Exhibit 1.1
[_________] SHARES
THE YANKEE CANDLE COMPANY, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[_______], 2002
CREDIT SUISSE FIRST BOSTON CORPORATION,
As Representative of the Several Underwriters,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000
Dear Sirs:
1. INTRODUCTORY. The stockholders listed in Schedule A hereto ("SELLING
STOCKHOLDERS") propose severally to sell an aggregate of outstanding
shares ("FIRM SECURITIES") of the Common Stock, $0.01 par value ("SECURITIES")
of The Yankee Candle Company, Inc., a Massachusetts corporation ("COMPANY"),
and the Selling Stockholders also propose to sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than additional
outstanding shares ("OPTIONAL SECURITIES") of the Company's Securities as set
forth below. The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES". The Selling Stockholders hereby
agree with the Company and with the several Underwriters named in Schedule B
hereto ("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. (a) The Company represents and warrants to, and agrees with,
the several Underwriters that:
(i) A registration statement (No. 333- ) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (A) has been
declared effective under the Securities Act of 1933, as amended, ("ACT")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement (the
"INITIAL REGISTRATION STATEMENT") has been declared effective, either (A)
an additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule
462(b) and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it, and
if any post-effective amendment to either such registration statement has
been filed with the Commission
prior to the execution and delivery of this Agreement, the most recent
amendment (if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing pursuant
to Rule 462(c) ("RULE 462(C)") under the Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of this
Agreement, "EFFECTIVE TIME" with respect to the initial registration
statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (A) if the Company
has advised the Representative that it does not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any)
filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing pursuant
to Rule 462(c), or (B) if the Company has advised the Representative that
it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the Representative
that it proposes to file one, "EFFECTIVE TIME" with respect to such
additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material incorporated by
reference therein, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter
referred to as the "INITIAL REGISTRATION STATEMENT". The additional
registration statement (if any), as amended at its Effective Time,
including the contents of the initial registration statement incorporated
by reference therein and including all information (if any) deemed to be a
part of the additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL
REGISTRATION STATEMENT". The Initial Registration Statement and the
Additional Registration Statement are hereinafter referred to collectively
as the "REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities, as
first filed with the Commission pursuant to and in accordance with Rule
424(b) ("RULE 424(b)") under the Act or (if no such filing is required) as
included in a Registration Statement, including all material incorporated
by reference in such prospectus, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include 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, (B) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material
respects to the requirements of the Act and the Rules and Regulations and
did not include, or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration Statement
and the Prospectus will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material
fact or omits, or will omit, to state any material
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fact required to be stated therein or necessary to make the statements
therein not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement:
on the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(d) hereof.
(iii) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(iv) The Company does not have any significant subsidiaries within
the meaning of Regulation S-X under the Act.
(v) This Agreement has been duly authorized, executed and delivered
by the Company.
(vi) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus under
the caption "Description of Capital Stock".
(vii) The Securities (including the Offered Securities to be sold by
the Selling Stockholders, other than the Offered Securities issuable upon
the exercise of Options, as defined below) have been duly authorized and
are validly issued, fully paid and non-assessable.
(viii) The Offered Securities issuable upon the exercise of options
to be exercised by certain of the Selling Stockholders (the "OPTIONS")
will be issued pursuant to the Stock Option Agreements which have been
entered into by the Company and such Selling Stockholders (the "OPTION
AGREEMENTS"); the Option Agreements were duly authorized, executed and
delivered by the Company and constitute valid and binding instruments
enforceable against the Company in accordance with their terms subject, as
to the enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Options and the Option
Agreements conform in all material respects to the descriptions thereof in
the Prospectus.
(ix) The unissued Offered Securities issuable upon the exercise of
the Options have been duly and validly authorized and reserved for
issuance, and at the time such Offered Securities are to be sold by the
Selling Stockholders, such Offered Securities will have been delivered in
accordance with the provisions of the Option Agreements and will be duly
and validly issued, fully paid and non-assessable and will conform in all
material respects to the description thereof in the Prospectus.
(x) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable law or the Articles of
Organization or By-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body,
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agency or court having jurisdiction over the Company or any subsidiary,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except for the
registration under the Act of the Offered Securities and such consents,
approvals, authorizations, registrations or qualifications as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
(xi) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(xii) Other than as set forth in the Registration Statements or the
Prospectus, there are no legal or governmental proceedings pending or, to
the Company's knowledge, threatened to which the Company is a party or to
which any of the properties of the Company is subject that are required to
be described in the Registration Statements or the Prospectus and are not
so described, and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statements
or the Prospectus or to be filed as exhibits to the Registration
Statements that are not described or filed as required.
