XXXXXXXXX XXXXXX INC.
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
October , 1999
Xxxxxxx, Sachs & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc.,
Bear, Xxxxxxx & Co. Inc.,
CIBC World Markets Corp.,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
Xxxxxxxx & Co. Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Xxxxxxx, Sachs & Co.,
As Independent Underwriter,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Xxxxxxxxx Xxxxxx Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 2,612,330 shares of Common Stock, par value $0.01 per share
("Stock"), of the Company, and the stockholders of the Company named in
Schedule II hereto (the "Selling Stockholders") propose, subject to the terms
and conditions stated herein, to sell to the Underwriters an aggregate of
3,637,670 shares and, at the election of the Underwriters, up to 937,500
additional shares of Stock. The aggregate of 6,250,000 shares to be sold by
the Company and the Selling Stockholders is herein called the "Firm Shares"
and the aggregate of 937,500 additional shares to be sold by the Selling
Stockholders is herein called the "Optional Shares". The Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Stockholders of up to a total of 1,150,000 shares of Stock (the
"International Shares"), including the overallotment option thereunder, through
arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom Xxxxxxx Sachs International and Xxxxxxx
Xxxxx International, Xxxxxx Xxxxxxx & Co. International Limited, Salomon
Brothers International Limited,
Bear, Xxxxxxx International Limited, CIBC World Markets International Limited,
Xxxxxxxxx, Lufkin & Xxxxxxxx International and J. Xxxxx Xxxxxxxx & Co. Limited
are acting as lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages. Except as used in Sections 2, 3, 4, 11 and 13 herein, and
except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
Reference in this Agreement to "subsidiaries" of the Company shall
be deemed to include entities that will become subsidiaries of the Company
upon consummation of the transactions contemplated in the Plan of Merger and
Exchange Agreement, dated as of August 2, 1999 (the "Exchange Agreement"),
among the Company, Xxxxxxxxx Xxxxxx, LLC ("NB LLC"), Xxxxxxxxx Xxxxxx
Management Inc. ("NBMI"), Xxxxxxxxx Xxxxxx Sub Inc., and the principals and
family affiliates named on Schedules I and II thereof (collectively, the
"Management Stockholders") and, prior to consummation of such transactions,
NB LLC and NBMI and their respective subsidiaries.
The Company and the Underwriters, in accordance with the requirements
of Rule 2720 ("Rule 2720") of the National Association of Securities Dealers,
Inc. (the "NASD") and subject to the terms and conditions stated herein, also
hereby confirm the engagement of the services of Xxxxxxx, Sachs & Co. (the
"Independent Underwriter") as a "qualified independent underwriter" within the
meaning of Section 2(l) of Rule 2720 in connection with the offering and sale of
the Shares.
1. (a) Each of the Company, NB LLC and NBMI represents
and warrants to, and agrees with, each of the Underwriters and the Independent
Underwriter that:
(i) A registration statement on Form S-1 (File No. 333-84525)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement has heretofore been filed
with the Commission; and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 6(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the Initial
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Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement
became effective, or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of an Underwriter through Xxxxxxx, Xxxxx & Co. or by
the Independent Underwriter expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein
to Items 7 and 11(m) of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of an
Underwriter through Xxxxxxx, Sachs & Co. or by the Independent
Underwriter expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Items 7
and 11(m) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
(v) The Company and each of its 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 and material to
the business of the Company and its subsidiaries taken as a whole, 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 materially interfere with
the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries and material to the business
of the Company and its subsidiaries taken as a whole are held by them
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not materially
3
interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries;
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) 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, except for any failures
to be so qualified or in good standing that, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect on the general affairs, management, financial condition,
stockholders' equity, results of operations or prospects of the Company
and its subsidiaries taken as a whole (a "Material Adverse Effect");
(vii) NB LLC has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware, with power and authority to own its properties and conduct
its business as described in the Prospectus and has been duly qualified
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, except for
any failures to be so qualified or in good standing that, individually
or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect; and each other 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, with
power and authority (corporate and other) 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, except for any failure to be so qualified or in
good standing that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect;
(viii) Upon consummation of the transactions contemplated in
the Exchange Agreement, the Company will have an authorized
capitalization as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company will have been duly and validly
authorized and issued, fully paid and non-assessable and conform to the
description of the Stock contained in the Prospectus; all of the
membership interests of NB LLC have been validly issued in accordance
with applicable law and the limited liability company agreement of such
subsidiary, and upon consummation of the transactions contemplated in
the Exchange Agreement, will be owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims; all of the issued
shares of capital stock of each other subsidiary of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable, and upon consummation of the transactions contemplated
in the Exchange Agreement, will be owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
upon consummation of the transactions contemplated in the Exchange
Agreement, there will be no outstanding subscriptions, rights,
warrants, options, calls, commitments or liens related to or entitling
any person to purchase or otherwise to acquire any shares of the
capital stock of, or membership interest or other ownership interest
in, the Company or any of its subsidiaries;
(ix) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder and under the International Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein and therein, will
be duly and validly issued and fully paid and non-assessable and will
conform to the description of the Stock contained in the Prospectus;
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(x) Each of the Company, NB LLC and NBMI has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the International Underwriting
Agreement and to consummate the transactions contemplated hereby and
thereby, including without limitation, in the case of the Company, the
corporate power and authority to issue, sell and deliver the Shares, as
provided herein and therein;
(xi) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by each of
the Company, NB LLC and NBMI;
(xii) The issue and sale of the Shares to be sold by the
Company hereunder and under the International Underwriting Agreement
and the compliance by each of the Company, NB LLC and NBMI with all of
the provisions of this Agreement, the International Underwriting
Agreement, the Exchange Agreement and the Stockholders Agreement, dated
as of August 2, 1999, among the Company and the Management Stockholders
named therein (the "Stockholders Agreement"), as applicable, and the
consummation of the transactions herein and therein contemplated will
not (a) 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, NB LLC or NBMI or any of their
respective subsidiaries is a party or by which the Company, NB LLC and
NBMI or any of their respective subsidiaries is bound or to which any
of the property or assets of the Company, NB LLC or NBMI or any of
their respective subsidiaries is subject, (b) result in any violation
of the provisions of the Certificate of Incorporation or By-laws or
other organizational documents of the Company, NB LLC or NBMI or (c)
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, NB LLC or NBMI or any of their respective subsidiaries or
any of their properties, except, in the case of clauses (a) and (c)
above, any conflicts, breaches, defaults or violations that,
individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect or impair the ability of the Company and
its subsidiaries to perform their respective obligations under, or
consummate the transactions contemplated by, this Agreement, the
International Underwriting Agreement, the Exchange Agreement or the
Stockholders Agreement, as applicable; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company, NB LLC or NBMI of the
transactions contemplated by this Agreement, the International
Underwriting Agreement, the Exchange Agreement or the Stockholders
Agreement except the registration under the Act of the Shares and
registration under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), of the Stock and such consents, approvals,
authorizations, registrations or qualifications as may be required
under foreign or state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters and the
International Underwriters;
(xiii) Each of the Company and its subsidiaries is in
compliance with all laws, regulations, permits, judgments, decrees,
ordinances and orders applicable to it or its businesses, including
without limitation Rule 15c3-1 under the Exchange Act, except for any
failures to be so in compliance that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect;
(xiv) (A) Each of the Company and its subsidiaries has all
certificates, consents, exemptions, orders, permits, licenses,
authorizations or other approvals (each, an "Authorization") of and
from, and has made all declarations and filings with, all Federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, necessary or required
to engage in the business currently conducted by it in the manner
described in the Prospectus, except for any failures to have any such
Authorizations or have made any such declarations or filings that,
individually or in the aggregate, would not reasonably be expected to
have
5
a Material Adverse Effect; (B) all Authorizations required pursuant
to clause (A) of this paragraph are valid and in full force and effect,
except for any failures to be so valid and in full force and effect
that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; and (C) each of the
Company and its subsidiaries is in compliance with the terms and
conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto except for any failures to be in
such compliance that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect;
(xv) The Company is not required to be registered, licensed or
qualified as an investment adviser or a broker-dealer or as a commodity
trading advisor, a commodity pool operator or a future commission
merchant or any or all of the foregoing, as applicable; each of the
Company's subsidiaries that is required to be registered, licensed or
qualified as an investment adviser or a broker-dealer or as a commodity
trading advisor, a commodity pool operator or a futures commission
merchant or any or all of the foregoing, as applicable, is so
registered, licensed or qualified in each jurisdiction where the
conduct of its business requires such registration, license or
qualification (and such registration, license or qualification is in
full force and effect), and is in compliance with all applicable laws
requiring any such registration, licensing or qualification, except for
any failures to be so registered, licensed or qualified or to be in
such compliance that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries is prohibited from carrying on
its business as described in the Prospectus by any applicable laws,
rules, regulations, orders, or similar requirements except for any such
prohibitions that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect;
(xvi) The Company is not a party to any investment advisory
agreement or distribution agreement; each of the investment advisory
agreements and distribution agreements to which any of the Company's
subsidiaries is a party is a valid and legally binding obligation of
such subsidiary which is a party thereto and complies with the
applicable provisions of the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), except for any failures to be so in
compliance that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect; and none of the
Company's subsidiaries is in breach or violation of or in default under
any such agreement which breach, violation, default or invalidity,
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect;
(xvii) The Company does not sponsor any funds; each fund
sponsored by any of the Company's subsidiaries (a "Fund" or the
"Funds") and which is required to be registered with the Commission as
an investment company under the Investment Company Act of 1940, as
amended (the "Investment Company Act") is duly registered with the
Commission as an investment company under the Investment Company Act,
except for any failures to be so registered that, individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect;
(xviii) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or other
organizational documents, as applicable, or, except for such defaults
that, individually or in the aggregate, would not reasonably expected
to have a Material Adverse Effect, in default in the performance or
observance of any material 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;
(xix) Consummation of the transactions contemplated by this
Agreement, the International Underwriting Agreement or the Exchange
Agreement will not constitute an "assignment" within the
6
meaning of such term under the Advisers Act (and the rules and
regulations thereunder) or the Investment Company Act (and the rules
and regulations thereunder); nor will consummation of such transactions
adversely affect in any material respects the ability of the Company
