Exhibit 1.1
[Form of Underwriting Agreement]
Xxxxxxxxx Xxxxxx Inc.
Common Stock
(par value $0.01 per share)
----------------------
Underwriting Agreement
June , 2001
Xxxxxxx, Sachs & Co.,
Bear, Xxxxxxx & Co. Inc.,
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, and
Xxxxxxx Xxxxx Barney Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Xxxxxxxxx Xxxxxx Inc., a Delaware corporation (the "Company"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
3,937,966 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 590,695 additional shares (the "Optional Shares") of Common Stock, par
value $0.01 per share ("Stock"), of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares").
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-62350)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to you
for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became or will become effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any,
has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the
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Commission under the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained in the
form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective and (ii)
the documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, each as amended at the time
such part of the Initial Registration Statement became effective, or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; and any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Initial Registration Statement that
is incorporated by reference in the Registration Statement.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of an Underwriter through Xxxxxxx, Sachs & Co. or Bear,
Xxxxxxx & Co. Inc. expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the answers therein
to item 7 of Form S-3;
(iii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Sachs & Co. or Bear, Xxxxxxx & Co. Inc. expressly for
use therein or by a Selling Stockholder expressly for use in the
preparation of the answers therein to item 7 of Form S-3;
(iv) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
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thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Sachs & Co. or Bear, Xxxxxxx & Co. Inc. expressly for
use therein or by a Selling Stockholder expressly for use in the
preparation of the answers therein to item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
(vi) Each of the Company and each of its significant
subsidiaries (as defined in Rule 1-02 under Regulation S-X and
including, for the avoidance of doubt, Xxxxxxxxx Xxxxxx, LLC and
Xxxxxxxxx Xxxxxx Management Inc.) owns or leases all such properties as
are necessary to the conduct of its operations as presently conducted;
neither the Company nor any subsidiary is in non-compliance with any
term or condition of, or has failed to obtain and maintain in effect,
any license, certificate, permit or other governmental authorization
required for the ownership or lease of its property or the conduct of
its business, which violation, non-compliance or failure would
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business (a "Material Adverse Effect") and the Company has not received
notice of any proceedings relating to the revocation or material
modification of any such license, certificate, permit or other
authorization, which revocation or material modification could
reasonably be expected to have a Material Adverse Effect;
(vii) Each of the Company and its subsidiaries has been duly
incorporated or organized and is validly existing in good standing
under the laws of the jurisdiction in which it is chartered or
organized with all requisite power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business
as described in the Prospectus, and is duly qualified to do business as
a foreign corporation or organization and is in good standing under the
laws of each jurisdiction which requires such qualification, except in
each case as would not, singly or in the aggregate, have a Material
Adverse Effect;
(viii) The Company's authorized, issued and outstanding
capital stock as of March 31, 2001 is as set forth in the Prospectus in
the column titled "Actual" under the caption "Capitalization"; the
outstanding shares of Common Stock of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform to the description of the stock contained in the Prospectus;
none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or similar rights of any
securityholder of the Company; all the outstanding shares of capital
stock of each of the Company's subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable, and, except
as may be otherwise set forth in the Prospectus, all outstanding shares
of capital stock of such subsidiaries are owned by the Company either
directly or
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through wholly owned subsidiaries, free and clear of any security
interests, claims, liens or encumbrances, except as would not
reasonably be expected to have a Material Adverse Effect;
(ix) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby;
(x) This Agreement has been duly authorized, executed and
delivered by the Company;
(xi) The execution, delivery and performance of this Agreement
and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the
transactions contemplated hereby or in the Prospectus and the
consummation of the transactions contemplated herein and in the
Prospectus (including the sale of the Shares) and compliance by the
Company with its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with,
result in a breach or violation of, or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to (i) the charter or by-laws of the Company or
any of its subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
or their property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or any of its
or their properties, other than, in the case of clauses (ii) and (iii),
any breach, violation, lien, charge or encumbrance that could not
reasonably be expected to have a Material Adverse Effect;
(xii) No consent, approval, authorization, order, registration
or qualification with any court or governmental agency or body is
required for the performance by the Company of its obligations
hereunder, in connection with the sale of the Shares or in connection
with the consummation of the transactions contemplated by this
Agreement, except such as have been already obtained or will have been
obtained prior to the First Time of Delivery (as defined in Section 4
hereof), such consents, approvals, authorizations, registrations and
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares;
(xiii) The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, except for such certificates,
authorizations and permits as to which the failure to so own, hold or
possess would not have a Material Adverse Effect, and neither the
Company nor any such subsidiary has 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 any unfavorable decision, ruling or finding, would result in
a Material Adverse Effect;
(xiv) The Company is not required to be registered, licensed
or qualified as an investment adviser or a broker-dealer or as a
commodity trading advisor, a commodity pool operator or a future
commission merchant or any or all of the foregoing, as applicable; each
of the Company's subsidiaries that is required to be registered,
licensed or qualified as an investment adviser or a broker-dealer or as
a commodity trading advisor, a commodity pool operator or a futures
commission merchant or any or all of the foregoing, as applicable, is
so registered, licensed or qualified in each jurisdiction where the
conduct of its business requires such registration, license or