(xiii) Each preliminary prospectus filed as part of a Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act and the applicable rules and regulations of
the Commission thereunder.
(xiv) The Company is not required to be registered as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(xv) The Company has good and marketable title in fee simple to all
real property owned by it and good and marketable title to all personal
property owned by it which is material to the business of the Company, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company; and any real
property and buildings held under lease by the Company are held by it
under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company, in each case except as
described in or contemplated by the Prospectus.
(xvi) The Company owns or possesses, or can acquire on reasonable
terms, all material 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 currently employed
by it in connection with the business now operated by it, and the Company
has not received any notice of infringement of or conflict with asserted
rights of others with respect to any of the foregoing which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole.
(xvii) No material labor dispute with the employees of the Company
exists, except as described in or contemplated by the Prospectus, or, to
the knowledge of the Company, is imminent.
(xviii) Except as described in or contemplated by the Prospectus,
the Company is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and
customary in the businesses in which it is engaged.
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(xix) Except as described in the Prospectus, the Company possesses
all certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct its
business, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole.
(xx) Except as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), the Company has not sold, issued or distributed any Securities
during the six-month period preceding the date hereof, including any sales
pursuant to Rule 144A under, or Regulation D or S of, the Act, other than
shares issued pursuant to employee benefit plans, qualified stock option
plans or other employee compensation plans or pursuant to outstanding
options, rights or warrants.
(xxi) Deloitte & Touche LLP and Ernst & Young LLP, each of whom have
certified certain financial statements of the Company and its
subsidiaries, are each independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
(xxii) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(xxiii) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities
to third parties) which would, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(xxiv) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any Securities or to
require the Company to include any such Securities with the Offered
Securities registered pursuant to the Registration Statements.
(xxv) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment.
(b) Each Selling Stockholder severally represents and warrants to,
and agrees with, the several Underwriters that:
(i) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder.
(ii) The execution and delivery by such Selling Stockholder of, and
the performance by such Selling Stockholder of its obligations under, this
Agreement, the Custody Agreement
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signed by such Selling Stockholder and Equiserve Trust Company, N.A., as
Custodian, relating to the deposit of the Offered Securities to be sold by
such Selling Stockholder (the "CUSTODY AGREEMENT") and the Power of
Attorney appointing certain individuals as such Selling Stockholder's
attorneys-in-fact (the "ATTORNEYS-IN-FACT") to the extent set forth
therein, relating to the transactions contemplated hereby and by the
Registration Statements (the "POWER OF ATTORNEY") will not contravene any
provision of applicable law, or the certificate of incorporation or
by-laws of such Selling Stockholder (if such Selling Stockholder is a
corporation), or the partnership agreement or articles of partnership of
such Selling Stockholder (if such Selling Stockholder is a partnership),
or any agreement or other instrument binding upon such Selling Stockholder
or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement or the Custody
Agreement or Power of Attorney of such Selling Stockholder, except for the
registration under the Act of the Offered Securities and such consents,
approvals, authorizations, registrations or qualifications as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
(iii) Certificates in negotiable form representing the Offered
Securities to be sold by such Selling Stockholder hereunder other than any
such Offered Securities to be issued upon the exercise of Options, have
been, and, with respect to each of the Selling Stockholders who is selling
Offered Securities on the exercise of Options, duly completed and executed
irrevocable Option exercise notices, in the forms specified by the
relevant Option Agreement, with respect to all of the Offered Securities
to be sold by such Selling Stockholder hereunder which are not represented
by certificates have been, placed in custody under the Custody Agreement.
(iv) The Offered Securities represented by the certificates or the
irrevocable Option exercise notice, in either case held in custody for
such Selling Stockholder under the Custody Agreement, are subject to the
interests of the Underwriters hereunder, and the arrangements made by such
Selling Stockholders for such custody, and the appointment by such Selling
Stockholder of the Attorneys-in-fact by the Power of Attorney, are to that
extent irrevocable. Each of the Selling Stockholders specifically agrees
that 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 or corporation, by
the dissolution of such partnership or corporation, 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 or
corporation should be dissolved, or if any other such event should occur,
before the delivery of the Offered Securities hereunder, certificates
representing the Offered Securities or the irrevocable Option exercise
notice shall be delivered by or on behalf of such Selling Stockholder in
accordance with the terms and conditions of this Agreement and of the
Custody Agreement, and actions taken by the Attorneys-in-fact pursuant to
the Power 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 Attorneys-in-fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution
or other event.