and its subsidiaries to conduct its business in compliance with
applicable law as described in the Prospectus, including, but not
limited to, providing investment advisory services to clients and
mutual funds, whether or not such funds are registered under the
Investment Company Act;
(xx) 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, under the caption
"United States Federal Tax Considerations for Non-U.S. Holders" in the
Prospectus relating to the International Shares, and under the captions
"Management","Certain Relationships and Related Transactions" and
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are, in all material
respects, accurate and complete summaries or descriptions thereof;
(xxi) 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 that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect or adversely affect the issuance and sale of the Shares or
affect the validity of this Agreement, the International Underwriting
Agreement, the Exchange Agreement or the Stockholders Agreement; and,
to the best of the Company's knowledge, no such proceedings are
threatened by governmental authorities or others;
(xxii) Each of (A) the Exchange Agreement and (B) the
Stockholders Agreement has been duly authorized, executed and delivered
by, and constitutes a valid and legally binding obligation of, the
Company (in the case of (A) and (B)) and each of NB LLC and NBMI (in
the case of (A)), enforceable against such party 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 equity
principles;
(xxiii) The combined historical financial statements, together
with the accompanying notes, set forth in the Prospectus fairly
present, in all material respects, the combined financial position of
the Company and its subsidiaries at the respective dates indicated and
the combined results of their operations and their combined cash flows
for the respective periods indicated, in accordance with United States
generally accepted accounting principles consistently applied
throughout such periods; the pro forma financial statements contained
in the Prospectus have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified
therein, and fairly present, in all material respects, the historical
and proposed transactions described under "Pro Forma Combined Financial
Statements (Unaudited)" in the Prospectus, on the basis of assumptions
that, in the opinion of the Company, were reasonable at the time such
pro forma financial statements were prepared; and all other historical
and pro forma financial information and other data included in the
Prospectus are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the
books and records of the Company and its subsidiaries;
(xxiv) Each of the Company and its subsidiaries owns or
possesses or has the right to use the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, the "Intellectual Property") presently employed by it in
connection with, and material to, individually or in the aggregate, the
operation of the businesses now operated by it, and none of the Company
or any of its subsidiaries has received
7
any notice of infringement of or conflict with asserted rights of
others with respect to the foregoing; and, to the best of the Company's
knowledge, the use of such Intellectual Property in connection with the
business and operations of the Company and each of its subsidiaries
does not infringe on the rights of any person except for any
infringements that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect;
(xxv) All material tax returns required to be filed by the
Company or any of its subsidiaries in any jurisdiction have been timely
and duly filed, other than those filings being contested in good faith;
there are no tax returns of the Company or any of its subsidiaries that
are currently being audited by state, local or federal taxing
authorities or agencies (and with respect to which the Company or any
of its subsidiaries has received notice); and all taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which adequate
reserves have been provided or those currently payable without penalty
or interest, and other than those that are not material;
(xxvi) Each of the Company and its subsidiaries maintains
insurance covering its properties, operations, personnel and businesses
which insures against such losses and risks as are adequate in
accordance with its reasonable business judgment to protect the Company
and each of its subsidiaries and their businesses; and all such
insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force at each Time of Delivery (as defined
in Section 5 hereof);
(xxvii) There are no holders of securities of the Company or
any of its subsidiaries who, by reason of the execution of this
Agreement, the International Underwriting Agreement, the Exchange
Agreement or the Stockholders Agreement by the Company or any of its
subsidiaries or any Selling Stockholder, as the case may be, or the
consummation of the transactions contemplated hereby or thereby, have
or will have the right to request or demand the Company or any of its
subsidiaries or any Selling Stockholder to register under the Act any
securities held by them;
(xxviii) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or the rules and regulations of the
Commission thereunder which have not been described in the Prospectus
or filed as exhibits to the Registration Statement;
(xxix) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem; as a result of
such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse
Effect; the "Year 2000 Problem" as used herein means any significant
risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000;
(xxx) No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Company or any of its subsidiaries, is imminent;
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(xxxi) Neither the Company nor any of its subsidiaries is and,
after giving effect to the offering and sale of the Shares, will be an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act;
(xxxii) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes; and
(xxxiii) Xxxxxx Xxxxxxxx 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 and not jointly,
represents and warrants to, and agrees with, each of the Underwriters and the
Company and, with respect to clause (b)(v), agrees with each of the
Underwriters, that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of
this Agreement, the International Underwriting Agreement, the Exchange
Agreement, the Stockholders Agreement and the Power of Attorney and for
the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement have been obtained, except for the registration under the Act
of the Shares, the registration under the Exchange Act of the Stock,
and such consents, approvals, authorizations, registrations or
qualifications as may be required under foreign or state securities or
Blue Sky laws; and such Selling Stockholder has full right, power and
authority to enter into this Agreement, the International Underwriting
Agreement, the Exchange Agreement, the Stockholder Agreement and the
Power of Attorney and upon the consummation of the transactions
contemplated in the Exchange Agreement, will have full right, power and
authority to sell, assign, transfer and deliver the Shares to be sold
by such Selling Stockholder hereunder and under the International
Underwriting Agreement;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement and the compliance by such Selling Stockholder with all of
the provisions of this Agreement, the International Underwriting
Agreement, the Exchange Agreement, the Stockholder Agreement and the
Power of Attorney and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound, or to which any of
the property or assets of such Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws or other organizational
documents, as applicable, of such Selling Stockholder or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the property
of such Selling Stockholder, except that such Selling Stockholder makes
no representations under this sub-paragraph (b)(ii) as to the
registration or filing requirements or disclosure provisions of the
securities laws of the United States or the securities or Blue Sky laws
of any other jurisdiction, which representations are contained
elsewhere in this Agreement;
(iii) Immediately prior to each Time of Delivery, such Selling
Stockholder will have good and valid title to the Shares to be sold by
such Selling Stockholder hereunder and under the International
Underwriting Agreement, free and clear of all liens, encumbrances,
equities or claims; upon (i) payment for the Shares to be sold by the
Selling Stockholders in accordance with this
9
Agreement and the International Underwriting Agreement, (ii)
registration of the transfer of such Shares to, and registration of
such Shares in the name of, Cede & Co. or other nominee designated by
The Depository Trust Company ("DTC") and (iii) the crediting of such
Shares to the accounts maintained by DTC for the several Underwriters,
(A) the Underwriters will acquire "security entitlements" (as defined
in Section 8-102 of the Uniform Commercial Code as currently in effect
in the State of New York (the "UCC")) in respect of such Shares and (B)
no action based on an "adverse claim" (as defined in Section 8-102 of
the UCC) to such Shares may be asserted against the Underwriters with
respect to such security entitlements, assuming that each Underwriter
does not have "notice" (within the meaning of Section 8-105 of the UCC)
of any "adverse claim" (as defined in Section 8-102 of the UCC) to such
Shares;
(iv) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on behalf of such
Selling Stockholder;
(v) Each of the Exchange Agreement and the Stockholders
Agreement has been duly executed and delivered by or on behalf of, and
constitute valid and binding obligation of, such Selling Stockholder,
enforceable 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 equity principles;
(vi) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, such Selling Stockholder will not, directly or indirectly,
offer, sell, contract to sell or otherwise dispose of, except as
provided hereunder or under the International Underwriting Agreement,
any shares of Stock or any other securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option and stock
plans existing at the Time of Delivery, or as contemplated by the
Stockholders Agreement), without the prior written consent of Xxxxxxx,
Sachs & Co.;
(vii) 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;
(viii) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Selling Stockholder expressly for use therein, such
Preliminary Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(ix) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury
10
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof);
(x) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder and under
the International Underwriting Agreement will, upon consummation of
the transactions contemplated by the Exchange Agreement, be placed
in custody pursuant to the Exchange Agreement, with the Company as
custodian (the "Custodian"), and such Selling Stockholder has duly
executed and delivered a Power of Attorney contained in the
Exchange Agreement (the "Power of Attorney"), appointing the
Secretary of the Company as such Selling Stockholder's
attorney-in-fact (the "Attorney-in-Fact") with authority to, among
others, execute and deliver this Agreement and the International
Underwriting Agreement on behalf of such Selling Stockholder, to
determine the purchase price to be paid by the Underwriters and the
International Underwriters to the Selling Stockholders as provided
in Section 2 hereof, to authorize the delivery of the Shares to be
sold by such Selling Stockholder hereunder and otherwise to act on
behalf of such Selling Stockholder in connection with the
transactions contemplated by this Agreement, the International
Underwriting Agreement, the Exchange Agreement and the Stockholders
Agreement; and
(xi) The Shares represented by the certificates to be held in
custody for such Selling Stockholder under the Exchange Agreement will
be subject to the interests of the Underwriters hereunder and the
International Underwriters under the International Underwriting
Agreement; the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the
Attorney-in-Fact by the Power of Attorney, are to that extent
irrevocable; the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee
or the termination of such estate or trust, or in the case of a
partnership, corporation or other entity, by the dissolution of such
partnership, corporation or other entity, or by the occurrence of any
other event; if any individual Selling Stockholder or any such executor
or trustee should die or become incapacitated, or if any such estate or
trust should be terminated, or if any such partnership, corporation or
other entity 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 Stockholders in accordance with the terms and conditions of
this Agreement, the International Underwriting Agreement, the Exchange
Agreement and the Stockholders Agreement; and actions taken by the
Attorney-in-Fact pursuant to the Powers of Attorney shall be as valid
as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the
Attorney-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and each of the Selling Stockholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and each of
the Selling Stockholders, at a purchase price per share of $ , the number of
Firm Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Firm Shares to be sold by
the Company and each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which
is the aggregate number of Firm Shares to be purchased by such Underwriter as
set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased
by all of the Underwriters from the Company and all of the Selling
Stockholders hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as
provided below, 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 the purchase price per share set forth in clause
11
(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 937,500 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares shall be made in proportion to the number of Optional
Shares to be sold by each Selling Stockholder. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the
Attorney-in-Fact, 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 or,
unless you and the Attorney-in-Fact 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.
4. (a) The Company hereby confirms its engagement of the services
of the Independent Underwriter as, and the Independent Underwriter hereby
confirms its agreement with the Company to render services as, a "qualified
independent underwriter" within the meaning of Section 2(b)(15) of Rule 2720
with respect to the offering and sale of the Shares.