qualification (and such registration, license or qualification is in
full force and effect), and is in compliance with all applicable laws
requiring any such registration, licensing or qualification, except for
any failures to be so registered, licensed or qualified or to be in
such compliance that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect;
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(xv) The Company is not a party to any investment advisory
agreement or distribution agreement; each of the investment advisory
agreements and distribution agreements to which any of the Company's
subsidiaries is a party is a valid and legally binding obligation of
such subsidiary which is a party thereto and complies with the
applicable provisions of the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), except for any failures to be so in
compliance that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect; and none of the
Company's subsidiaries is in breach or violation of or in default under
any such agreement which breach, violation, default or invalidity,
individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect;
(xvi) The Company does not sponsor any funds; each fund
sponsored by any of the Company's subsidiaries (a "Fund" or the
"Funds") and which is required to be registered with the Commission as
an investment company under the Investment Company Act of 1940, as
amended (the "Investment Company Act") is duly registered with the
Commission as an investment company under the Investment Company Act,
except for any failures to be so registered that, individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect;
(xvii) Neither the Company nor any subsidiary is (i) in the
case of the Company or any material subsidiary, in violation of any
provision of its charter or bylaws, (ii) in default of the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) to the knowledge of the Company in violation of any
statute, law, rule, regulation, judgment, order or decree of any
federal, state, local or foreign court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its or their
properties, as applicable (including without limitation Rule 15c3-1
under the Exchange Act), which violation or default, in the case of
clauses (ii) and (iii), would have a Material Adverse Effect;
(xviii) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock and the Stockholders
Agreement, and under the captions "Prospectus Summary--The Repurchase",
"Prospectus Summary--Share Repurchase Plan", "Management" and
"Principal and Selling Stockholders", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are, in all material respects, accurate and fair summaries or
descriptions thereof;
(xix) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending
or, to the best knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby, or (ii) could reasonably be expected
to have a Material Adverse Effect, except, in the case of this clause
(ii), as may be set forth in the Prospectus; and no labor disturbance
by or dispute with the employees of the Company or any of its
subsidiaries exists or is, to the best knowledge of the Company,
threatened or is imminent that could reasonably be expected to have a
Material Adverse Effect;
(xx) The historical consolidated financial statements and
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Prospectus present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods indicated
therein, comply as to form with the applicable accounting requirements
of the Act, the Exchange Act and the applicable rules and regulations
thereunder and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The selected
consolidated financial data incorporated in the Prospectus by reference
to the Annual Report of the Company on Form 10-K
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in respect of the year ended December 31, 2000 and the Quarterly Report
of the Company on Form 10-Q in respect of the quarter ended March 31,
2001, fairly present in all material respects, on the basis stated in
such Annual Report or Quarterly Report, as the case may be, the
information included therein;
(xxi) The Company and each of its subsidiaries owns,
possesses, licenses, or has other rights to use all material patents,
patent applications, trade and service marks, trade and service xxxx
registrations, trade names, copyrights, licenses, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct
of their respective business as now conducted, subject to such
limitations on the use of, or the rights to use such Intellectual
Property that, individually or in the aggregate, would not have a
Material Adverse Effect;
(xxii) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a Material Adverse Effect) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a Material
Adverse Effect;
(xxiii) The Company and each of its significant subsidiaries
(as defined in Rule 1-02 under Regulation S-X and including, for the
avoidance of doubt, Xxxxxxxxx Xxxxxx, LLC and Xxxxxxxxx Xxxxxx
Management Inc.) are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged;
neither the Company nor any subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect;
(xxiv) There are no holders of securities of the Company or
any of its subsidiaries who, by reason of the execution of this
Agreement by the Company or any of its subsidiaries or any Selling
Stockholder, as the case may be, or the consummation of the
transactions contemplated hereby or thereby, have or will have the
right to request or demand the Company or any of its subsidiaries or
any Selling Stockholder to register under the Act any securities held
by them;
(xxv) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or the rules and regulations of the
Commission thereunder which have not been described in the Prospectus
or filed as exhibits to the Registration Statement or incorporated by
reference therein;
(xxvi) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended;
(xxvii) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and its consolidated subsidiaries
and delivered their report with respect to such audited consolidated
financial statements included in the Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act
and the applicable published rules and regulations thereunder for the
periods so reported;
(xxviii) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
is described in the Prospectus;
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(xxix) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials the Company and its
subsidiaries have received all permits, licenses or other approval
required of them under applicable federal and state occupational safety
and health and environmental laws and regulations to conduct their
respective businesses, and the Company and each such subsidiary is in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals which would not, singly or in the aggregate, result in a
Material Adverse Effect;
(xxx) The Company and each of its subsidiaries has fulfilled
its obligations, if any, under the minimum funding standards of Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of
1974 ("ERISA") and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in which
employees of the Company or its subsidiaries are eligible to
participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations, other than such
non-compliance that would not have a Material Adverse Effect. The
Company and its subsidiaries have not incurred any unpaid liability to
the Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of
ERISA; and
(xxxi) The Company has not taken, and will not take, directly
or indirectly, any action prohibited by Regulation M under the Exchange
Act (to the extent applicable) in connection with the offering of the
Shares.