(v) On the Closing Date, such Selling Stockholder will have, (a)
valid title to the Offered Securities (other than those Offered
Securities, if any, to be issued upon exercise of Options) to be sold by
such Selling Stockholder, (b) valid title to the Options, if any, to be
exercised in respect of such number of Offered Securities to be sold by
such Selling Stockholder, (c) assuming due issuance by the Company of any
such Offered Securities to be issued upon exercise of Options, valid title
to such Offered Securities issued upon exercise of such Options to be sold
by such Selling Stockholder and (d) the legal right and power, and all
authorization and approval required by law, to enter into this Agreement,
the Custody Agreement and the Power of
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Attorney and to sell, transfer and deliver all Offered Securities to be
sold by such Selling Stockholder.
(vi) The Custody Agreement and Power of Attorney have been duly
authorized, executed and delivered by such Selling Stockholder and are
valid and binding agreements of such Selling Stockholder.
(vii) Immediately prior to the Closing, such Selling Stockholder
will have good and valid title to the Offered Securities to be sold by
such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims, except for those arising under this
Agreement, the Custody Agreement and the Power of Attorney; and, upon
payment therefor and the delivery to the Depositary Trust Company ("DTC")
or its agent of the Offered Securities registered in the name of Cede &
Co. or such other nominee designated by DTC, both as provided for herein,
and the crediting of the Offered Securities to the Underwriters' accounts
with DTC, Cede & Co. or such other nominee designated by DTC will be a
"protected purchaser" of the Offered Securities (as defined in Section
8-303 of the Uniform Commercial Code as in effect in the State of New York
(the "UCC")), the Underwriters will acquire a valid "security entitlement"
(within the meaning of Section 8-501 of the UCC) to the Offered
Securities, and no action based on an "adverse claim" (as defined in
Section 8-102 of the UCC) may be asserted against the Underwriters with
respect to such security entitlement (assuming that the Underwriters are
without notice of any such adverse claim).
(viii) To the extent that any statements or omissions made in a
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 such
Selling Stockholder expressly for use therein, such preliminary prospectus
and the Registration Statements did, and the Prospectus and any further
amendments or supplements to the Registration Statements 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) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder,
at a purchase price of $ per share, that number of Firm Securities
(rounded up or down, as determined by Credit Suisse First Boston Corporation
("CSFBC") in its discretion, in order to avoid fractions) obtained by
multiplying the number of Firm Securities set forth opposite the name of such
Selling Stockholder in Schedule A hereto by a fraction the numerator of which
is the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which is the total
number of Firm Securities.
The Custodian will deliver the Firm Securities to the Representative for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to
an account at a bank acceptable to CSFBC drawn to the order of [________] at
the office of , at 10:00 A.M., New York time, on , or at such other
time not later than seven full business days thereafter as CSFBC determines,
such time being herein referred to as the "FIRST CLOSING DATE". The
certificates for the Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as CSFBC requests
and will be made available for checking and packaging at the above office at
least 24 hours prior to the First Closing Date.
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In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholders agree, severally and not jointly, to
sell to the Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholders in Schedule A hereto under the caption
"Number of Optional Securities to be Sold" and the denominator of which is the
total number of Optional Securities (subject to adjustment by CSFBC to eliminate
fractions). Such Optional Securities shall be purchased from each Selling
Stockholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Selling
Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the
First Closing Date (the First Closing Date and each Optional Closing Date, if
any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
CSFBC but shall be not later than ten full business days after written notice
of election to purchase Optional Securities is given. The Custodian will
deliver the Optional Securities being purchased on each Optional Closing Date
to the Representative for the accounts of the several Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFBC
drawn to the order of , at the above office. The certificates for the
Optional Securities being purchased on each Optional Closing Date will be in
definitive form, in such denominations and registered in such names as CSFBC
requests upon reasonable notice prior to such Optional Closing Date and will
be made available for checking and packaging at the above office at a
reasonable time in advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. (a)
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant
to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has
not occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at
such later date as shall have been consented to by CSFBC.