(b) The Independent Underwriter hereby represents and warrants
to, and agrees with, the Company and the Underwriters that with respect to the
offering and sale of the Shares as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified
independent underwriter" within the meaning of Section 2(b)(15) of Rule
2720;
(ii) The Independent Underwriter has participated in the
preparation of the Registration Statement and the Prospectus and has
exercised the usual standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an
examination of the Registration Statement, information regarding the
earnings, assets, capital structure and growth rate of the Company and
other pertinent financial and statistical data, (B ) inquiries of and
conferences with the management of the Company and its counsel and
independent public accountants regarding the business and operations of
the Company, (C) consideration of the prospects for the industry in
which the Company competes, estimates of the business potential of the
Company, assessments of its management, the general condition of the
securities markets, market prices of the capital stock and debt
securities of, and financial and operating data concerning, companies
believed by the Independent Underwriter to be comparable to the Company
and the demand for securities of comparable companies similar to the
Shares, and (D) such other studies, analyses and investigations as the
Independent Underwriter has deemed appropriate, and assuming that the
offering and sale
12
of the Shares is made as contemplated herein and in the Prospectus, the
Independent Underwriter recommends, as of the date of the execution and
delivery of this Agreement, that the initial public offering price for
each share be not more than $ , which maximum price should in no way
be considered or acted upon as an indication of the value of the
Shares;
(v) Subject to the provisions of Section 8 hereof, the
Independent Underwriter will furnish to the Underwriters at the Time of
Delivery a letter, dated the Time of Delivery, in form and substance
satisfactory to the Underwriters, to the effect of clauses (i) through
(iv) above.
(c) The Independent Underwriter hereby agrees with the Company and the
Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified independent underwriter" within the meaning of
Section 2(b)(15) of Rule 2720 with respect to the offering and sale of the
Shares as described in the Prospectus as so amended or supplemented that are
substantially the same as those services being rendered with respect to the
offering and sale of the Shares as described in the Prospectus (including those
described in subsection (b) above.)
(d) The Company, the Underwriters and the Independent Underwriter agree
to comply in all material respects with all of the requirements of Rule 2720
applicable to them in connection with the offering and sale of the Shares. The
Company agrees to cooperate with the Underwriters and the Independent
Underwriter to enable the Underwriters to comply with Rule 2720 and the
Independent Underwriter to perform the services contemplated by this Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, the Company agrees to pay the Independent Underwriter $10,000 at the
Time of Delivery. In addition, the Company agrees promptly to reimburse the
Independent Underwriter for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with this Agreement
and the services to be rendered hereunder.
5. (a) The Shares to be purchased by each Underwriter
hereunder, in definitive form, and 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 Company and the Selling Stockholders
shall be delivered by or on behalf of the Company and the Selling
Stockholders to Xxxxxxx, Sachs & Co., through the facilities of DTC, for the
account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company and the Custodian,
as their interests may appear, to Xxxxxxx, Xxxxx & Co. at least forty-eight
hours in advance. The Company will cause the certificates representing the
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto
at the office of DTC or its designated custodian (the "Designated Office").
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 , 1999 or such other
time and date as Xxxxxxx, Sachs & Co., the Company 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,
Xxxxx & Co. in the written notice given by Xxxxxxx, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time
and date as Xxxxxxx, Xxxxx & 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 8 hereof, including the
cross-receipt for the Shares and any additional documents
13
requested by the Underwriters pursuant to Section 8(o) hereof, will be delivered
at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at each Time of Delivery. A meeting will be held at the
Closing Location at 3:00 p.m., New York City time, on the New York Business Day
next preceding each Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 5 (and
Section 6(c) hereof), "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
6. Each of the Company, NB LLC and NBMI agrees with each of the
Underwriters and the Independent Underwriter:
(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 which
shall be disapproved by you promptly after reasonable notice thereof; 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 copies thereof; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or Prospectus, of
the suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process or take any action that would subject the Company to any
material tax to which it would not otherwise be subject in any jurisdiction;
(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 and the Independent Underwriter 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 prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus in order to comply with
the Act to notify you and upon your request to prepare and furnish without
charge to each Underwriter and the Independent 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
14
supplement to the Prospectus which will correct such statement or omission or
effect such compliance, and in case any Underwriter or the Independent
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 or
Independent Underwriter, to prepare and deliver to such Underwriter or
Independent Underwriter as many copies as you may reasonably request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to, directly or indirectly, offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder and under the International
Underwriting Agreement, any shares of Stock or any other securities of the
Company that are substantially similar to the Shares, 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 1999 Xxxxxxxxx Xxxxxx Directors Stock
Incentive Plan, the 1999 Xxxxxxxxx Xxxxxx Long-Term Incentive Plan and the
Xxxxxxxxx Xxxxxx Employee Deferred Contribution Stock Incentive Plan as in
effect on the date of this Agreement), without the prior written consent of
Xxxxxxx, Sachs & Co.;
(f) To furnish to its stockholders (i) 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 (ii) 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, in each case no later than required by
the rules and regulations of the Commission or any national securities exchange
on which any securities of the Company may be listed;
(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 concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement and the International Underwriting
Agreement in the manner specified in the Prospectus under the caption "Use of
Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "NYSE");
15
(j) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), to 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
at the time of such filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
7. The Company covenants and agrees with the several Underwriters
and the Independent Underwriter that 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, Independent Underwriter,
and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the International Underwriting Agreement, the
Agreement between Syndicates, the Selling Agreements, the Blue Sky
Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery
of the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in
Section 6(b) hereof, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) all fees and expenses in connection
with listing the Shares on the NYSE; (v) the filing fees incident to, and the
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) any expenses and taxes incident to the sale and
delivery of the Shares to be sold by the Selling Stockholders to the
Underwriters and (ix) all other costs and expenses incident to the
performance of the Company's and each Selling Stockholder's obligations
hereunder (other than fees and expenses of individual counsel for such
Selling Stockholder which is not counsel to the Selling Stockholders as a
group) which are not otherwise specifically provided for in this Section. In
connection with (viii) of the preceding sentence, Xxxxxxx, Xxxxx & Co. agrees
to pay any required New York State stock transfer tax, and such Selling
Stockholders agree to reimburse Xxxxxxx, Sachs & Co. for associated carrying
costs if such tax payment is not rebated on the day of payment and for any
portion of such tax payment not rebated. It is understood, however, that the
Company shall bear, and the Selling Stockholders 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 10 and 13 hereof,
the Underwriters and the Independent 15 Underwriter will pay all of their own
costs and expenses, including the fees of their counsel, stock transfer taxes
on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
8. The respective obligations of the Underwriters and the Independent
Underwriter 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, the condition (in the case of the Underwriters) that the Independent
Underwriter shall have furnished to the Underwriters the letter referred to in
clause (v) of Section 4(b) hereof 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
16
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 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) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated such Time of Delivery, with
respect to the incorporation of the Company, the validity of the Shares being
delivered at such Time of Delivery, the Registration Statement and the
Prospectus, 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) Debevoise & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(b)(1) 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 the State 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 shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable;
and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) The Company 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, except for
any failures to be so qualified or in good standing that,
individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect (such counsel
being entitled to rely in respect of the opinion in this
clause upon certificates of government officials in the
relevant jurisdictions regarding the Company's
qualification as a foreign corporation and good standing
and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall
state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(iv) NB LLC has been duly formed and is validly
existing as a limited liability company in good standing under
the laws of the State of Delaware; all of the membership
interests of NB LLC have been validly issued in accordance
with applicable law and the limited liability company
agreement of NB LLC, and are owned directly by the Company;
NBMI has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
New York; all of the issued shares of capital stock of NBMI
have been duly and validly authorized and issued, are fully
paid and non-assessable, and are owned directly by the
Company; and each of NB LLC and NBMI 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, except for failures to be
so qualified or in good standing that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect (such counsel being entitled to rely in respect
of the opinion in this clause
17
upon certificates of government officials in the relevant
jurisdictions regarding each of NB LLC's and NBMI's
qualification as a foreign corporation and good standing
and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that
such counsel shall state that they believe that both you
and they are justified in relying upon such opinions and
certificates);
(v) To the best of 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 that,
individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect, would adversely affect the
issuance and sale of the Shares or would affect the validity
of this Agreement, the International Underwriting Agreement,
the Exchange Agreement or the Stockholders Agreement; and, to
the best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or others;
(vi) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by each of the Company, NB LLC and NBMI; and each of
the Company, NB LLC and NBMI has all requisite corporate power
and authority to perform its obligations under this Agreement
and the International Underwriting Agreement and to consummate
the transactions contemplated hereby and thereby, including
without limitation, in the case of the Company, the corporate
power and authority to issue, sell and deliver the Shares as
provided herein and therein;
(vii) Each of (A) the Exchange Agreement and (B)
the Stockholders Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and
binding obligation of, the Company (in the case of (A) and
(B)) and each of NB LLC and NBMI (in the case of (A)),
enforceable against such party 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 equity principles;
(viii) The issue and sale of the Shares being
delivered at such Time of Delivery to be sold by the Company
and the compliance by each of the Company, NB LLC and NBMI
with all of the provisions of this Agreement, the
International Underwriting Agreement, the Exchange Agreement
and the Stockholders Agreement, as applicable, and the
consummation of the transactions herein and therein
contemplated (a) 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 known
to such counsel to which the Company, NB LLC or NBMI or any
of their respective subsidiaries is a party or by which the
Company, NB LLC or NBMI or any of their respective
subsidiaries is bound or to which any of the property or
assets of the Company, NB LLC or NBMI or any of their
respective subsidiaries is subject, (b) result in any
violation of the provisions of the Certificate of
Incorporation or By-laws or other organizational documents
of the Company or NB LLC or NBMI, or (c) result in any
violation of any New York, Delaware corporate or United States
federal statute, order, rule or regulation (other than State
securities or Blue Sky laws as to which such counsel need
express no opinion, and other than United States federal
securities laws, as to which such counsel need express no
opinion except as otherwise specifically set forth herein), or
any order known to such counsel of any New York, Delaware
(insofar as Delaware corporate law is concerned) or United
States federal court or governmental agency or body having
jurisdiction over the Company, NB LLC or NBMI or any of their
respective subsidiaries or any of their properties, except, in
the case of clauses (a) and (c) above, any conflicts,
breaches, defaults or violations that, individually or in the
aggregate, would not reasonably be expected to have
18
a Material Adverse Effect or impair the ability of the Company
and its subsidiaries to perform their respective obligations
under, or consummate the transactions contemplated by, this
Agreement, the International Underwriting Agreement, the
Exchange Agreement or the Stockholders Agreement, as
applicable;
(ix) No consent, approval, authorization, order,
registration or qualification of or with any New York,
Delaware (insofar as Delaware corporate law is concerned) or
United States federal court or governmental agency or body is
required for the issue and sale of the Shares or the
consummation by the Company or any of its subsidiaries of the
transactions contemplated by this Agreement, the International
Underwriting Agreement, the Exchange Agreement or the
Stockholders Agreement, except the registration under the Act
of the Shares and the registration under the Exchange Act of
the Stock, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters;
(x) 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,
under the caption "United States Federal Tax Considerations
for Non-U.S. Holders" in the Prospectus relating to the
International Shares, and under the captions "Management",
"Certain Relationships and Related Transactions" and
"Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are,
in all material respects, accurate and complete summaries or
descriptions thereof;
(xi) Consummation of the transactions contemplated by
this Agreement, the International Underwriting Agreement or
the Exchange Agreement will not constitute an "assignment",
within the meaning of such term under the Advisers Act (and
the rules and regulations thereunder) or the Investment
Company Act (and the rules and regulations thereunder);
(xii) Such counsel does not know of any contracts or
other documents which are required to be filed as exhibits to
the Registration Statement by the Act or by the rules and
regulations thereunder which have not been filed as exhibits
to the Registration Statement;
(xiii) The Company is not required to be registered,
licensed or qualified as an investment adviser or a
broker-dealer or as a commodity trading advisor, a commodity
pool operator or a futures commission merchant or any or all
of the foregoing, as applicable; each of the Company's
subsidiaries that is required to be registered as an
investment adviser under the Advisers Act is so registered
(and such registration is in full force and effect), except
for failures to be so registered that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect; each of the Company's subsidiaries that is
required to be registered as a broker-dealer under the
Exchange Act is so registered (and such registration is in
full force and effect), except for failures to be so
registered that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; each
of the Company's subsidiaries that is required to be
registered as a commodity trading advisor and/or commodity
pool operator under the Commodity Exchange Act (the "CEA") is
so registered (and such registration is in full force and
effect), except for failures to be so registered that,
individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; each of the
Company's subsidiaries that is required to be registered as a
futures commission merchant under the CEA is so registered
(and such registration is in full force and effect), except
for failures to
19
be so registered that, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect;
each of the Company's subsidiaries has been duly registered,
licensed or qualified as an investment adviser or a
broker-dealer or as a commodity trading advisor, commodity
pool operator or a futures commission merchant or any or all
of the foregoing, as applicable, in all jurisdictions in which
the conduct of its business requires such registration,
licensing or qualification, except for failures to be so
registered, licensed or qualified that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect;
(xiv) Neither the Company nor any of its subsidiaries
is and, after giving effect to the offering and sale of the
Shares, will be an "investment company" or an entity
"controlled" by an "investment company", as such terms are
defined in the Investment Company Act; and
(xv) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements, related notes and schedules and other
financial data therein, as to which such counsel need express
no opinion) comply as to form in all material respects with
the requirements of the Act and the rules and regulations
thereunder.