(b) Each of the Selling Stockholders, severally and not jointly,
represents and warrants to, and agrees with, each of the Underwriters and the
Company that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of
this Agreement and the Power of Attorney described in clause (ix), and
for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder have been obtained, except for the registration
under the Act of the Shares, the filing of any necessary amendment to
any report on Schedule 13D relating to the Company previously filed by
such Selling Stockholder, a waiver of the transfer restrictions set
forth in the Stockholders Agreement dated as of August 2, 1999 among
the Company and the stockholders named therein (the "Stockholders
Agreement"), which has previously been obtained, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under foreign or state securities or Blue Sky laws; and such
Selling Stockholder has full right, power and authority to enter into
this Agreement and the Power of Attorney and to sell, assign, transfer
and deliver the Shares to be sold by such Selling Stockholder
hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder
with all of the provisions of this Agreement, and the Power of Attorney
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound, or to which any of
the property or assets of such Selling Stockholder is subject (other
than the Stockholders Agreement, all relevant restrictions of which
have been waived in connection with the transactions contemplated
hereby), nor will such action result in any violation of the provisions
of the Certificate of Incorporation, By-laws, Partnership Agreement or
other organizational documents, as applicable, of such Selling
Stockholder or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling Stockholder, except
that
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such Selling Stockholder makes no representations under this
sub-paragraph (b)(ii) as to the registration or filing requirements or
disclosure provisions of the securities laws of the United States or
the securities or Blue Sky laws of any other jurisdiction, which
representations are contained elsewhere in this Agreement;
(iii) Such Selling Stockholder has, and immediately prior to
each Time of Delivery (as defined in Section 4 hereof), such Selling
Stockholder will have, good and valid title to the Shares to be sold by
such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims (subject to the waiver of all
restrictions under the Stockholders Agreement, which such Selling
Stockholder has previously obtained); upon (i) payment for the Shares
to be sold by such Selling Stockholder in accordance with this
Agreement, (ii) registration of the transfer of such Shares to, and
registration of such Shares in the name of, Cede & Co. or other nominee
designated by The Depository Trust Company ("DTC") and (iii) the
crediting of such Shares to the accounts maintained by DTC for the
several Underwriters, (A) the Underwriters will acquire "security
entitlements" (as defined in Section 8-102 of the Uniform Commercial
Code as currently in effect in the State of New York (the "UCC")) in
respect of such Shares and (B) no action based on an "adverse claim"
(as defined in Section 8-102 of the UCC) to such Shares may be asserted
against the Underwriters with respect to such security entitlements,
assuming that each Underwriter does not have "notice" (within the
meaning of Section 8-105 of the UCC) of any "adverse claim" (as defined
in Section 8-102 of the UCC) to such Shares;
(iv) This Agreement has been duly executed and delivered by or
on behalf of such Selling Stockholder;
(v) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, such Selling Stockholder (other than the Xxxxxxxxx Xxxxxx
Employee Defined Contribution Incentive Plan Trust and any employees
holding an interest therein) will not, directly or indirectly, offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any shares of Stock or any other securities of the Company
that are substantially similar to the Shares, including but not limited
to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Stock or any such substantially
similar securities (other than (A) pursuant to employee benefit plans
or director compensation plans of the Company and agreements with the
Company relating to Stock and options to purchase shares of Stock, in
each case, existing at the Time of Delivery, (B) as contemplated by the
Stockholders Agreement, or (C) any offers, sales, contracts to sell or
other dispositions of Shares to the Company), without the prior written
consent of Xxxxxxx, Sachs & Co.;
(vi) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vii) To the extent that, but only to the extent that, any
statements or omissions made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Selling
Stockholder expressly for use therein, such Preliminary Prospectus and
the Registration Statement did, and the Prospectus and any further
amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
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(viii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or
at the First Time of Delivery (as defined in Section 4) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(ix) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder have been
placed in custody with the Company as custodian (the "Custodian"), and
such Selling Stockholder has duly executed and delivered a Power of
Attorney (the "Power of Attorney"), appointing each of Xxxxxxx Xxxx,
Xxxxxx Xxxxx and Xxxxx Xxxxxxxxxx as such Selling Stockholder's
attorney-in-fact (the "Attorney-in-Fact") with authority to, among
others, execute and deliver this Agreement on behalf of such Selling
Stockholder, to determine the purchase price to be paid by the
Underwriters to the Selling Stockholders as provided in Section 2
hereof, to authorize the delivery of the Shares to be sold by such
Selling Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in connection with the transactions contemplated by
this Agreement; and
(x) The Shares represented by the certificates held in custody
for such Selling Stockholder will be subject to the interests of the
Underwriters hereunder; the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling
Stockholder of the Attorney-in-Fact by the Power of Attorney, are to