(ii) Upon delivery to the Company of the irrevocable Option exercise
notices referred to in Section 2 hereof and the receipt of the appropriate
instructions from the Attorneys-
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in-fact, to issue the Offered Securities relating thereto in accordance
with the provisions of the applicable Option Agreement, and,
notwithstanding any other provision of such Option Agreement, to deliver
the Offered Securities to the Representative as contemplated in the
Custody Agreement.
(iii) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement
as filed or the related prospectus or the Initial Registration Statement,
the Additional Registration Statement (if any) or the Prospectus and will
not effect such amendment or supplementation without CSFBC's consent (not
to be unreasonably withheld); and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(iv) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs 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
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, and furnish to the Underwriters and the dealers (whose names
and addresses the Representative will furnish to the Company) to which
Offered Securities may have been sold by the Representative on behalf of
the Underwriters and to any other dealers upon request, at its own
expense, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither
CSFBC's consent to, nor the Underwriters' delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions set forth
in Section 6.
(v) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(vi) The Company will furnish to the Representative copies of each
Registration Statement (three of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC reasonably requests. The Prospectus shall
be so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Company will pay
the expenses of printing and distributing to the Underwriters all such
documents
(vii) The Company will endeavor to arrange for the qualification of
the Offered Securities for sale under the laws of such jurisdictions as
CSFBC reasonably requests and continue such qualifications in effect so
long as required for the distribution.
9
(viii) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC. The foregoing sentence shall not apply to: (A) the Offered
Securities to be sold hereunder; (B) the issuance of Securities upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof of which the Underwriters have been advised
in writing; and (C) the granting of stock options and/or restricted stock
units pursuant to the Company's existing employee benefit plans (provided
such options do not become exercisable and the units do not vest during
such 90-day period) and to directors in connection with their initial
appointment to the Company's board of directors.
(ix) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel, and the Company's accountants in connection with
the registration and delivery of the Offered Securities under the Act and
all other fees or expenses in connection with the preparation and filing
of the Registration Statements, any preliminary prospectus, the Prospectus
and amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the transfer
and delivery of the Offered Securities to the Underwriters, including any
transfer or other taxes payable thereon, except as provided below, (iii)
the cost of printing or producing any Blue Sky or Legal Investment
memorandum in connection with the offer and sale of the Offered Securities
under state securities laws and all expenses in connection with the
qualification of the Offered Securities for offer and sale under state
securities laws as provided herein, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or
Legal Investment memorandum, (iv) all filing fees and the reasonable fees
and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Offered
Securities by the National Association of Securities Dealers, Inc., (v)
the cost of printing certificates representing the Offered Securities,
(vi) the costs and charges of any transfer agent, registrar or depositary,
(viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Offered Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the Company,
travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered
in connection with the road show, (ix) all fees, disbursements and
expenses of one counsel for the Selling Stockholders selected by the FL
Stockholders (which counsel may be counsel to the Company), (x) all other
costs and expenses incident to the performance of the Company's or the
Selling Stockholders' obligations hereunder for which provision is not
otherwise made in this Section 5. In connection with clause (ii) of the
preceding sentence, CSFBC agrees to pay New York State stock transfer tax,
and the Company agrees to reimburse CSFBC 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 except as
provided in this Section, Section 7 entitled "Indemnification and
Contribution", and Section 9, below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Offered
Securities by them and any advertising expenses connected with any offers
they may make.
(b) Each Selling Stockholder agrees with the several Underwriters
and the Company as follows:
10
(i) Each Selling Stockholder agrees, for a period of 90 days after
the date of the initial public offering of the Offered Securities, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any shares
of Securities, enter into a transaction which would have the same effect,
or enter into any swap, hedge or other arrangement that transfers, in
whole or part, any of the economic consequences of ownership of the
Securities, whether any such aforementioned transaction is to be settled
by delivery of the Securities or such other securities, in cash or
otherwise, or publicly disclose the intention to make any such offer,
sale, pledge or disposition, or enter into any such transaction, swap,
hedge or other arrangement, without, in each case, the prior written
consent of CSFBC. The foregoing sentence shall not apply to: (A) the
Offered Securities to be sold hereunder; and (B) transactions relating to
Securities or other securities acquired in open market transactions after
the completion of the offering of the Offered Securities.