In addition, such counsel shall state that it has participated
in conferences with directors, officers and other representatives of the
Company, various of the Selling Stockholders, representatives of the independent
public accountants for the Company, representatives of the Underwriters and
representatives of counsel for the Underwriters, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed, and, although such counsel has not independently verified and is
not passing upon and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, except to the extent specified in subsection (x) of this Section
8(c)(1), no facts have come to such counsel's attention which leads such counsel
to believe that the Registration Statement, as of its effective date, (other
than the financial statements, related notes and schedules and other financial
data, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements, related notes and schedules and other financial data, as
to which such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of such
Time of Delivery, either the Registration Statement or the Prospectus or any
further amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements, related notes and schedules
and other financial data, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits 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.
(d) C. Xxxx Xxxxxxxx, Senior Vice President and General
Counsel of the Company, shall have furnished to you his written opinion,
dated such Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) Each of (A) Xxxxxxxxx & Xxxxxx Trust Company, (B)
Xxxxxxxxx & Xxxxxx Trust Company of Delaware, (C) Xxxxxxxxx &
Xxxxxx Agency, Inc. and (D) Xxxxxxxxx & Xxxxxx Trust Company
of Florida (which, together with NB LLC and NBMI, constitute
all the
20
subsidiaries 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; all of the issued
shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and
non-assessable, and are owned indirectly by the Company
through NB LLC, to the best of such counsel's knowledge, free
and clear of all liens, encumbrances, equities or claims; and
each such subsidiary 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, except for any failures to be so
qualified or in good standing that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and
certificates);
(ii) To the best of such counsel's knowledge and
except as set forth in or contemplated by the Prospectus,
there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or
liens related to or entitling any person to purchase or
otherwise to acquire any shares of the capital stock of,
membership interests or other ownership interest in, the
Company or any of its subsidiaries; and all of the membership
interests of NB LLC and the issued shares of capital stock of
NBMI are owned by the Company free and clear of all liens,
encumbrances, equities or claims;
(iii) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation or By-laws
or other organizational documents or, except for such defaults
that would not have a Material Adverse Effect, 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; and
(iv) Each fund sponsored by any of the Company's
subsidiaries which is required to be registered with the
Commission as an investment company under the Investment
Company Act is listed in Annex III hereto.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the laws of the State of New York,
Delaware corporate and the federal laws of the United States.
(e) Xxxxxxxxxxx & Xxxxxxxx LLP and Dechert Price & Xxxxxx,
counsel for the funds sponsored by the Company's subsidiaries, shall have
furnished to you their written opinions dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that, in the case of such
opinion of Xxxxxxxxxxx & Xxxxxxxx LLP, each Fund listed in Annex II hereto,
and, in the case of such opinion of Dechert Price & Xxxxxx, each Fund listed
in Annex III hereto, is duly registered with the Commission as an investment
company under the Investment Company Act, except for failures to be so
registered that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect.
21
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the laws of the State of New York,
Delaware corporate and the federal laws of the United States.
(f) Debevoise & Xxxxxxxx, counsel for the Selling
Stockholders, shall have furnished to you its written opinion (drafts of such
opinion are attached as Annex II(c) hereto) dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) A Power of Attorney, the Exchange Agreement
and the Stockholders Agreement have been duly executed and
delivered by each Selling Stockholder and constitute valid
and legally binding agreements of such Selling Stockholder
in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights generally and to general equity
principles;
(ii) This Agreement and the International
Underwriting Agreement have been duly executed and delivered
by or on behalf of each Selling Stockholder; and the sale of
the Shares to be sold by such Selling Stockholder hereunder
and thereunder and the compliance by such Selling Stockholder
with all of the provisions of this Agreement, the
International Underwriting Agreement, the Exchange Agreement,
the Stockholders Agreement and the Power of Attorney and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which such Selling Stockholder is a party
or by which such Selling Stockholder is bound, or to which any
of the property or assets of such Selling Stockholder is
subject and that is material to such Selling Stockholder, nor
will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws or other
organizational documents, as applicable, of such Selling
Stockholder or any rule or regulation (other than State
securities or Blue Sky laws as to which such counsel need
express no opinion, and other than United States federal
securities laws, as to which such counsel need express no
opinion except as otherwise specifically set forth herein) or
any order known to such counsel of any New York, Delaware
(insofar as Delaware corporate law is concerned) or United
States federal court, governmental agency or body having
jurisdiction over such Selling Stockholder or the property of
such Selling Stockholder;
(iii) No consent, approval, authorization or order of
any New York, Delaware (insofar as Delaware corporate law is
concerned) or United States federal court or governmental
agency or body is required for the consummation of the
transactions contemplated by this Agreement, the International
Underwriting Agreement, the Exchange Agreement or the
Stockholders Agreement in connection with the Shares to be
sold by such Selling Stockholder hereunder or thereunder,
except those which have been duly obtained and are in full
force and effect, the registration of the Shares under the
Act, the registration of the Stock under the Exchange Act and
such as may be required under foreign or state securities or
Blue Sky laws in connection with the purchase and distribution
of such Shares by the Underwriters or the International
Underwriters; and
(iv) Upon (i) payment for the Shares to be sold by
the Selling Stockholders in accordance with this Agreement and
the International Underwriting Agreement, (ii)
22
registration of the transfer of such Shares to, and
registration of such Shares in the name of, Cede & Co. or
other nominee designated by DTC and (iii) the crediting of
such Shares to the accounts maintained by DTC for the several
Underwriters, assuming that such accounts are "securities
accounts" (as defined in Section 8-501 of the UCC), (A) the
Underwriters will acquire "security entitlements" (as defined
in Section 8-102 of the UCC) in respect of such Shares and (B)
no action based on an "adverse claim" (as defined in Section
8-102 of the UCC) to such Shares may be asserted against the
Underwriters with respect to such security entitlements,
assuming that each Underwriter does not have "notice" (within
the meaning of Section 8-105 of the UCC) of any "adverse
claim" (as defined in Section 8-102 of the UCC) to such
Shares.
In rendering the opinion in subparagraph (iv) such counsel may rely upon a
certificate of such Selling Stockholder in respect of matters of fact as to
ownership of, and liens, encumbrances, equities or claims on the Shares sold by
such Selling Stockholder, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such certificate;
(g) 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,
Xxxxxx Xxxxxxxx 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 I(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 I(b) hereto);
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus there shall
not have been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development 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, 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;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(j) 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 NYSE; (ii) a suspension or material limitation in
trading in the Company's securities on the NYSE; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States
23
of a national emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Representatives makes it 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;
(k) The Shares to be sold by the Company and the Selling
Stockholders at such Time of Delivery shall have been duly listed, subject to
notice of issuance, on the NYSE;
(l) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each Management Stockholder that is not a
party to this Agreement substantially to the effect set forth in Subsection 6(e)
hereof in form and substance satisfactory to you;
(m) (A) The Company shall have delivered to the Underwriters
executed copies of the Exchange Agreement and the Stockholders Agreement, and
(B) the transactions contemplated under the Exchange Agreement shall have been
duly and validly consummated in accordance with applicable law;
(n) The Company shall have complied with the provisions of
Section 6(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement; and
(o) 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 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), (h) and
(m)(B) of this Section, and as to such other matters as you may reasonably
request.
9. The Independent Underwriter hereby consents to the references to it
as set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 6(a) hereof.
10. (a) Each of the Company, NB LLC and NBMI, jointly and
severally, will indemnify and hold harmless each Underwriter and the Independent
Underwriter, as the case may be, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or the Independent
Underwriter, as the case may be, 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, and will reimburse each Underwriter or
the Independent Underwriter, as the case may be, for any legal or other expenses
reasonably incurred by such Underwriter or the Independent Underwriter, as the
case may be, in connection with investigating or defending any such action or
claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company, NB LLC
and NBMI 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 or on behalf of any Underwriter
24
through Xxxxxxx, Sachs & Co. or the Independent Underwriter expressly for use
therein or constitutes a reference to the Independent Underwriter consented to
by it pursuant to Section 9 hereof.
(b) Each of the Selling Stockholders will indemnify and hold
harmless each Underwriter and the Independent Underwriter, in proportion to the
maximum number of Shares sold by such Selling Stockholder, including any
Optional Shares, as set forth in Schedule II hereto, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or the
Independent Underwriter, as the case may be, 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, and will reimburse each
Underwriter or the Independent Underwriter, as the case may be, for any legal or
other expenses reasonably incurred by such Underwriter or the Independent
Underwriter, as the case may be, 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 or on behalf of any Underwriter
through Xxxxxxx, Xxxxx & Co. or the Independent Underwriter expressly for use
therein or constitutes a reference to the Independent Underwriter consented to
by it pursuant to Section 9 hereof; PROVIDED, FURTHER, that the liability of a
Selling Stockholder pursuant to this Section 10(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 of the Shares as set forth in the
Prospectus.
