement with the Commission under the Act relating to any such
securities, without the prior written consent of Xxxxxxx, Sachs & Co., as
representative of the Underwriters; provided, however, that the foregoing
agreement shall not limit the Company's ability to (i) issue shares of
Stock, warrants or convertible securities as consideration for acquisitions
of assets or stock of a third party, provided that the recipients of all
such shares of Stock, warrants or convertible securities agree with the
Company (which agreement may not be amended without the prior written
consent of Xxxxxxx, Xxxxx & Co.) to be subject to the foregoing lock-up
agreement in this Subsection 5(e) with respect to such shares of Stock,
warrants or convertible securities; or (ii) issue shares of Stock upon the
exercise of any warrants or convertible securities issued pursuant to the
preceding clause provided that such shares of Stock will be subject to the
foregoing lock-up to the same extent, if any, as the warrants or
convertible securities pursuant to which such shares of Stock were
issued;provided that the aggregate amount of shares of Stock, warrants and
convertible securities (on an as converted basis) that may be issued under
these clauses (i) and (ii) may not exceed 5,000,000 shares;
(f) If not otherwise available on the Commission's Electronic Data
Gathering, Analysis and Retrieval System or similar system, during a period
of five years from the effective date of the Registration Statement, to
furnish to its stockholders as soon as practicable after the end of each
fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Company and its subsidiaries for such quarter
in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information that is available
without undue expense concerning the business and financial condition of
the Company as you may from time to time reasonably request in writing
(such financial statements to be prepared on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
provided that the Company shall not be required to deliver any information
that would cause the Company to make a filing under Regulation FD as
promulgated under the Exchange Act;
(h) To use its best efforts to maintain the listing of the Shares on
the New York Stock Exchange (the "Exchange"); and
(i) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration
11
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company and each of the Selling Stockholders covenant and agree
with one another and with the several Underwriters that (a) the Company will pay
or cause to be paid the following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing this Agreement, the Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky survey; (iv) all
fees and expenses in connection with listing the Shares on the Exchange; (v) the
filing fees incident to, and the reasonable fees and disbursements of counsel
for the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; (viii) all reasonable fees and
disbursements of one counsel for the Selling Stockholders; and (ix) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section; and (b) each
Selling Stockholder will pay or cause to be paid all costs and expenses incident
to the performance of such Selling Stockholder's obligations hereunder which are
not otherwise specifically provided for in this Section 6, including all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
such Selling Stockholder to the Underwriters hereunder. In connection with
clause (b) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay New
York State stock transfer tax, and each Selling Stockholder agrees to reimburse
Xxxxxxx, Xxxxx & Co. for associated carrying costs if such tax payment is not
rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood that the Company shall bear, and the Selling
Stockholder shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees and disbursements of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective by
10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop
order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no
12
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated
such Time of Delivery, with respect to the matters covered in paragraphs
(i), (ii), (vi), (ix) and (xii) of subsection (c) below as well as such
other related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(a) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and are validly
issued, fully paid and non-assessable; and the Shares conform in all
material respects as to legal matters to the description of the Stock
contained in the Prospectus;
(iii) Based solely on such counsel's review of certificates from
public officials, the Company has been duly qualified as a foreign
corporation for the transaction of business in, and is in good
standing under the laws of, the states of California, Georgia,
Illinois, Kentucky, New Jersey, New York, North Carolina,
Pennsylvania, Texas and Washington;
(iv) Based solely on such counsel's review of certificates from
public officials, each of the Principal Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the
issued and outstanding shares (or other equity interest) of capital
stock of each such Principal Subsidiary have been duly authorized and
validly issued, and are fully paid and non-assessable, and (except for
directors' qualifying shares) are owned of record directly or
indirectly by the Company, and, to such counsel's knowledge are owned
free and clear of all liens, encumbrances or claims other than those
as may have been created by pledges to lenders under certain of the
Company's credit agreements (such counsel being entitled to rely in
respect of the opinion in this clause upon an opinion of local counsel