(ii) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, each Selling Stockholder
shall pay or cause to be paid any fees, disbursements and expenses of
counsel for such Selling Stockholder other than as specified in clause
(ix) of paragraph (a) above.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of Deloitte & Touche LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules examined
by them and included in the Registration Statements comply as to form in
all material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on the unaudited financial statements
included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles;
11
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of such letter, there was any
change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of the
previous year, in consolidated net sales or net operating income in
the total or per share amounts of consolidated income before
extraordinary items or net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration Statement
is subsequent to such execution and delivery, "REGISTRATION STATEMENTS" shall
mean the Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective Time, and
(iii) "PROSPECTUS" shall mean the prospectus included in the Registration
Statements. All financial statements included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or such later date as shall have been consented to by CSFBC. If
the Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later that 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, the time the Prospectus is printed and distributed to
any Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company or the
Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition, financial or otherwise,
earnings, business or operations of the Company and its subsidiaries, taken as a
12
whole, which, in the judgment of a majority in interest of the Underwriters
including the Representative, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any change in U.S.
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a majority in
interest of the Underwriters including the Representative, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Offered Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the over-the-counter market;
(v) any banking moratorium declared by U.S. Federal or any other relevant state
authorities; (vi) any major disruption of settlements of securities or clearance
services in the United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any declaration of
war by Congress or any other national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters including the
Representative, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(d) The Representative shall have received an opinion, dated such
Closing Date, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for
the Company, to the effect that:
(i) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable law of the State of New York or
the Federal laws of the United States (other than state securities or blue
sky laws) or, to the best of such counsel's knowledge, any agreement or
other instrument binding upon the Company or any of its subsidiaries which
has been identified to such counsel in a certificate provided by the Chief
Financial Officer of the Company as material to the Company and its
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree which has been identified to such
counsel in a certificate provided by the Chief Financial Officer of the
Company of any governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this
Agreement, except those that have been made or obtained, and such
consents, approvals, authorizations, registrations or qualifications as
may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities by the
Underwriters;
(ii) the statements in the Prospectus under the caption "United
States Federal Tax Considerations for Non-United States Holders" fairly
summarize in all material respects the matters referred to therein;
(iii) such counsel does not know of any legal or governmental
proceedings pending to which the Company is a party that are required to
be described in the Registration Statements or the Prospectus and are not
so described;
(iv) the Company is not required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended;
(v) such counsel (A) is of the opinion that the Registration
Statements and Prospectus (except for the materials incorporated by
reference therein, and financial statements and schedules and other
financial and statistical data included therein as to which such counsel
need not express any opinion), as of their respective effective or filing
dates, appear on their face
13
to be responsive as to form in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder, (B) has no
reason to believe that (except for financial statements and schedules and
other financial and statistical data as to which such counsel need not
express any opinion or belief) the Registration Statements and the
Prospectus included therein at the time the Registration Statement became
effective contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading and (C) has no reason to believe
that (except for financial statements and schedules and other financial
and statistical data as to which such counsel need not express any opinion
or belief) the Prospectus contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(vi) this Agreement has been duly executed and delivered by the
Company; and
(vii) the Option Agreements constitute valid and binding instruments
enforceable against the Company in accordance with their terms subject, as
to enforcement, to (A) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws affecting creditors'
rights generally and (B) general principles of equity (whether considered
in a proceeding at law or in equity).
(e) The Representative shall have received an opinion, dated such
Closing Date, of Xxxx and Xxxx LLP, special Massachusetts counsel for the
Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction listed on an exhibit to such opinion, which, to such
counsel's knowledge, constitute the only jurisdictions in the United
States in which the Company owns or leases real property, except to the
extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) the Securities to be sold by the Selling Stockholders, other
than the Offered Securities issuable upon the exercise of Options, have
been duly authorized and are validly issued, fully paid and
non-assessable;
(iii) this Agreement has been duly authorized by the Company;
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of the Articles of Organization or By-laws of
the Company;
(v) the statements in the Prospectus under the caption "Description
of Capital Stock," insofar as such statements constitute summaries of the
documents referred to therein, fairly summarize the documents referred to
therein;
(vi) the statements in the Registration Statements in Item 15 state
the general effect of the Articles of Organization, indemnity agreements
and Underwriting Agreement referred to therein as required in Item 702 of
Regulation S-K under the Act;
(vii) the Options have been duly authorized and granted pursuant to
the Option Agreements and constitute valid and binding obligations of the
Company, and the Option Agreements have been duly authorized, executed and
delivered by the Company;
14
(viii) the Securities issuable upon the exercise of the Options have
been duly and validly authorized and reserved for issuance, and, if issued
in accordance with the terms of the Options, at the time such Securities
are to be sold by the Selling Stockholders, such Securities will be duly
and validly issued, fully paid and non-assessable; and
(ix) the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained
in the Prospectus under the caption "Description of Capital Stock."