(c) Each Underwriter will indemnify and hold harmless the
Company, NB LLC, NBMI, each Selling Stockholder and the Independent Underwriter,
as the case may be, against any losses, claims, damages or liabilities to which
the Company, NB LLC, NBMI, such Selling Stockholder or the Independent
Underwriter, as the case may be, 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 or on
behalf of such Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein; and will reimburse the Company, NB LLC, NBMI, each Selling Stockholder
and the Independent Underwriter, as the case may be, for any legal or other
expenses reasonably incurred by the Company, NB LLC, NBMI, such Selling
Stockholder or the Independent Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred.
(d) The Independent Underwriter will indemnify and hold
harmless the Company, NB LLC, NBMI, each Selling Stockholder and each
Underwriter, as the case may be, against any losses, claims, damages or
liabilities to which the Company, NB LLC, NBMI, such Selling Stockholder or such
Underwriter, as the case may be, 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
25
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 the Independent Underwriter expressly
for use therein or constitutes a reference to the Independent Underwriter
consented to by it pursuant to Section 9 hereof; and reimbursement the Company,
NB LLC, NBMI, each Selling Stockholder and each Underwriter, as the case may be,
for any legal or other expenses reasonably incurred by the Company, NB LLC,
NBMI, each Selling Stockholder and such Underwriter, as the case may be, in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(e) Promptly after receipt by an indemnified party under
subsection (a), (b), (c) or (d) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an 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. 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 counsel satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(f) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (d) 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 each party to the Agreement 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 (e) 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 each party to the Agreement 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, NB LLC,
NBMI, the Selling Stockholders, the Underwriters and the Independent Underwriter
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company and the Selling Stockholders, the total
underwriting discounts and commissions payable to the Underwriters as set forth
in the table on the cover page of the Prospectus and the fee payable to the
Independent Underwriter pursuant to the first sentence of Section 4(e) hereof,
respectively, bear to the sum of the total proceeds from the sale of the
26
Shares (before deducting expenses) in the offering and the fee payable to the
Independent Underwriter pursuant to the first sentence of Section 4(e) hereof.
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 either
the Underwriters or the Independent Underwriter on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, NB LLC, NBMI, each of the
Selling Stockholders, the Underwriters and the Independent Underwriter agree
that it would not be just and equitable if contributions pursuant to this
subsection (f) were determined by PRO RATA allocation (even if the Underwriters
and the Independent Underwriter 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 (f). 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
(f) 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 (f), (i)
neither the Underwriter nor the Independent 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 and the Independent Underwriter shall not be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by the Underwriters and distributed to the public were offered to
the public, exceeds the amount of any damages which such Underwriter or the
Independent Underwriter, as the case may be, has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission and (ii) no Selling Stockholder shall be required to contribute an
amount in excess of the product of the number of Shares sold by such Selling
Stockholder, including any Optional Shares, and the initial public offering
price of the Shares as set forth in the Prospectus. 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
(f) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(g) The obligations of the Company, NB LLC, NBMI and the
Selling Stockholders under this Section 10 shall be in addition to any liability
which the Company, NB LLC, NBMI 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 or the Independent Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 10 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 about to
become a director of the Company) and to each person, if any, who controls the
Company, NB LLC, NBMI, any Selling Stockholder or the Independent Underwriter
within the meaning of the Act; and the obligations of the Independent
Underwriter under this Section 10 shall be in addition to any liability which
the Independent Underwriter 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
about to become a director of the Company) and to each person, if any who
controls the Company, NB LLC, NBMI, any Selling Shareholder or any underwriter
within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company and the Selling Stockholders shall
be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to you to purchase such Shares on
such terms. In the event that, within the
27
respective prescribed periods, you notify the Company and the Selling
Stockholders that you have so arranged for the purchase of such Shares, or the
Company and the Selling Stockholders notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling Stockholders
shall have the right to postpone such Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders, except
for the expenses to be borne by the Company and the Selling Stockholders and the
Underwriters as provided in Section 7 hereof and the indemnity and contribution
agreements in Section 10 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, NB LLC, NBMI, the Selling Stockholders and
the several Underwriters and the Independent Underwriter, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, the Independent Underwriter, or any controlling person of
any Underwriter, the Independent Underwriter, or the Company, NB LLC, NBMI or
any of the Selling Stockholders, or any officer or director or controlling
person of the Company, NB LLC, NBMI, or any controlling person of any Selling
Stockholder, and shall survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11
hereof, neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter or the Independent Underwriter except as provided
in the second sentence of Section 4(e) hereof and Sections 7 and 10 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Stockholders as provided herein, the Company and each of
the Selling Stockholders pro rata (based on the number of Shares to be sold by
the Company and such Selling Stockholder hereunder) 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,
28
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
or the Independent Underwriter in respect of the Shares not so delivered except
as provided in the second sentence of Section 4(e) hereof and Sections 7 and 9
hereof.
14. In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as
the representatives; and in all dealings with any Selling Stockholder
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling Stockholder
made or given by the Attorney-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxx Xxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to the Independent Underwriter shall be delivered or sent by
mail, letter or facsimile transmission to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; if to any Selling Stockholder shall be delivered or
sent by mail, telex or facsimile transmission to counsel for such Selling
Stockholder at its address set forth in Schedule II hereto; and if to the
Company, NB LLC or NBMI shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; PROVIDED, HOWEVER, that any notice to an
Underwriter pursuant to Section 10(d) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Stockholders by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Independent Underwriter, the Company, NB LLC,
NBMI and the Selling Stockholders and, to the extent provided in Sections 10 and
12 hereof, the officers and directors of the Company and each person who
controls the Company, NB LLC, NBMI, any Selling Stockholder, the Independent
Underwriter or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 12 counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters and the Independent Underwriter, this
letter and such acceptance hereof shall constitute a binding agreement among
each of the Underwriters, the Independent Underwriter, the Company, NB LLC, NBMI
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 (U.S. Version), 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.
29
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 Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
Xxxxxxxxx Xxxxxx Inc.
By:
------------------------------------
Name:
Title:
Xxxxxxxxx Xxxxxx, LLC
By:
------------------------------------
Name:
Title:
Xxxxxxxxx Xxxxxx Management Inc.
By:
------------------------------------
Name:
Title:
The Selling Stockholders listed in Schedule II hereto
By:
------------------------------------
Name:
Title: As Attorney-in-Fact acting on behalf of
each of the Selling Stockholders named
in Schedule II to this Agreement.
Accepted as of the date hereof
in New York, New York:
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxxx & Co. Inc.
By:
---------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
30
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
Xxxxxxx, Sachs & Co....................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................................
Xxxxxx Xxxxxxx & Co. Incorporated......................................
Xxxxxxx Xxxxx Barney Inc...............................................
Bear, Xxxxxxx & Co. Inc................................................
CIBC World Markets Corp................................................
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation....................
Xxxxxxxx & Co. Inc.....................................................
Total ............................................. 6,250,000 937,500
31
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- ------------------
The Company....................................................... 2,612,330 0
The Selling Stockholders(a):
Xxxxxxx X. Xxxxxxxx Associates, L.P...................... 39,245 10,115
Xxxxxx X. Xxxxx.......................................... 325 47,053
Xxxxx Associates, L.P.................................... 182,250 0
Berlin Associates, L.P................................... 80,586 20,769
Xxxxxxx Xxxxxx........................................... 47,905 12,346
Xxxxxxx Associates, L.P.................................. 34,227 8,824
Xxxxxx X. D'Alelio....................................... 13,782 3,552
Xxxxxxxxx X'Xxxx......................................... 21,619 5,572
Xxxxxxx Xxxxxx........................................... 53,542 15,034
Egener Associates, L.P................................... 63,126 15,034
Xxxxxxx X. Xxxxxxxx...................................... 29,026 7,480
Xxxxxx X. English........................................ 37,435 9,648
Xxxx X. Xxxxxxx.......................................... 28,260 7,283
Xxxxxxx X. Xxxxxxxxx..................................... 29,891 0
Francfort 1998 Grantor Retained Annuity Trust............ 56,072 22,154
Xxxxxx X. Xxxxx.......................................... 77,367 31,984
Ganek Associates, L.P.................................... 46,735 0
Xxxxxx X. Xxxxxxxxx...................................... 64,418 16,602
Xxxxxxxx X. Xxxxxxxx..................................... 41,403 12,477
Giuliano Associates, L.P................................. 7,010 0
Xxxx X. Xxxxxxxxx........................................ 24,978 5,356
Xxxxxxxxx Associates, L.P................................ 2,586 1,747
Xxx X. Xxxxxxx........................................... 29,097 7,499
Xxxx X. Xxxxxx........................................... 42,500 10,953
Xxxxxxx X. Xxxx.......................................... 2,286 589
Xxxxxxx X. Xxxxx......................................... 43,413 11,188
Xxxx X. Xxxxxxx.......................................... 92,745 23,903
Xxxxxxxxxxxx Associates, L.P............................. 21,294 5,488
Xxxxx Xxxxxxx............................................ 15,666 26,374
Lainoff Associates, L.P.................................. 86,669 0
Xxxxxx X. Xxxxxx......................................... 28,260 7,283
Xxxxxxx X. Xxxxxx........................................ 34,454 8,879
Xxxxxxxxxxx X. Xxxxxxxx.................................. 51,822 13,355
Xxxxxxxx Xxxx III Associates, L.P........................ 59,728 15,393
Xxxxxx X. XxXxxxxx....................................... 49,832 12,843
Xxxxxx XxXxxxxx.......................................... 33,873 8,730
32
Xxxxxxxxx Associates, L.P................................ 110,366 28,444
Xxxx X. Xxxxxx........................................... 99,606 25,671
Neuberger Associates, L.P................................ 19,834 5,112
Xxxxxx X. Xxxxxx......................................... 11,633 2,998
Xxxxxx Associates, L.P................................... 23,265 5,996
Xxxxxx X. Xxxxxxx........................................ 86,911 22,398
Xxxxxx X. Xxxxxx......................................... 12,774 3,292
Xxxxxxx 1998 Grantor Retained Annuity Trust.............. 60,159 15,504
Xxxxxxx X. Xxxxxx........................................ 25,874 6,668
Xxxxx X. Xxxxxxx......................................... 91,914 23,688
C. Xxxx Xxxxxxxx......................................... 23,854 6,147
Xxxxx X. Risen........................................... 41,019 10,572
Xxxxxx X. Xxxxxxxxxx..................................... 22,235 5,730
J. Xxxx Xxxxxxxxxxxxx.................................... 23,838 6,144
Xxxxxxxx XX Associates, L.P.............................. 314,141 80,960
Xxxxxxxx XX Associates, L.P.............................. 314,141 80,960
Xxxxxxxx X. Silver....................................... 39,859 10,272
Xxxx X. Xxxxxx........................................... 85,556 22,049
R. Xxxxxx Xxxxxx......................................... 41,316 15,758
Xxxxxx Xxxxxx Xxxxxx 1998 Grantor Retained Annuity Trust. 19,828 0
Xxxxxx X. Xxxxxx......................................... 21,988 5,666
Xxxxxxx X. Xxxxx......................................... 13,548 3,491
Xxxx Xxxxx............................................... 35,533 9,158
Xxxxxxx Xxxxx Sterne..................................... 39,370 10,147
Xxxxxxxxx X. Xxxxxxx..................................... 3,085 795
Xxxxxx X. Xxxxxx......................................... 14,278 3,680
The Xxxxxxx 1998 Trust................................... 37,232 9,596
Xxxxx X. Xxxxxx 1998 Grantor Retained Annuity Trust...... 23,067 6,800
Xxxxxx 1998 GST Trust.................................... 3,319 0
Xxxxxxx X. Xxxxxxxx Xx................................... 14,177 3,653
Xxxxxx X. Xxxx........................................... 90,329 23,279
Xxxxx X. Xxxxxx.......................................... 42,836 16,623
Weiner 1998 Grantor Retained Annuity Trust............... 21,667 0
Xxxxxxxx Associates, L.P................................. 235,691 60,742
--------- ---------
TOTAL..................................... 6,250,000 937,500
--------- ---------
--------- ---------
(a) Each of the Selling Stockholders named above is
represented by Debevoise & Xxxxxxxx, counsel to the Selling Stockholders, and
ha appointed the Company as the Attorney-in-Fact for such Selling Stockholder.