that extent irrevocable; the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the
death or incapacity of any individual Selling Stockholder or, in the
case of an estate or trust, by the death or incapacity of any executor
or trustee or the termination of such estate or trust, or in the case
of a partnership, corporation or other entity, by the dissolution of
such partnership, corporation or other entity, or by the occurrence of
any other event; if any individual Selling Stockholder or any such
executor or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or if any such partnership,
corporation or other entity should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on behalf
of the Selling Stockholders in accordance with the terms and conditions
of this Agreement, and actions taken by the Attorney-in-Fact pursuant
to the Powers of Attorney shall be as valid as if such death,
incapacity, termination, dissolution or other event had not occurred,
regardless of whether or not the Custodian, the Attorney-in-Fact, or
any of them, shall have received notice of such death, incapacity,
termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) each of
the Selling Stockholders agree, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Stockholders, at a purchase price
per share of $[___], the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Firm Shares to be sold by each of the Selling Stockholders as set forth opposite
their respective names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agree, severally and not jointly, to purchase from each of
the Selling Stockholders, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
9
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 590,695 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares shall be made in proportion to the number
of Optional Shares to be sold by each Selling Stockholder as set forth in
Schedule II hereto. Any such election to purchase Optional Shares may be
exercised only by written notice from you to the Attorney-in-Fact, given within
a period of 30 calendar days after the date of this Agreement and setting forth
the aggregate number of Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless you and the Attorney-in-Fact otherwise agree in writing, earlier than two
or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. and Bear, Xxxxxxx & Co. Inc. may request upon at
least forty-eight hours' prior notice to the Selling Stockholders shall be
delivered by or on behalf of the Selling Stockholders to Xxxxxxx, Xxxxx & Co.,
through the facilities of DTC, for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the
Custodian to Xxxxxxx, Sachs & Co. and Bear, Xxxxxxx & Co. Inc. at least
forty-eight hours in advance. The Selling Stockholders will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Firm Shares, 9:30 a.m., New York City time, on July [5],
2001 or such other time and date as Xxxxxxx, Sachs & Co., Bear, Xxxxxxx & Co.
Inc. and the Selling Stockholders may agree upon in writing, and, with respect
to the Optional Shares, 9:30 a.m., New York City time, on the date specified by
Xxxxxxx, Sachs & Co. and Bear, Xxxxxxx & Co. Inc. in the written notice given by
Xxxxxxx, Sachs & Co. and Bear, Xxxxxxx & Co. Inc. of the Underwriters' election
to purchase such Optional Shares, or such other time and date as Xxxxxxx, Sachs
& Co. Bear, Xxxxxxx & Co. Inc., and the Selling Stockholders may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(n) hereof, will be delivered at the offices
of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at 3:00 p.m., New York City time, on the New York Business Day
next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4 (and
Section 5(c) hereof), "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior to
the last Time of Delivery which shall be reasonably disapproved by you promptly
after
10
reasonable notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Shares; to advise you, promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or Prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process or take any action that would subject the Company to any
material tax to which it would not otherwise be subject in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
is required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange Act,
to notify you and upon your request to file such document and prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance, and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the Shares at any
time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158)
under the Act;
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to,
directly or indirectly, offer, sell, contract to sell or otherwise dispose of
(other than transfers for clients, conducted in the ordinary course of its
brokerage activities), except as provided hereunder, any shares of Stock or any
other securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities, without the prior written consent of Xxxxxxx,
Sachs & Co. Notwithstanding the foregoing, the restrictions set forth in this
section shall not apply
11
to (A) the Shares to be sold hereunder, (B) Stock issued, but not sold, to
individuals in connection with their being hired as employees of the company or
a subsidiary, (C) any shares of Stock issued by the Company upon the exercise of
an option or warrant or upon the conversion of a security outstanding on the
date hereof, a list of which is attached hereto as Schedule 5(e), (D) any shares
of Stock issued or options to purchase Stock granted pursuant to existing
employee benefit plans or director compensation plans of the Company, (E)
agreements to sell, or issuances of, securities to strategic investors or in
connection with acquisitions, joint ventures and other strategic business
objectives, so long as those persons to whom the Company issues such securities
agree not to sell them for the then remaining portion of the 90 day lock-up
period, (F) the filing of a registration statement and any amendments thereto
relating to the Company's $175 million aggregate principal amount at maturity of
Liquid Yield Option Notes Due 2021 (the "XXXXx") and the shares of Stock
issuable upon conversion of the XXXXx and sales of securities thereunder, and
(G) the issuance of the shares of Stock issuable upon conversion of the XXXXx.