with respect to Aqui Polo C.V. and in respect of matters of fact upon
a certificate of an officer of the Company or its subsidiaries);
(v) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate reasonably be
expected to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to
13
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The compliance by the Company with all of the provisions of
this Agreement and the performance by the Company of its obligation
thereunder (i) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument which is either filed as an
Exhibit to the Registration Statement or filed as an Exhibit to any
document incorporated by reference in the Registration Statement, (ii)
will not result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any Applicable Law, or
(iii) to the knowledge of such counsel, based solely on an officer's
certificate from an officer of the Company and without independent
inquiry, any order applicable to the Company or any of its Principal
Subsidiaries. As used herein, "Applicable Law" shall mean the federal
laws of the United States, the laws of the State of New York and the
General Corporation Law of the State of Delaware, in each case which,
in such counsel's experience, are normally applicable to transactions
of the type contemplated by this Agreement;
(viii) Based on such counsel's review of Applicable Law, but
without any investigation concerning any other laws, rules or
regulations, no consent, approval, authorization, order of, or
registration or qualification with any United States federal, New York
or Delaware court or governmental agency or body is required for the
performance by the Company of its obligations under this Agreement,
except the registration under the Act of the Shares (which has been
obtained) or under state securities or Blue Sky laws of the Shares;
(ix) The statements set forth in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute
a summary of the terms of the Stock are accurate and fair in all
material respects; the statements set forth in the Prospectus under
the caption "United States Tax Consequences to Non-United States
Holders," to the extent that they constitute summaries of United
States federal law or regulations or legal conclusions, have been
reviewed by such counsel and fairly summarize the matters described
under that caption in all material respects;
(x) The Company is not required to register as an "investment
company" under the Investment Company Act and the rules and
regulations promulgated thereunder;
(xi) Each document incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior
to the Time of Delivery (other than the financial statements,
financial statements schedules and other financial data included in or
omitted therefrom and related schedules therein, as to which such
counsel need express no opinion), when it became effective or was
filed with the Commission, as the case may be, appears on its face to
be appropriately responsive in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder; assuming that the statements made in such
documents are complete and correct.
14
(xii) Each of the Registration Statement and the Prospectus as of
their respective effective or issue dates and any further amendments
and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements, financial statement
schedules and other financial data included in or omitted therefrom
and related schedules therein, as to which such counsel need express
no belief) appears on its face to be appropriately responsive in all
material respects to the requirements of the Act and the rules and
regulations thereunder; although they do not assume any responsibility
for the accuracy or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (ix) of this Section 7(c); in addition,
such counsel shall state that, in connection with the preparation of
the Registration Statement and Prospectus, it has participated in
conferences with directors, officers and other representatives of the
Company, representatives of various of the Selling Stockholders,
representatives of the independent auditors for the Company,
representatives of the Underwriters and representatives of counsel for
the Underwriters, at which conferences the contents of the
Registration Statement and the Prospectus and related matters were
discussed and, on the basis of such participation, (relying as to
various questions of fact relevant to the opinion expressed therein
upon the representations and statements of officers and other
representatives of the Company) but without independent verification
of the accuracy, completeness, or fairness of the statements contained
in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, no facts have come to the attention of such
counsel to lead such counsel to believe that (a) the Registration
Statement or any amendment thereto made by the Company prior to the
Time of Delivery (except for the financial statements, financial
statement schedules and other financial data included or incorporated
by reference in or omitted therefrom, as to which such counsel need
express no belief), at the time the Registration Statement became
effective and on the date of such written opinion, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (b) the Prospectus or any amendment or
supplement thereto made by the Company prior to the Time of Delivery
(except for the financial statements, financial statement schedules
and other financial data included or incorporated by reference in or
omitted therefrom, as to which such counsel need express no belief),
at the time the Prospectus was issued and on the date of such written
opinion, contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents
of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed or described as required.