33
ANNEX I
Pursuant to Section 8(g) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations thereunder adopted by the
Commission;
(ii) In their opinion, the financial statements, the Selected
Historical Combined Financial Data for the five most recent fiscal
years, management's discussion and analysis of financial condition and
results of operations and any supplementary financial information and
schedules (and, if applicable, financial forecasts and/or pro forma
financial information) examined by them and included in the Prospectus
or the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act, Item
301 of Regulation S-K under the Act, Item 303 of Regulation S-K under
the Act and the related rules and regulations adopted by the
Commission; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the unaudited combined interim financial
statements, selected financial data, pro forma financial information,
financial forecasts, management's discussion and analysis of financial
condition and results of operations and/or condensed financial
statements derived from audited financial statements of the Company for
the periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representatives of
the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed combined statements of income, combined
balance sheets and combined statements of changes in principals'
capital and combined statements of cash flows, and management's
discussion and analysis of financial condition and results of
operations included in the Prospectus as indicated in their reports
thereon copies of which are attached hereto; and on the basis of
specified procedures including inquiries of officials of the Company
who have responsibility for financial and accounting matters regarding
whether the unaudited condensed combined financial statements referred
to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related rules and regulations adopted by the Commission, nothing came
to their attention that caused them to believe that the unaudited
condensed combined financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect
to the combined results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited combined financial statements for such
five fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302
and 402, respectively, of Regulation S-K;
1
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited combined statements of income,
combined balance sheets and combined statements of cash flows
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related rules and regulations adopted by
the Commission, or (ii) any material modifications should be
made to the unaudited condensed combined statements of income,
combined balance sheets, combined statements of changes in
principals' capital and combined statements of cash flows
included in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited combined
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited combined
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with
the basis for the audited combined financial statements
included in the Prospectus;
(D) any unaudited pro forma combined condensed
financial statements included in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Act and the rules and
regulations adopted by the Commission thereunder or the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the combined capital stock or principal's capital or any
increase in the combined long-term debt of the Company and its
subsidiaries, or any decreases in combined net current assets
or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in clause (E) there were any
decreases in combined net revenues or operating profit or the
total or per share amounts of combined net income or other
items specified by the Representatives, or any increases in
any items
2
specified by the Representatives, in each case as compared
with the comparable period of the preceding year and with any
other period of corresponding length specified by the
Representatives, except in each case for decreases or
increases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus, or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
3
Annex II
--------
EQUITY MANAGERS TRUST
Xxxxxxxxx Xxxxxx Focus Portfolio
Xxxxxxxxx Xxxxxx Genesis Portfolio
Xxxxxxxxx Xxxxxx Guardian Portfolio
Xxxxxxxxx Xxxxxx Manhattan Portfolio
Xxxxxxxxx Xxxxxx Millennium Portfolio
Xxxxxxxxx Xxxxxx Partners Portfolio
Xxxxxxxxx Xxxxxx Regency Portfolio
Xxxxxxxxx Xxxxxx Socially Responsive Portfolio
GLOBAL MANAGERS TRUST
Xxxxxxxxx Xxxxxx International Portfolio
XXXXXXXXX XXXXXX EQUITY FUNDS
Xxxxxxxxx Xxxxxx Focus Fund
Xxxxxxxxx Xxxxxx Genesis Fund
Xxxxxxxxx Xxxxxx Guardian Fund
Xxxxxxxxx Xxxxxx International Fund
Xxxxxxxxx Xxxxxx Manhattan Fund
Xxxxxxxxx Xxxxxx Millennium Fund
Xxxxxxxxx Xxxxxx Partners Fund
Xxxxxxxxx Xxxxxx Regency Fund
Xxxxxxxxx Xxxxxx Socially Responsive Fund
XXXXXXXXX XXXXXX EQUITY TRUST
Xxxxxxxxx Xxxxxx Focus Trust
Xxxxxxxxx Xxxxxx Genesis Trust
Xxxxxxxxx Xxxxxx Guardian Trust
Xxxxxxxxx Xxxxxx International Trust
Xxxxxxxxx Xxxxxx Manhattan Trust
Xxxxxxxxx Xxxxxx Millennium Trust
Xxxxxxxxx Xxxxxx NYCDC Socially Responsive Trust
Xxxxxxxxx Xxxxxx Partners Trust
Xxxxxxxxx Xxxxxx Regency Trust
XXXXXXXXX XXXXXX EQUITY ASSETS
Xxxxxxxxx Xxxxxx Focus Assets
Xxxxxxxxx Xxxxxx Genesis Assets
Xxxxxxxxx Xxxxxx Guardian Assets
Xxxxxxxxx Xxxxxx Manhattan Assets
Xxxxxxxxx Xxxxxx Partners Assets
Xxxxxxxxx Xxxxxx Socially Responsive Trust
XXXXXXXXX XXXXXX EQUITY SERIES
Xxxxxxxxx Xxxxxx Genesis Institutional
Xxxxxxxxx Xxxxxx Socially Responsive Assets
INCOME MANAGERS TRUST
Xxxxxxxxx Xxxxxx Cash Reserves Portfolio
Xxxxxxxxx Xxxxxx Government Money Portfolio
Xxxxxxxxx Xxxxxx High Yield Bond Portfolio
Xxxxxxxxx Xxxxxx Limited Maturity Bond Portfolio
Xxxxxxxxx Xxxxxx Municipal Money Portfolio
Xxxxxxxxx Xxxxxx Municipal Securities Portfolio
XXXXXXXXX XXXXXX INCOME FUNDS
Xxxxxxxxx Xxxxxx Cash Reserves
Xxxxxxxxx Xxxxxx Government Money Fund
Xxxxxxxxx Xxxxxx High Yield Bond Fund
Xxxxxxxxx Xxxxxx Limited Maturity Bond Fund
Xxxxxxxxx Xxxxxx Municipal Money Fund
Xxxxxxxxx Xxxxxx Municipal Securities Fund
XXXXXXXXX XXXXXX INCOME TRUST
Xxxxxxxxx Xxxxxx Limited Maturity Bond Trust
ANNEX IIa
[Date]
Xxxxxxx, Sachs & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc.,
Bear, Xxxxxxx & Co. Inc.,
CIBC World Markets Corp.,
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation,
Xxxxxxxx & Co. Inc.,
As Representatives of the
Several Underwriters,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Dear Sirs:
In connection with the several purchases today by you pursuant
to the Underwriting Agreement, dated October |X|, 1999 (the "Underwriting
Agreement"), between Xxxxxxxxx Xxxxxx Inc., a Delaware corporation (the
"Company"), and you, as Representatives of the several Underwriters named
therein (the "Underwriters"), of 6,250,000 shares (the "Securities") of the
Company's Common Stock, par value $0.01 per share, we, as counsel for the
several Underwriters, have
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxx & Co. Inc.
examined such corporate records, certificates and other documents, and such
questions of law, as we have considered necessary or appropriate for the
purposes of this opinion. Upon the basis of such examination, we advise you
that, in our opinion:
(1) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
(2) The Securities have been duly authorized and validly
issued and are fully paid and nonassessable.
(3) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company under 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 for the
issuance, sale and delivery of the Securities by the Company to you
have been obtained or made.
(4) The Underwriting Agreement
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxx & Co. Inc.
has been duly authorized, executed and delivered by the Company.
The foregoing opinion is limited to 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, and we are expressing no opinion as to the effect of
the laws of any other jurisdiction.
With your approval, we have relied as to certain matters on
information obtained from public officials, officers of the Company and other
sources believed by us to be responsible, and we have assumed that the
certificates for the Securities conform to the specimen thereof examined by us
and have been duly countersigned and registered by the transfer agent and
registrar of the Securities and that the signatures on all documents examined by
us are genuine, assumptions which we have not independently verified.
Very truly yours,
[Date]
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc.,
Bear, Xxxxxxx & Co. Inc.,
CIBC World Markets Corp.,
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation,
Xxxxxxxx & Co. Inc.,
As Representatives of the
Several Underwriters,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is with reference to the registration under the
Securities Act of 1933 (the "Act") of 7,250,000 shares of Common Stock (the
"Securities") of Xxxxxxxxx Xxxxxx Inc. (the "Company"). When the Registration
Statement was declared effective by the Securities and Exchange Commission, the
form of prospectus included therein omitted certain information in reliance upon
Rule 430A under the Act. Such information is contained in the Prospectus and,
as provided in Rule 430A, is deemed to be a part of the Registration Statement
as of the time it was declared
Xxxxxxx, Sachs & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxx & Co. Inc. -2-
effective.