(f) To (i) furnish to its stockholders after the end of each fiscal
year, an annual report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and (ii) to make
available after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail, in each case
no later than required by the rules and regulations of the Commission or any
national securities exchange on which any securities of the Company may be
listed;
(g) During a period of three years from the effective date of the
Registration Statement, to make available to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To file with the Commission such information on Form 10-Q or Form
10-K as may be required under the Exchange Act; and
(i) If the Company elects to rely upon Rule 462(b), to file a Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and at the
time of such filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
it will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Selling Agreements, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) the cost of
preparing stock certificates; (iv) the cost and charges of any transfer agent or
registrar; (v) any expenses and taxes incident to the sale and delivery of the
Shares to be sold by the Selling Stockholders to the Underwriters and (vi) all
other costs and expenses incident to the performance of each Selling
Stockholder's obligations hereunder (other than fees and expenses of individual
counsel for such Selling
12
Stockholder which is not counsel to the Selling Stockholders as a group) which
are not otherwise specifically provided for in this Section. In connection with
(v) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay any required
New York State stock transfer tax, and such Selling Stockholders agree to
reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs if such tax payment
is not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that the Company shall bear the cost of any
other matters not directly relating to the sale and purchase of the Shares
pursuant to this Agreement, and that, except as provided in this Section, and
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale of
any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement
shall have become effective by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with
to your reasonable satisfaction;
(b) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such written opinion or
opinions (a draft of each such opinion is attached as Annex II(a)
hereto), dated such Time of Delivery, with respect to the incorporation
of the Company, the validity of the Shares being delivered at such Time
of Delivery, the Registration Statement and the Prospectus, as well as
such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Company, shall
have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(b) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable;
and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business in New
York and is in good standing under the laws of each state set
forth below its name on Annex III hereto, (such counsel being
entitled to rely in respect of the opinion in this clause upon
certificates of government officials in the relevant
jurisdictions regarding the Company's qualification as a
foreign corporation and good standing and in respect of
matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that
both you and they are justified in relying upon such opinions
and certificates);
13
(iv) Xxxxxxxxx Xxxxxx LLC ("NB LLC") has been duly
formed and is validly existing as a limited liability company
in good standing under the laws of the State of Delaware; all
of the membership interests of NB LLC have been validly issued
in accordance with applicable law and the limited liability
company agreement of NB LLC, and are owned directly by the
Company; and NB LLC is duly qualified as a foreign limited
liability company to transact business, and is in good
standing in each state set forth below its name on Annex III
hereto (such counsel being entitled to rely in respect of the
opinion in this clause upon certificates of government
officials in the relevant jurisdictions regarding the
Company's qualification as a foreign corporation and good
standing and in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and
certificates); Xxxxxxxxx Xxxxxx Management Inc. ("NBMI") has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
New York; all of the issued shares of capital stock of NBMI
have been duly and validly authorized and issued, are fully
paid and non-assessable, and are owned directly by the
Company; and NBMI is duly qualified as a foreign corporation
to transact business, and is in good standing in each state
set forth below its name on Annex III hereto, (such counsel
being entitled to rely in respect of the opinion in this
clause upon certificates of government officials in the
relevant jurisdictions regarding the Company's qualification
as a foreign corporation and good standing and in respect of
matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in
relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject that,
individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect, would reasonably be
expected to materially and adversely affect the sale of the
Shares or would affect the validity of this Agreement; and, to
the best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or others;
(vi) This Agreement have been duly authorized,
executed and delivered by the Company;
(vii) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated (a) will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement
listed on Annex IV hereto, (b) result in any violation of the
provisions of the Certificate of Incorporation or By-laws or
other organizational documents of the Company, NB LLC or NBMI
or (c) to such counsel's knowledge, result in any violation of
any New York, Delaware corporate or United States federal
statute, order, rule or regulation (other than State
securities or Blue Sky laws as to which such counsel need
express no opinion, and other than United States federal
securities laws, as to which such counsel need express no
opinion except as otherwise specifically set forth herein), or
any order known to such counsel of any New York, Delaware
(insofar as Delaware corporate law is concerned) or United
States federal court or governmental agency or body having
jurisdiction over the Company, NB LLC or NBMI or any of their
properties, except, in the case of clauses (a) and (c) above,
any conflicts, breaches, defaults or violations that,
individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect or impair the
ability of the Company and its subsidiaries to perform their
respective obligations under, or consummate the transactions
contemplated by this Agreement;
14
(viii) To such counsel's knowledge, no consent,
approval, authorization, order, registration or qualification
of or with any New York, Delaware (insofar as Delaware
corporate law is concerned) or United States federal court or
governmental agency or body is required for the sale of the
Shares or the consummation by the Company or any of its
subsidiaries of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Shares by the Underwriters;
(ix) The statements set forth in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock and
the Stockholders Agreement, and under the caption "Prospectus
Summary--The Repurchase", insofar as they purport to describe
the provisions of the laws and documents referred to therein,
are, in all material respects accurate and fair summaries or
descriptions thereof;
(x) Such counsel does not know of any contracts or
other documents which are required to be filed as exhibits to
the Registration Statement by the Act or by the rules and
regulations thereunder which have not been filed as exhibits
to the Registration Statement;
(xi) The Company is not required to be registered,
licensed or qualified as an investment adviser or a
broker-dealer or as a commodity trading advisor, a commodity
pool operator or a futures commission merchant or any or all
of the foregoing, as applicable; each of NB LLC and NBMI is
registered as an investment adviser under the Advisers Act
(and such registration is in full force and effect); each of
NB LLC and NBMI is registered as a broker-dealer under the
Exchange Act (and such registration is in full force and
effect); NB LLC is registered as a commodity trading advisor,
commodity pool operator and futures commission merchant under
the Commodity Exchange Act (the "CEA") (and such registration
is in full force and effect);
(xii) Neither the Company, NB LLC nor NBMI is, and,
after giving effect to the offering and sale of the Shares,
will be an "investment company" or an entity "controlled" by
an "investment company", as such terms are defined in the
Investment Company Act;
(xiii) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related notes and schedules and other
financial data included or incorporated by reference therein
or omitted therefrom, including data with respect to assets
under management, as to which such counsel need express no
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
Exchange Act, as applicable and the rules and regulations of
the Commission thereunder.