(f) The Representative shall have received an opinion, dated such
Closing Date, of Xxxxx Xxxxxx, Xx., Vice President and General Counsel of the
Company, to the effect that:
(i) the Company has good and marketable title in fee simple to all
real property owned by it and good and marketable title to all personal
property owned by it which is material to the business of the Company, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company; and any real
property and buildings held under lease by the Company are held by it
under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company, in each case except as
described in or contemplated by the Prospectus;
(ii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which any of the
properties of the Company is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described; and
(iii) the documents incorporated by reference in the Registration
Statements and Prospectus (except for financial statements and schedules
and other financial and statistical data included therein as to which such
counsel need not express any opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Securities
Exchange Act of 1934, as amended, as applicable, and the applicable rules
and regulations of the Commission thereunder.
(g) The Representative shall have received an opinion, dated such
Closing Date, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for
each of Forstmann Little & Co. Equity Partnership-V, L.P. and Forstmann Little &
Co. Subordinated Debt and Equity Management Buyout Partnership-VI, L.P. (the "FL
STOCKHOLDERS"), to the effect that:
(i) this Agreement has been duly authorized, executed and delivered
by or on behalf of each of the FL Stockholders;
(ii) the execution and delivery by each FL Stockholder of, and the
performance by such FL Stockholder of its obligations under, this
Agreement and the Custody Agreement and Power of Attorney of such FL
Stockholder will not contravene any provision of applicable law of the
State of New York, the Delaware Revised Uniform Limited Partnership Act,
as amended, and the Federal laws of the United States (other than state
securities or blue sky laws) or the partnership agreement of such FL
Stockholder, or, to the best of such counsel's knowledge, any agreement or
other instrument identified to such counsel in a certificate provided by a
general partner of such FL Stockholder, binding upon such FL Stockholder
or, to the best of such counsel's knowledge, any judgment, order or decree
identified to such counsel in a certificate provided by a general partner
of such FL Stockholder, of any governmental body, agency or court having
jurisdiction over such FL Stockholder, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by such FL Stockholder of its
obligations under this Agreement or the Custody Agreement or Power of
Attorney of such FL Stockholder, except those that have been made or
obtained, and such
15
consents, approvals, authorizations, registrations or qualifications as
may be required by the securities or Blue Sky laws of the various states
in connection with offer and sale of the Offered Securities;
(iii) the Custody Agreement and the Power of Attorney of each FL
Stockholder have been duly authorized, executed and delivered by such FL
Stockholder and are valid and binding agreements of such FL Stockholder in
accordance with their terms, subject as to enforcement, to (A) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws affecting creditors' rights generally and (B) general
principles of equity, including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable
defense and limits as to the availability of equitable remedies (whether
considered in a proceeding at law or in equity); and
(iv) immediately prior to the Closing, the FL Stockholders will have
good and valid title to the Firm Securities to be sold by the FL
Stockholders hereunder, free and clear of all liens, encumbrances,
equities or claims, except for those arising under this Agreement, the
Custody Agreement and the Power of Attorney; and, upon payment therefor
and the delivery to DTC or its agent of such Firm Securities registered in
the name of Cede & Co. or such other nominee designated by DTC, both as
provided for herein, and the crediting of such Firm Securities to the
Underwriters' accounts with DTC, Cede & Co. or such other nominee
designated by DTC will be a "protected purchaser" (as defined in Section
8-303 of the UCC) of the Firm Securities, the Underwriters will acquire a
valid "security entitlement" (within the meaning of Section 8-501 of the
UCC) to the Shares, and no action based on an "adverse claim" (as defined
in Section 8-102 of the UCC) may be asserted against the Underwriters with
respect to such security entitlement (assuming that the Underwriters are
without notice of any such adverse claim).