In accordance with our understanding with you as to the scope
of our services under the circumstances applicable to the offering of the
Securities, we reviewed the Registration Statement and the Prospectus,
participated in discussions with your representatives and those of the Company,
its counsel and its accountants, and advised you as to the requirements of the
Act and the applicable rules and regulations thereunder. On the basis of the
information that we gained in the course of the performance of the services
referred to above, considered in the light of our understanding of the
applicable law and the experience we have gained through our practice under the
Act, we advised you and now confirm that, in our opinion, the Registration
Statement, as of its effective date, and the Prospectus, as of the date of the
Prospectus, appeared on their face to be appropriately responsive in all
material respects to the requirements of the Act and the applicable rules and
regulations of the Securities and Exchange Commission thereunder. Further,
nothing that came to our attention in
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxx & Co. Inc. -3-
the course of such review has caused us to believe that the Registration
Statement, as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus, contained any untrue statement of
a material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
The limitations inherent in the independent verification of
factual matters and the character of determinations involved in the registration
process are such, however, that we do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for those made under the
captions "Description of Capital Stock" and "Underwriting" in the Prospectus
insofar as they relate to provisions of documents described therein.
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxxx & Co. Inc. -4-
Also, we do not express any opinion or belief as to the financial statements or
as to other financial data derived from accounting records contained in the
Registration Statement or the Prospectus.
This letter is furnished by us as counsel for the several
Underwriters to you as Representatives of the several Underwriters and is solely
for the benefit of the several Underwriters.
Very truly yours,
Annex II(b)(1)
October , 1999
To Each of the Addressees
Listed in Annex a Hereto
------------------------
Xxxxxxxxx Xxxxxx Inc.
---------------------
Ladies and Gentlemen:
We have acted as counsel to Xxxxxxxxx Xxxxxx Inc., a Delaware
corporation (the "Company") in connection with the issuance and sale by the
Company and certain selling stockholders of an aggregate of (1) 6,250,000
shares (the "U.S. Shares") of the Company's Common Stock, par value $.01 per
share ("Common Stock"), to the Underwriters named in the Underwriting
Agreement (U.S. Version), dated October , 1999 (the "U.S. Underwriting
Agreement"), among such Underwriters, the Company, Xxxxxxxxx Xxxxxx, LLC, a
Delaware limited liability company ("NB LLC"), Xxxxxxxxx Xxxxxx Management
Inc., a New York corporation ("NBMI") and the Selling Stockholders named
therein, pursuant to the U.S. Underwriting Agreement, and (2) 1,000,000
shares (the "International Shares" and, together with the U.S. Shares, the
"Shares") of Common Stock to the Underwriters named in the Underwriting
Agreement (International Version), dated October , 1999 (the "International
Underwriting Agreement'), among the Company, NB LLC, NBMI, the Selling
Stockholders named therein and the Underwriters named therein, pursuant to the
The Addressees Listed
on Annex A Hereto 2 October , 1999
---
International Underwriting Agreement. We have also acted as counsel to the
Company in connection with the preparation and filing with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations thereunder, of a Registration
Statement on Form S-1 (Registration No. 333-84525) relating to the Shares and
four amendments thereto (as so amended at the time it became effective, the
"Registration Statement") and the form of final prospectus for use in connection
with the offerings of the U.S. Shares filed by the Company with the Commission
pursuant to Rule 424(b) under the Act (the "Prospectus").
This opinion is being delivered to you pursuant to Section 8(c) of
the U.S. Underwriting Agreement. Capitalized terms not otherwise defined herein
have the meanings given in the U.S. Underwriting Agreement.
We have examined and relied upon the representations and
warranties as to factual matters made in or pursuant to the U.S. Underwriting
Agreement and other documents prepared in connection therewith, and upon the
originals, or copies certified or otherwise identified to our satisfaction,
of such documents, records, certificates and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinion
expressed herein. Additionally, with your permission, we have assumed,
without any investigation or independent verification, that:
(i) the signatures on all documents examined by
us are genuine;
(ii) all documents submitted to us as originals
or duplicate originals are authentic;
(iii) all documents submitted to us as copies,
whether certified or not, conform to
authentic original documents; and
(iv) all parties (other than the Company, NB
LLC, NBMI and the Selling Stockholders,
as to whom our opinion is expressed
below) to the documents reviewed by us
have full power and authority to
execute, deliver and perform their
obligations under such documents and
under the documents required or
permitted to be delivered and performed
thereunder, and all such documents have
been duly authorized by all necessary
action, have been duly executed by such
parties and have been duly delivered by
The Addressees Listed
on Annex A Hereto 3 October , 1999
---
such parties.
We are of the following opinion:
(i) 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;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares being delivered on the date hereof) have been duly and
validly authorized and issued and are fully paid and non-assessable; and the
Shares conform to the description of the Stock contained in the Prospectus;
(iii)The Company 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, except for any failures to be
so qualified or in good standing that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect (we have,
in respect of the opinion in this clause, relied upon certificates of
government officials in the relevant jurisdictions regarding the Company's
qualification as a foreign corporation and good standing and in respect of
matters of fact upon certificates of officers of the Company, and we believe
that both you and we are justified in relying upon such certificates);
(iv) NB LLC has been duly formed and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware; all
of the membership interests of NB LLC have been validly issued in accordance
with applicable law and the limited liability company agreement of NB LLC, and
are owned directly by the Company; NBMI has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of New York; all of the issued shares of capital stock of NBMI have been duly
and validly authorized and issued, are fully paid and non-assessable, and are
owned directly by the Company; and each of NB LLC and NBMI has been duly
qualified as a foreign corporation for the transaction of business and is in
The Addressees Listed
on Annex A Hereto 4 October , 1999
---
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, except for failures to be so qualified or in good standing
that, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect (we have, in respect of the opinion in this
clause, relied upon certificates of government officials in the relevant
jurisdictions regarding each of NB LLC's and NBMI's qualification as a
foreign corporation and good standing and in respect of matters of fact upon
certificates of officers of the Company, and we believe that both you and we
are justified in relying upon such certificates);
(v) To the best of our 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 that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect, would
adversely affect the issuance and sale of the Shares or would affect the
validity of the U.S. Underwriting Agreement, the International Underwriting
Agreement, the Exchange Agreement or the Stockholders Agreement; and, to the
best of such counsel's knowledge, no such proceedings are threatened by
governmental authorities or others;
(vi) The U.S. Underwriting Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by each of the
Company, NB LLC and NBMI; and each of the Company, NB LLC and NBMI has all
requisite corporate power and authority to perform its obligations under the
U.S. Underwriting Agreement and the International Underwriting Agreement and to
consummate the transactions contemplated thereby, including without limitation,
in the case of the Company, the corporate power and authority to issue, sell and
deliver the Shares as provided herein and therein;
(vii) Each of (A) the Exchange Agreement and (B) the Stockholders
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding obligation of, the Company (in the case of
(A) and (B)) and each of NB LLC and NBMI (in the case of (A)), enforceable
against such party 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 equity principles;
(viii) The issue and sale of the Shares being delivered on the date hereof
to be sold by the Company and the compliance by each of the Company, NB LLC and
NBMI with all of the provisions of the U.S. Underwriting Agreement, the
International Underwriting Agreement, the Exchange Agreement and the
Stockholders Agreement, as
The Addressees Listed
on Annex A Hereto 5 October , 1999
---
applicable, and the consummation of the transactions herein and therein
contemplated (a) 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 known to us to which the Company, NB LLC or NBMI or any of their
respective subsidiaries is a party or by which the Company, NB LLC or NBMI or
any of their respective subsidiaries is bound or to which any of the property
or assets of the Company, NB LLC or NBMI or any of their respective
subsidiaries is subject, (b) result in any violation of the provisions of the
Certificate of Incorporation or By-laws or other organizational documents of
the Company or NB LLC or NBMI, or (c) result in any violation of any New
York, Delaware corporate or United States federal statute, order, rule or
regulation (other than State securities or Blue Sky laws as to which we
express no opinion, and other than United States federal securities laws, as
to which we express no opinion except as otherwise specifically set forth
herein), or any order known to us of any New York, Delaware (insofar as
Delaware corporate law is concerned) or United States federal court or
governmental agency or body having jurisdiction over the Company, NB LLC or
NBMI or any of their respective subsidiaries or any of their properties,
except, in the case of clauses (a) and (c) above, any conflicts, breaches,
defaults or violations that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect or impair the
ability of the Company and its subsidiaries to perform their respective
obligations under, or consummate the transactions contemplated by, the U.S.
Underwriting Agreement, the International Underwriting Agreement, the
Exchange Agreement or the Stockholders Agreement, as applicable;
(ix) No consent, approval, authorization, order, registration or
qualification of or with any New York, Delaware (insofar as Delaware corporate
law is concerned) or United States federal court or governmental agency or body
is required for the issue and sale of the Shares or the consummation by the
Company or any of its subsidiaries of the transactions contemplated by the U.S.
Underwriting Agreement, the International Underwriting Agreement, the Exchange
Agreement or the Stockholders Agreement, except the registration under the Act
of the Shares and the registration under the Exchange Act of the Stock, and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the International
Underwriters;
The Addressees Listed
on Annex A Hereto 6 October , 1999
---
(x) 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, under the caption "United States Federal Tax
Considerations for Non-U.S. Holders" in the Prospectus relating to the
International Shares, and under the captions "Management", "Certain
Relationships and Related Transactions" and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are, in all material respects accurate and complete summaries or
descriptions thereof;
(xi) Consummation of the transactions contemplated by the U.S.
Underwriting Agreement, the International Underwriting Agreement or the Exchange
Agreement will not constitute an "assignment", within the meaning of such term
under the Advisers Act (and the rules and regulations thereunder) or the
Investment Company Act (and the rules and regulations thereunder);
(xii) We do not know of any contracts or other documents which are
required to be filed as exhibits to the Registration Statement by the Act or by
the rules and regulations thereunder which have not been filed as exhibits to
the Registration Statement;
(xiii) The Company is not required to be registered, licensed or qualified
as an investment adviser or a broker-dealer or as a commodity trading advisor, a
commodity pool operator or a futures commission merchant or any or all of the
foregoing, as applicable; each of the Company's subsidiaries that is required to
be registered as an investment adviser under the Advisers Act is so registered
(and such registration is in full force and effect), except for failures to be
so registered that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; each of the Company's subsidiaries
that is required to be registered as a broker-dealer under the Exchange Act is
so registered (and such registration is in full force and effect), except for
failures to be so registered that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; each of the Company's
subsidiaries that is required to be registered as a commodity trading advisor
and/or commodity pool operator under the Commodity Exchange Act (the "CEA") is
so registered (and such registration is in full force and effect), except for
failures to be so registered that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect; each of the Company's
subsidiaries that is required to be registered as a futures commission merchant
under the CEA is so registered (and such registration is in full force and
effect),
The Addressees Listed
on Annex A Hereto 7 October , 1999
---
except for failures to be so registered that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect;
each of the Company's subsidiaries has been duly registered, licensed or
qualified as an investment adviser or a broker-dealer or as a commodity trading
advisor, commodity pool operator or a futures commission merchant or any or all
of the foregoing, as applicable, in all jurisdictions in which the conduct of
its business requires such registration, licensing or qualification, except for
failures to be so registered, licensed or qualified that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect;
(xiv) Neither the Company nor any of its subsidiaries is and, after giving
effect to the offering and sale of the Shares, will be an "investment company"
or an entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act; and
(xv) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements, related notes and schedules and
other financial data therein, as to which we express no opinion) comply as to
form in all material respects with the requirements of the Act and the rules and
regulations thereunder.