(xiv) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements, related notes and schedules and other
financial data included or incorporated by reference therein
or omitted therefrom, including data with respect to assets
under management, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder;
(xv) A Power of Attorney has been duly executed and
delivered by each Selling Stockholder identified on Annex V
and constitutes a valid and legally binding agreement of each
such Selling Stockholder in accordance with the terms therein,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
15
(xvi) This Agreement has been duly executed and
delivered by or on behalf of each Selling Stockholder
identified on Annex V; and
(xvii) Upon (i) payment for the Shares to be sold by
the Selling Stockholders in accordance with this Agreement,
(ii) registration of the transfer of such Shares to, and
registration of such Shares in the name of, Cede & Co. or
other nominee designated by DTC and (iii) the crediting of
such Shares to the accounts maintained by DTC for the several
Underwriters, assuming that such accounts are "securities
accounts" (as defined in Section 8-501 of the UCC), (A) the
Underwriters will acquire "security entitlements" (as defined
in Section 8-102 of the UCC) in respect of such Shares and (B)
no action based on an "adverse claim" (as defined in Section
8-102 of the UCC) to such Shares may be asserted against the
Underwriters with respect to such security entitlements,
assuming that each Underwriter does not have "notice" (within
the meaning of Section 8-105 of the UCC) of any "adverse
claim" (as defined in Section 8-102 of the UCC) to such
Shares. In rendering the opinion in subparagraph (xvii) such
counsel may rely upon a certificate of such Selling
Stockholder in respect of matters of fact as to ownership of,
and liens, encumbrances, equities or claims on the Shares sold
by such Selling Stockholder, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such certificate.
In addition, such counsel shall state that it has participated
in conferences with directors, officers and other representatives of
the Company, various of the Selling Stockholders, representatives of
the independent public accountants for the Company, representatives of
the Underwriters and representatives of counsel for the Underwriters,
at which conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and
assumes no responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except to the extent specified in subsection (ix) of this
Section 7(c), no facts have come to such counsel's attention which
leads such counsel to believe that the Registration Statement, as of
its effective date, (other than the financial statements, related notes
and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, including data with respect to
assets under management, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements, related notes and schedules and other financial data
included or incorporated by reference therein or omitted therefrom,
including data with respect to assets under management, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
or that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements, related notes and schedules and other financial data
included or incorporated by reference therein or omitted therefrom,
including data with respect to assets under management, as to which
such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(e) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Xxxxxx Xxxxxxxx LLP shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and
16
a draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto);
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the NYSE; (ii) a suspension or
material limitation in trading in the Company's securities on the NYSE;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iv) in the judgment
of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered
at such Time of Delivery on the terms and in the manner contemplated in
the Prospectus;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the persons identified on
Annex VI hereto substantially to the effect set forth in Subsection
5(e) hereof in form and substance satisfactory to you;
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(k) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and of the Selling
Stockholders, respectively, reasonably satisfactory to you as to the
accuracy of the representations and warranties of the Company and the
Selling Stockholders, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling
Stockholders of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request, and the Company shall have
furnished or caused to be furnished certificates as to the matters set
forth in subsections (a), (f) and (g) of this Section, and as to such
other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or
17
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through Xxxxxxx, Sachs & Co. or Bear,
Xxxxxxx & Co. Inc. expressly for use therein.