(d) Xxxxxx, Xxxxxxxxx & Xxxxxxxxx ("AR&E"), counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(b) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that except as disclosed
in the Prospectus, the Company and its subsidiaries together own or
15
have rights to use the trademarks Xxxx, Xxxxx Lauren and Chaps/Xxxxx Xxxxxx
(the "Principal Trademarks") in their businesses as described in the
Prospectus, without any conflict known to such counsel with any
intellectual property rights of third parties that would, individually or
in the aggregate, have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries and, to such counsel's
knowledge, there is no infringement by others of the Principal Trademarks
that would, individually or in the aggregate, have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, except that no opinion need be given as to any jurisdiction
outside the United States;
(e) The counsel for each of the Selling Stockholders shall have
furnished to you their written opinion with respect to each of the Selling
Stockholders (drafts of such opinions are attached as Annex II(c) hereto),
dated the Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) Based on such counsel's review of Applicable Law, but without
any investigation concerning any other laws, rules or regulations,
this Agreement has been duly authorized, executed and delivered by or
on behalf of such Selling Stockholder; and the sale of the Shares to
be sold by such Selling Stockholder hereunder and compliance by such
Selling Stockholder with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument known to such counsel to which such Selling Stockholder is
a party or by which such Selling Stockholder is bound or to which any
of the property or assets of such Selling Stockholder is subject based
on such counsel's review of Applicable Law, but without any
investigation concerning any other laws, rules or regulations; nor
will such action result in any violation of (i) the provisions of the
Partnership Agreement of such Selling Stockholder, (ii) any Applicable
Law, or (iii) to the knowledge of such counsel, any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder;
(ii) Based on such counsel's review of Applicable Law, but
without any investigation concerning any other laws, rules or
regulations, no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the
Shares to be sold by such Selling Stockholder hereunder, except such
as have been obtained under the Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of such shares by the Underwriters; and
(iii) Good and valid title to such Shares, free and clear of all
liens, encumbrances or claims, has been transferred to each of the
several Underwriters who have purchased such Shares in good faith and
without notice of any such lien, encumbrance or claim or any other
adverse claim within the meaning of the New York Uniform Commercial
Code.
16
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of
Delivery, Deloitte & Touche LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I hereto
(the executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex 1(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex 1(b) hereto);
(g)(i) Neither the Company nor any of its Principal Subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective
dates as of which information is given in the Prospectus there shall not
have been any change in the capital stock (other than the issuance of
Stock upon the exercise of outstanding stock options or the repurchases of
the Stock by the Company pursuant to the repurchase plan previously
authorized by the Company's Board of Directors, in each case to the extent
set forth or contemplated by the Prospectus) and or long-term debt (other
than accretion or schedule repayments thereof, in each case to the extent
set forth or contemplated by the Prospectus) of the Company or any of its
subsidiaries, or any change, or any development related to the Company
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the
United States; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or
any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Shares on the terms and in the manner contemplated in the Prospectus;
(i) The Shares at such Time of Delivery shall have been duly listed on
the Exchange;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the directors and executive
officers of the Company and certain members or entites associated with the
Lauren family and related trusts (the "Non-Selling Stockholders"),
substantially to the effect set forth in Subsection 1(b)(iv) hereof in
form and substance satisfactory to you;
17
(k) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and of the Selling Stockholders, respectively,
reasonably satisfactory to you as to the accuracy of the representations
and warranties of the Company and the Selling Stockholders, respectively,
herein at and as of such Time of Delivery, as to the performance by each
of the Company and the Selling Stockholders of all of their respective
obligations hereunder to be performed at or prior to such Time of
Delivery, and as to such other matters as you may reasonably request, and
the Company shall have furnished or caused to be furnished certificates as
to the matters set forth in subsections (a) and (g) of this Section;
(l) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(m) Each of the Selling Stockholders shall have delivered to the
Underwriters certificates required by Treasury Regulation section
1.1445-2(b)(2) in order to avoid withholding of tax under Section 1445 of
the Internal Revenue Code of 1986, as amended.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
in the Registration Statement or any amendment or supplement thereto not
misleading or to make the statements in any Preliminary Prospectus or the
Prospectus not misleading in light of the circumstances under which they were
made, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Xxxxxxx,
Xxxxx & Co. expressly for use therein.