In addition, we have participated in conferences with directors, officers
and other representatives of the Company, various of the Selling Stockholders,
representatives of the independent public accountants for the Company,
representatives of the Underwriters and representatives of counsel for the
Underwriters, at which conferences the contents of the Registration Statement
and the Prospectus and related matters were discussed, and, although we have not
independently verified and are not passing upon and assume no responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except to the extent specified in
paragraph (x), no facts have come to our attention which lead us to believe that
the Registration Statement, as of its effective date, (other than the financial
statements, related notes and schedules and other financial data, as to which we
express no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company prior to the date
hereof (other than the financial statements, related notes and schedules and
other financial data, as to which we express no opinion) contained an untrue
The Addressees Listed
on Annex A Hereto 8 October , 1999
---
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of the date
hereof, either the Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to the date hereof
(other than the financial statements, related notes and schedules and other
financial data, as to which we express no opinion) contains an untrue statement
of a material fact or omits 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.
The opinions expressed herein are limited to the federal laws of the
United States, the laws of the State of New York and the corporate law of the
state of Delaware, except for the opinions contained in clauses (iii) and
(iv), with respect to which we have relied on certificates of the respective
secretaries of state of California, Florida, Georgia, Illinois, Maryland,
Massachusetts, Missouri, New York, North Dakota, Ohio, Oklahoma and Texas as
to the qualification as a foreign corporation and good standing of the
Company, NB LLC and NBMI, as the case may be.
This opinion is delivered to you solely for the purposes referred to
above and may not be relied upon by any party other than you without our prior
written consent.
Very truly yours,
The Addressees Listed
on Annex A Hereto 9 October , 1999
---
ANNEX A
Xxxxxxx, Sachs & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc.,
Bear, Xxxxxxx & Co. Inc.,
CIBC World Markets Corp.,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
Xxxxxxxx & Co. Inc.,
As representatives of the several Underwriters
named in Schedule I to the U.S. Underwriting Agreement,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Sachs International,
Xxxxxxx Xxxxx International,
Xxxxxx Xxxxxxx & Co. International Limited,
Salomon Brothers International Limited,
Bear, Xxxxxxx International Limited,
CIBC World Markets International Limited,
Xxxxxxxxx, Lufkin & Xxxxxxxx International,
J. Xxxxx Xxxxxxxx & Co. Inc.,
As representatives of the several Underwriters
named in Schedule I to the International Underwriting Agreement,
c/o Goldman Xxxxx International,
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx.
Xxxxxxx, Sachs & Co.,
As Independent Underwriter,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Annex II(C)
October , 1999
To Each of the Addressees
Listed in Annex A Hereto
-------------------------
Xxxxxxxxx Xxxxxx Inc.
---------------------
Ladies and Gentlemen:
We have acted as counsel to the Selling Stockholders, as named in
the Underwriting Agreement (U.S. Version), dated October , 1999 (the "U.S.
Underwriting Agreement"), among such Selling Stockholders, Xxxxxxxxx Xxxxxx
Inc., a Delaware corporation (the "Company"), Xxxxxxxxx Xxxxxx, LLC, a
Delaware limited liability company ("NB LLC"), Xxxxxxxxx Xxxxxx Management
Inc., a New York corporation ("NBMI") and the Underwriters named therein, in
connection with the sale by the Selling Stockholders of an aggregate of (1)
3,637,670 shares (the "U.S. Shares") and, at the election of the
Underwriters, up to 937,500 additional shares (the "Optional U.S. Shares") of
the Company's Common Stock, par value $.01 per share ("Common Stock"),
pursuant to the U.S. Underwriting Agreement, and (2) 582,027 shares (the
"International Shares") and, at the election of the Underwriters, up to
150,000 additional shares of Common Stock (the "Optional International
Shares") ( together with the U.S. Shares, the U.S. Optional Shares and the
U.S. International Shares, the "Shares") to the Underwriters named in the
Underwriting Agreement (International Version), dated October , 1999 (the
"International Underwriting Agreement'), among the Company, NB LLC, NBMI, the
Selling Stockholders named therein and the Underwriters named therein,
pursuant to the International Underwriting Agreement.
This opinion is being delivered to you pursuant to Section 8(f) of the
U.S. Underwriting Agreement. Capitalized terms not otherwise defined herein have
the meanings given in the U.S. Underwriting Agreement.
We have examined and relied upon the representations and warranties as
to factual matters made in or pursuant to the U.S. Underwriting Agreement and
other documents prepared in connection therewith, and upon the originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
records, certificates and other
The Addressees Listed 3
on Annex A Hereto October , 1999
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed herein. Additionally, with your permission, we have
assumed, without any investigation or independent verification, that:
(i) the signatures on all documents examined by us are
genuine;
(ii) all documents submitted to us as originals or
duplicate originals are authentic;
(iii) all documents submitted to us as copies, whether
certified or not, conform to authentic original
documents; and
(iv) all parties (other than the Company, NB LLC, NBMI
and the Selling Stockholders, as to whom our
opinion is expressed below) to the documents
reviewed by us have full power and authority to
execute, deliver and perform their obligations
under such documents and under the documents
required or permitted to be delivered and performed
thereunder, and all such documents have been duly
authorized by all necessary action, have been duly
executed by such parties and have been duly
delivered by such parties.
We are of the following opinion:
i. A Power of Attorney, the Exchange Agreement and the
Stockholders Agreement have been duly executed and delivered by
each Selling Stockholder and constitute valid and legally binding
agreements of such Selling Stockholder in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
ii. The U.S. Underwriting Agreement and the International
Underwriting
The Addressees Listed 4
on Annex A Hereto October , 1999
Agreement have been duly executed and delivered by or on behalf of
each Selling Stockholder; and the sale of the Shares to be sold by
such Selling Stockholder thereunder and the compliance by such
Selling Stockholder with all of the provisions of the U.S.
Underwriting Agreement, the International Underwriting Agreement,
the Exchange Agreement, the Stockholders Agreement and the Power
of Attorney and the consummation of the transactions therein
contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to us 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 and that is material to such
Selling Stockholder, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws
or other organizational documents, as applicable, of such Selling
Stockholder or any rule or regulation (other than State securities
or Blue Sky laws as to which we express no opinion, and other than
United States federal securities laws, as to which we express no
opinion except as otherwise specifically set forth therein) or any
order known to us of any New York, Delaware (insofar as Delaware
corporate law is concerned) or United States federal court,
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
iii. No consent, approval, authorization or order of any New York,
Delaware (insofar as Delaware corporate law is concerned) or
United States federal court or governmental agency or body is
required for the consummation of the transactions contemplated by
the U.S. Underwriting Agreement, the International Underwriting
Agreement, the Exchange Agreement or the Stockholders Agreement in
connection with the Shares to be sold by such Selling Stockholder
thereunder, except those which have been duly obtained and are in
full force and effect, the registration of the Shares under the
Act, the registration of the Stock under the Exchange Act and such
as may be required under foreign or state securities or Blue Sky
The Addressees Listed 5
on Annex A Hereto October , 1999
laws in connection with the purchase and distribution of such
Shares by the Underwriters or the International Underwriters; and
iv. Upon (i) payment for the Shares to be sold by the Selling
Stockholders in accordance with the U.S. Underwriting Agreement
and the International Underwriting Agreement, (ii) registration of
the transfer of such Shares to, and registration of such Shares in
the name of, Cede & Co. or other nominee designated by DTC and
(iii) the crediting of such Shares to the accounts maintained by
DTC for the several Underwriters, assuming that such accounts are
"securities accounts" (as defined in Section 8-501 of the UCC),
(A) the Underwriters will acquire "security entitlements" (as
defined in Section 8-102 of the UCC) in respect of such Shares and
(B) no action based on an "adverse claim" (as defined in Section
8-102 of the UCC) to such Shares may be asserted against the
Underwriters with respect to such security entitlements, assuming
that each Underwriter does not have "notice" (within the meaning
of Section 8-105 of the UCC) of any "adverse claim" (as defined in
Section 8-102 of the UCC) to such Shares.
The opinions expressed herein are limited to the federal laws of the
United States, the laws of the State of New York and the corporate law of the
state of Delaware.
This opinion is delivered to you solely for the purposes referred to
above and may not be relied upon by any party other than you without our prior
written consent.
Very truly yours,
ANNEX A
Xxxxxxx, Sachs & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc.,
Bear, Xxxxxxx & Co. Inc.,
CIBC World Markets Corp.,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
Xxxxxxxx & Co. Inc.,
As representatives of the several Underwriters
named in Schedule I to the U.S. Underwriting Agreement,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Sachs International,
Xxxxxxx Xxxxx International,
Xxxxxx Xxxxxxx & Co. International Limited,
Salomon Brothers International Limited,
Bear, Xxxxxxx International Limited,
CIBC World Markets International Limited,
Xxxxxxxxx, Lufkin & Xxxxxxxx International,
J. Xxxxx Xxxxxxxx & Co. Inc.,
As representatives of the several Underwriters
named in Schedule I to the International Underwriting Agreement,
c/o Goldman Xxxxx International,
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx.
Xxxxxxx, Sachs & Co.,
As Independent Underwriter,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Annex III
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ADVISERS MANAGERS TRUST
AMT Balanced Investments
AMT Growth Investments
AMT Guardian Investments
AMT International Investments
AMT Limited Maturity Bond Investments
AMT Liquid Asset Investments
AMT Mid-Cap Growth Investments
AMT Partners Investments
AMT Socially Responsive Investments
XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST
Balanced Portfolio
Growth Portfolio
Guardian Portfolio
International Portfolio
Limited Maturity Bond Portfolio
Liquid Asset Portfolio
Mid-Cap Growth Portfolio
Partners Portfolio
Socially Responsive Portfolio