(b) Each of Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each Underwriter in proportion to the maximum number
of Shares sold by such Selling Stockholder, including any Optional Shares, as
set forth in Schedule II hereto, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading but only to
the extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that such Selling
Stockholder shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
Xxxxxxx, Sachs & Co. or Bear, Xxxxxxx & Co. Inc. expressly for use therein;
provided, further, that the liability of a Selling Stockholder pursuant to this
Section 8(b) shall not exceed the amount of net proceeds received by such
Selling Stockholder from the sale of its Shares, including any Optional Shares,
pursuant to this Agreement.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Underwriter through Xxxxxxx,
Sachs & Co. or Bear, Xxxxxxx & Co. Inc. expressly for use therein; and will
reimburse the Company and each Selling Stockholder, as the case may be, for any
legal or other expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any such action or
claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a), (b), or
(c) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against
18
an indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party); provided, however, that the Company shall not, in
connection with any one such action or proceeding or separate but substantially
similar actions or proceedings arising out of the same general allegations, be
liable for the fees and expenses of more than one separate firm of attorneys at
any time for all Indemnified Persons except to the extent that local counsel, in
addition to its regular counsel, is required in order to effectively defend
against such action or proceeding, and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party. An
indemnifying party shall not be liable under this Section 8(d) to any
indemnified party regarding any settlement or compromise or consent to the entry
of any judgment with respect to any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnifying party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment is consented to
by such indemnifying party, which consent shall not be unreasonably withheld.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other to the Agreement in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders taken together 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 of the Shares purchased under this Agreement (before deducting
expenses) received by the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
shares purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus, and for the purpose of the allocation of
benefits under this sentence the Company shall be deemed to have received all of
the benefits received by the Selling Stockholders, to the sum of the total net
proceeds from the sale of the Shares (before deducting expenses) in the
offering. 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 respectively, by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or
19
prevent such statement or omission. The Company, each of the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), (i) the Underwriter shall not be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by 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 and (ii) no Selling Stockholder shall be required to
contribute an amount in excess of the amount of net proceeds received by such
Selling Stockholder from the sale of its Shares, including any Optional Shares,
pursuant to this Agreement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling
Stockholders under this Section 8 shall be in addition to any liability which
the Company, and the respective Selling Stockholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company) and to each person, if
any, who controls the Company or any Selling Stockholder within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Stockholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholders shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
20
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholders shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company
and the Selling Stockholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter, or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. or Bear, Xxxxxxx & Co. Inc. on
behalf of you as the representatives; and in all dealings with any Selling
Stockholder hereunder, you and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by the Attorney-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Xxxxx &
Co., 00 Xxx Xxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department and Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, XX; if to
any Selling Stockholder shall be delivered or sent by mail, telex or facsimile
transmission to counsel for such Selling Stockholder at its address set forth in
Schedule II hereto; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Xxxxx Xxxxxxxxxx, Esq., General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 8(d)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire or
telex constituting such Questionnaire, which address will be supplied to the
Company of the Selling Stockholders by you upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, any Selling Stockholder,
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person
21
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company, and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
22
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
Xxxxxxxxx Xxxxxx Inc.
By:
-----------------------------------------
Name:
Title:
The Selling Stockholders listed in Schedule II hereto
By:
-----------------------------------------
Name:
Title: As Attorney-in-Fact acting on behalf of
each of the Selling Stockholders named
in Schedule II to this Agreement.
Accepted as of the date hereof
in New York, New York:
Xxxxxxx, Sachs & Co.
Bear, Xxxxxxx & Co. Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
By:
-------------------------------------------------
(Xxxxxxx, Xxxxx & Co.)
By:
-------------------------------------------------
(Bear, Xxxxxxx & Co. Inc.)
23
By:
-------------------------------------------------
(X.X. Xxxxxx Securities Inc.)
By:
-------------------------------------------------
(Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated)
By:
-------------------------------------------------
(Xxxxxxx Xxxxx Barney Inc.)
On behalf of each of the Underwriters
24
SCHEDULE I
Number of
Optional Shares
Total Number to be sold
of Firm Shares if Maximum
to be Sold Option Exercised
---------- ----------------
Underwriter
-----------
Xxxxxxx, Xxxxx & Co................................................
Bear, Xxxxxxx & Co. Inc............................................
X.X. Xxxxxx Securities Inc.........................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.................
Xxxxxxx Xxxxx Barney Inc...........................................