(b) Each of the Selling Stockholders will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements in the Registration Statement or any amendment or supplement
thereto not misleading or to make the statements in any Preliminary Prospectus
or the Prospectus not misleading in light of the circumstances under which they
were made, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder expressly for
use therein; and will reimburse
18
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that such Selling
Stockholder shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx, Sachs &
Co. expressly for use therein; provided, further, that the liability of such
Selling Stockholder pursuant to this subsection (b) shall not exceed the product
of the number of Shares sold by such Selling Stockholder (including any Optional
Shares) and the initial public offering price as set forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection, except to the extent
that such indemnifying party is prejudiced by the failure to give such notice.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with a single counsel (in addition to
any local counsel) satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability
19
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party. Notwithstanding anything to the contrary contained
herein, an indemnifying party will not be liable for the settlement of any claim
or action effected without its prior written consent, which consent shall not be
unreasonably withheld.
(e) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
20
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as someone
who will become a director of the Company and who becomes such a director) and
to each person, if any, who controls the Company or any Selling Stockholder
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Selling Stockholders shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
and the Company that you have so arranged for the purchase of such Shares, or
the Selling Stockholders notify you that they have so arranged for the purchase
of such Shares, you or the Selling Stockholders shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholders shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company
and the Selling Stockholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in
21
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any of the Selling Stockholders, or any officer or director or controlling
person of the Company, or any controlling person of any Selling Stockholder, and
shall survive delivery of and payment for the Shares.
Anything herein to the contrary notwithstanding, the indemnity agreement
of the Company in subsection (a) of Section 8 hereof, the representations and
warranties in subsections (a)(ii) and (a)(iv) of Section 1 hereof and any
representation or warranty as to the accuracy of the Registration Statement or
the Prospectus contained in any certificate furnished by the Company pursuant to
Section 7 hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company of expenses incurred or paid in
the successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of a controlling person
or partner of an Underwriter who is a director, officer or controlling person of
the Company when the Registration Statement has become effective, except in each
case to the extent that an interest of such character shall have been determined
by a court of appropriate jurisdiction as not against public policy as expressed
in the Act. Unless in the opinion of counsel for the Company the matter has been
settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question of whether such interest is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Sachs & Co. on behalf of you as the
representatives; and in all dealings with any of the Selling Stockholders
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling Stockholders
made or given by either of the Attorneys-in-Fact for such Selling Stockholders.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, by
messenger or facsimile transmission to you as the representatives in care of
Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Registration Department; if to any Selling Stockholders shall be delivered or
sent by mail, by messenger or facsimile transmission to counsel for such Selling
Stockholders at its address set forth in Schedule II hereto; and if to the
Company shall be delivered or sent by mail, by messenger or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by mail,
by messenger or facsimile transmission to such Underwriter
22
at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the Selling Stockholders by you on request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholders or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
17. The Company and the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, without the Underwriters imposing
any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholders for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
23
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholders pursuant to a validly existing and
binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
XXXX XXXXX LAUREN CORPORATION
By:
-----------------------------------
Name:
Title:
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.L.C., its general
partner
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof: STONE STREET FUND 1994, X.X.
Xxxxxxx, Xxxxx & Co. By:Stone Street 1994, L.L.C.,
Credit Suisse First Boston Corporation General Partner
UBS Warburg LLC
By:
-----------------------------------
Name:
By: Title:
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
BRIDGE STREET FUND 1994, L.P.
On behalf of each of the Underwriters By:Stone Street 1994, L.L.C.,
Managing General Partner
By:
-----------------------------------
Name:
Title:
24
SCHEDULE I
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
Xxxxxxx, Xxxxx & Co........................
Credit Suisse First Boston Corporation.....
UBS Warburg LLC............................
---------------- --------------
Total............ ....................
================ ==============
25
SCHEDULE II
Number of
Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
The Selling Stockholder(s):
GS Capital Partners, L.P. (a)............
Stone Street Fund 1994, L.P. (a).........
Xxxxxx Xxxxxx Xxxx 0000, X.X. (a)........
Total.........................
(a) This Selling Stockholder is represented by Xxxx X. Xxxxx of Xxxxxxx, Xxxxx
& Co., whose address is 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
26
SCHEDULE III
PRINCIPAL SUBSIDIARIES
PRL International, Inc.
PRL USA, Inc.
Fashions Outlet of America, Inc.
Aqui Polo C.V.
27