(h) The Representative shall have received an opinion, dated such
Closing Date, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for
each of the Selling Stockholders other than the FL Stockholders (the "OTHER
STOCKHOLDERS"), to the effect that:
(i) this Agreement has been duly executed and delivered by or on
behalf of each of the Other Stockholders;
(ii) the Custody Agreement and the Power of Attorney of each Other
Stockholder have been duly executed and delivered by such Other
Stockholder and are valid and binding agreements of such Other Stockholder
in accordance with their terms, subject as to enforcement, to (i)
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting creditors' rights generally and
(ii) general principles of equity, including, without limitation,
standards of materiality, good faith, fair dealing and reasonableness,
equitable defense and limits as to the availability of equitable remedies
(whether considered in a proceeding at law or in equity); and
(iii) immediately prior to the Closing, the Other Stockholders will
have good and valid title to the Firm Securities to be sold by the Other
Stockholders hereunder, free and clear of all liens, encumbrances,
equities or claims, except for those arising under this Agreement, the
Custody Agreement and the Power of Attorney; and, upon payment therefor
and the delivery to DTC or its agent of such Firm Securities registered in
the name of Cede & Co. or such other nominee designated by DTC, both as
provided for herein, and the crediting of the Firm Securities to the
Underwriters' accounts with DTC, Cede & Co. or such other nominee
designated by DTC will be a "protected purchaser" (as defined in Section
8-303 of the UCC) of such Firm Securities, the Underwriters will acquire a
valid "security entitlement" (within the meaning of Section 8-501 of the
UCC) to such Firm Securities, and no action based on an "adverse claim"
(as defined in Section 8-102 of the UCC) may be asserted against the
Underwriters with respect to such security entitlement (assuming that the
Underwriters are without notice of any such adverse claim).
16
(i) The Representative shall have received from Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the Registration Statements, the Prospectus and other
related matters as the Representative may require, and the Selling Stockholders
and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such matters.
(j) With respect to Sections 6(d)(vi) above, Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statements and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified. With respect to Sections 6(g) and 6(h) above, Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx may rely, with respect to factual matters and to the extent
such counsel deems appropriate, upon the representations of each Selling
Stockholder contained herein and in the Custody Agreement and Power of Attorney
of such Selling Stockholder and in other documents and instruments; provided
that copies of such Custody Agreements and Power of Attorney and of any such
other documents and instruments shall be delivered to you and shall be in form
and substance satisfactory to your counsel.
(k) The Representative shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; and the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) or Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any underwriter
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition,
financial or otherwise, earnings, business, or operations of the Company and its
subsidiaries, taken as a whole, except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(l) The Representative shall have received a certificate, dated such
Closing Date, and signed by each Selling Stockholder (or by its Attorney-in-fact
on its behalf) that the representations and warranties of such Selling
Stockholder contained in this Agreement are true and correct as of the Closing
Date and that such Selling Stockholder has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date.
(m) The Representative shall have received a letter, dated such
Closing Date, of which meets the requirements of subsection (a) of this Section,
except that the specified date referred to in such subsection will be a date not
more than three days prior to such Closing Date for the purposes of this
subsection.
(n) The Custodian will deliver to CSFBC a letter stating that they
will deliver to each Selling Stockholder a United States Treasury Department
Form 1099 (or other applicable form or statement specified by the United States
Treasury Department regulations in lieu thereof) on or before January 31 of the
year following the date of this Agreement.
(o) The "lock-up" agreements, each substantially in the form
provided by the Representative, by certain officers and directors of the Company
who are not selling Securities in the offering relating to sales and certain
other dispositions of Securities or certain other securities, delivered to the
Representative on or before the date hereof, shall be in full force and effect
on the Closing Date.
The Selling Stockholders and the Company will furnish the Representative with
such conformed copies of such opinions, certificates, letters and documents as
the Representative reasonably requests. CSFBC may
17
in its sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, 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 for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will 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 in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in subsection (d) below; and provided, further,
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary prospectus or prospectus
supplement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the Offered Securities concerned, to
the extent that a prospectus or prospectus supplement relating to such Offered
Securities was required to be delivered by such Underwriter under the Act in
connection with such purchase and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the prospectus or prospectus supplement
(exclusive of material incorporated by reference) if the Company had previously
furnished copies thereof to such Underwriter.
(b) Each of the FL Stockholders, severally in proportion to the
number of Offered Securities to be sold by such FL Stockholder hereunder, will
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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 for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the FL Stockholders will 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 in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company (i) by an Underwriter through
the Representative specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (d) below, or (ii) by any Other
Stockholder for use in the preparation of the answers in the Registration
Statements or the Prospectus to Item 7 of Form S-3; and provided, further, that
with respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from any preliminary prospectus or prospectus supplement,
the indemnity agreement contained in this subsection (b) shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased the Offered Securities concerned, to the extent
that a prospectus or prospectus supplement relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim,
18
damage or liability of such Underwriter results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Offered Securities to such person, a copy of the prospectus or
prospectus supplement (exclusive of material incorporated by reference) if the
Company had previously furnished copies thereof to such Underwriter; and
provided further, however, that with respect to any amount due an indemnified
person under this paragraph (b), each FL Stockholder shall be liable only to the
extent of the net proceeds received by such FL Stockholder from the sale of such
FL Stockholder's Offered Securities.