------------------- -------------------
Total ......................................... $ 3,937,966 590,695
=================== ===================
SCHEDULE II
Number of
Optional Shares
Total Number to be sold
of Firm Shares if Maximum
to be Sold Option Exercised
---------- ----------------
The Selling Stockholders(a):
Xxxxx, Xxxxxx X. 199,720 40,280
Xxxxxx, Xxxxxxx 46,810 9,440
Xxxxxx Associates, L.P. 15,603 3,147
Xxxx, Xxxxxxxx X. 21,651 4,367
X'Xxxx, Xxxxxxxxx 19,693 3,972
Xxxxxxxx, Xxxxxxx X. 21,636 4,364
Francfort, Xxxxxxx X. 15,811 3,189
Francfort 1998 Grantor Retained Annuity Trust 66,574 13,426
Xxxxx, Xxxxxx X. 108,089 21,799
Ganek Associates, L.P. 4,959 1,000
Xxxxxxxxx, Xxxxxx X. 58,680 11,834
Xxxxxxx, Xxx X. 14,022 2,828
Xxxxxx, Xxxx X. 34,951 7,049
Xxxx, Xxxxxxx X. 13,315 2,685
Xxxxxxx, Xxxx X. 84,483 17,039
Xxxxxxxxxxxx Associates, LP 2,754 555
Lainoff Associates, L.P. 108,289 21,840
Xxxx, Xxxxxxx X. 41,608 8,392
Xxxxxx, Xxxxxx X. 14,059 2,836
Lasser Associates, L.P. 11,683 2,356
Xxxxx, Xxxxxx 24,965 5,035
XxXxxxxx, Xxxxxx 18,374 3,706
McKerrow Associates, L.P. 12,483 2,517
Xxxxxxxxx Associates, L.P. 100,536 20,276
Xxxxxx, Xxxx X. 90,734 18,299
Xxxxxxxxx Xxxxxx Employee Defined Contribution Stock 1,009,089 0
Incentive Plan Trust
Xxxxxx, Xxxxxx X. 5,825 1,175
Xxxxxx Associates, L.P. 24,965 5,035
Xxxxxxx Associates, L.P. 70,847 14,289
Xxxxxxx 1998 Grantor Retained Annuity Trust 63,659 12,839
Xxxxxxx, Xxxxx X. 74,895 15,105
Risen, Xxxxx X. 37,365 7,536
Xxxxxxxxxx, Xxxxxx X. 32,765 6,608
Xxxxxxxx XX Associates, L.P. 286,160 57,713
Xxxxxxxx XX Associates, L.P. 286,161 57,712
Silver, Xxxxxxxx X. 42,178 8,507
Xxxxxx, Xxxx X. 22,512 4,540
Xxxxxx, R. Xxxxxx 52,427 10,573
Xxxxxx, Xxxxxx X. 21,220 4,280
Xxxxxxxxx, Xxxxx X. 126,901 25,593
Xxxxx, Xxxx 32,368 6,528
Sterne, Xxxxxxx Xxxxx 33,287 6,713
The Xxxxxxx 1998 Trust 33,916 6,840
Xxxxxxx, Xxxxx X. 59,916 12,084
Xxxxxxx Associates, L.P. 2,497 503
Vale, Xxxxxx X. 95,585 19,277
Xxxxxx, Xxxxx X. 42,566 8,585
Weiner 1998 Grantor Retained Annuity Trust 20,804 4,196
Xxxxxxxx, Xxxxxxxx 195,907 39,511
Xxxxxxxx Associates, L.P. 53,496 10,789
Xxxxxxxxx, Xxxxxx X. 21,695 4,375
White III, Xxxxx X. 37,478 7,558
Total 3,937,966 590,695
(a) Each of the Selling Stockholders has appointed Xxxxxxx X. Xxxx, Xxxxxx Xxxxx
and Xxxxx Xxxxxxxxxx as the Attorney-in-Fact for such Selling Stockholder.
SCHEDULE 5(e)
Plan Number of Shares
---- ----------------
1999 Xxxxxxxxx Xxxxxx Inc. Long-Term Incentive Plan 2,966,619
1999 Xxxxxxxxx Xxxxxx Inc. Directors Stock Incentive Plan 46,769
ANNEX I
Pursuant to Section 7(g) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder;
and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been furnished
to the representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Company's quarterly report on
Form 10-Q incorporated by reference into the Prospectus as indicated in
their reports thereon copies of which have been separately furnished to
the Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the
basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements
and other information referred to below, a reading of the latest
available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act as it applies to Form
10-Q and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus
or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause (A)
and any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in clause (B) were not
determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of the last date of the month immediately preceding
the date of such letter, there have been any significant changes
in the capital stock or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated stockholders' equity, in each case, as
compared with amounts shown in the latest balance sheet included
or incorporated by reference in the Prospectus, except in each
case for changes, increases and decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to a date no more than five days prior to the date of such letter,
there were any significant changes in consolidated financial
position, results of operations or cash flows, in each case as
compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for changes which the
Prospectus discloses have occurred or may occur or which are
described in such letter, and
(vii) In addition to the examination referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference) or in Part II
of, or in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
ANNEX II(a)
[Opinion and Negative Comfort Letter of Cleary, Gottlieb, Xxxxx & Xxxxxxxx]
ANNEX II(b)
[Opinion of Willkie, Xxxx & Xxxxxxxxx]
ANNEX III
[To Come]
ANNEX IV
[To Come]
ANNEX V
Xxxxxx X. Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxx X. Xxxx
Xxxxxxxxx X'Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxxxx Xxxxx
Xxxxxx XxXxxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxx X. Risen
Xxxxxx X. Xxxxxxxxxx
Xxxxxxxx X. Silver
Xxxx X. Xxxxxx
R. Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxx Xxxxx
Xxxxxxx-Xxxxx Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx III
Xxxxxxx Associates, X.X.
Xxxxxxxxx Xxxxxx Employee Defined Contribution Stock Incentive Plan Trust
Xxxxxxxx XX Associates, X.X.
Xxxxxxxx ES Associates, L.P.
ANNEX VI
Xxxxxxx X. Xxxxxx
Xxxxxx X. D'Alelio
Xxxxxx Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxxx, Jr.
Xxx X. Xxxxxxx
Xxxxxx X. XxXxxxxx
Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx Associates, L.P.
Kamen Associates, X.X.
Xxxxxx Associates, L.P.
Zicklin Associates, L.P.