(c) Each of the Other Stockholders, severally in proportion to the
number of Offered Securities to be sold by such Other Stockholder hereunder,
will indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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,
but only with reference to information relating to such Other Stockholder
furnished in writing by or on behalf of such Other Stockholder expressly for use
in the Registration Statements, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto; and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, that with respect
to any untrue statement or alleged untrue statement in or omission or alleged
omission from any preliminary prospectus or prospectus supplement, the indemnity
agreement contained in this subsection (c) shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Securities concerned, to the extent that a
prospectus or prospectus supplement relating to such Offered Securities was
required to be delivered by such Underwriter under the Act in connection with
such purchase and any such loss, claim, damage or liability of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the prospectus or prospectus supplement (exclusive of material
incorporated by reference) if the Company had previously furnished copies
thereof to such Underwriter; and provided further, however, that with respect to
any amount due an indemnified person under this paragraph (c), each Other
Stockholder shall be liable only to the extent of the net proceeds received by
such Other Stockholder from the sale of such Other Stockholder's Offered
Securities.
(d) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
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 reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred , it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph, and the eleventh and twelfth paragraphs, under the caption
"Underwriting".
19
(e) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b), (c) or (d) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a), (b), (c) or (d) above. In case any
such action is brought against any indemnified party and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party.
(f) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (d) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a),
(b), (c) or (d) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Stockholders on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters. 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, the Selling Stockholders or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of 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 action or claim which is the subject of this
subsection (f). Notwithstanding the provisions of this subsection (f), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (f) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(g) The obligations of the Company and the Selling Stockholders
under this Section shall be in addition to any liability which the Company and
the Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 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 director of the Company, to each officer of the Company who
has
20
signed a Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of Offered Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total number of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date, CSFBC may make arrangements
satisfactory to the Selling Stockholders for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total number
of Offered Securities that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to CSFBC and the Selling Stockholders
for the purchase of such Offered Securities by other persons are not made within
36 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Company or the Selling
Stockholders, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (v), (vi) or (vii) of Section 6(c), the Company and the
Selling Stockholders will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representative at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 00 Xxxxxx Xxxxxx Xxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx, Xx., or, if sent to the
Selling Stockholders or any of them, will be mailed, delivered or telegraphed
and confirmed to such Selling Stockholder at the address set forth for such
Selling Stockholder on Schedule A hereto; provided, however, that any notice to
an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
21
12. REPRESENTATION. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representative will be binding
upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed 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 Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
22
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
FORSTMANN LITTLE & CO. EQUITY
PARTNERSHIP-V, L.P.
By.......................................
[INSERT TITLE]
FORSTMANN LITTLE & CO.
SUBORDINATED DEBT AND EQUITY
MANAGEMENT BUYOUT PARTNERSHIP-
VI, L.P.
By.......................................
[INSERT TITLE]
THE OTHER SELLING STOCKHOLDERS
NAMED IN SCHEDULE A HERETO,
ACTING SEVERALLY
By.......................................
[INSERT NAME]
As Attorney-in-fact for the Selling
Stockholders
THE YANKEE CANDLE COMPANY, INC.
By..................................
[INSERT TITLE]
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By.................................
[INSERT TITLE]
Acting on behalf of itself and as the
Representative of the several Underwriters.
SCHEDULE A
SELLING STOCKHOLDERS
NUMBER OF NUMBER OF
FIRM SECURITIES OPTIONAL SECURITIES
FL STOCKHOLDERS TO BE SOLD TO BE SOLD
--------------- ---------- ----------
Forstmann Little & Co., Equity
Partnership-V, X.X.
Xxxxxxxxx Little & Co.,
Subordinated Debt and Equity
Management Buyout
Partnership-VI, L.P.
NUMBER OF NUMBER OF
FIRM SECURITIES OPTIONAL SECURITIES
OTHER STOCKHOLDERS TO BE SOLD TO BE SOLD
------------------ ---------- ----------
Total............................
---------- ----------
========== ==========
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston Corporation......................
Xxxxxx Xxxxxxx & Co. Incorporated...........................
X.X. Xxxxxx Securities Inc..................................
Total.......................................................
---------------
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