DRAFT
______________________________
HK SYSTEMS, INC.
COMMON STOCK
INTERNATIONAL UNDERWRITING AGREEMENT
_____ __, 1997
Xxxxxx Brothers International (Europe)
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxx Xxxx LLC,
As Representatives of the several
International Managers named in Schedule 1,
c/x Xxxxxx Brothers International (Europe)
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
HK Systems, Inc., a Wisconsin Corporation (the "Company"), and
certain stockholders of the Company named in Schedule 2 hereto (the
"Selling Stockholders"), propose to sell an aggregate of _________ shares
(the "Firm Stock") of the Company's Common Stock, par value $___ per share
(the "Common Stock"). Of the __________ shares of the Firm Stock,
________ are being sold by the Company and _________ by the Selling
Stockholders. In addition, the Selling Stockholders propose to grant to
the underwriters named in Schedule 1 hereto (the "International Managers")
an option to purchase up to an additional _______ shares of the Common
Stock on the terms and for the purposes set forth in Section 3 (the
"Option Stock"). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the "Stock." This is to confirm the
agreement concerning the purchase of the Stock from the Company and the
Selling Stockholders by the International Managers named in Schedule 1
hereto.
It is understood by all parties that the Company and the Selling
Stockholders are concurrently entering into an agreement dated the date
hereof (the "U.S. Underwriting Agreement") providing for the sale by the
Company and the Selling Stockholders of an aggregate of ____________
shares of Common Stock (including the over-allotment option thereunder)
(the "U.S. Stock") through arrangements with certain underwriters in the
United States and in Canada (the "U.S. Underwriters"), for whom Xxxxxx
Brothers Inc., and Xxxxxx X. Xxxxx & Co. Incorporated and Xxxxxx Xxxx LLC
are acting as representatives. The International Managers and the U.S.
Underwriters simultaneously are entering into an agreement between the
international and U.S. underwriting syndicates (the "Agreement Between
U.S. Underwriters and International Managers") which provides for, among
other things, the transfer of shares of Common Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sales of shares of Common Stock contemplated by the
foregoing, one relating to the Stock and the other relating to the U.S.
Stock. The latter form of prospectus will be identical to the former
except for certain substitute pages as included in the registration
statement and amendments thereto referred to below. Except as used in
Sections 3, 4, 5, 11, and 12 herein, and except as the context may
otherwise require, references herein to the Stock shall include all the
shares which may be sold pursuant to either this Agreement or the U.S.
Underwriting Agreement, and references herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall
include both the international and U.S. versions thereof.
1. Representations, Warranties and Agreements of the Company and the
Selling Stockholders. The Company and the Selling Stockholders represent,
warrant and agree that:
(a) A registration statement on Form S-1, and any amendment
thereto, with respect to the Stock has (i) been prepared by the
Company in conformity with the requirements of the United States
Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rule and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder,
(ii) been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act. Copies of such
registration statement and any amendment thereto have been delivered
by the Company to you as the lead managers (the "Lead Managers") of
the International Managers. As used in this Agreement, "Effective
Time" means the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means
the date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration statement, or amendments
thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent
of the Lead Managers pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all
information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 6(a) hereof and deemed to be a part of the
Registration Statement as of the Effective Time pursuant to paragraph
(b) of Rule 430A of the Rules and Regulations; and "Prospectus" means
such final prospectus, as first filed with the Commission pursuant to
paragraph (1) or (4) of Rule 424(b) of the Rules and Regulations.
The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus;
b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement
or the Prospectus will, when they become effective or are filed with
the Commission, as the case may be, conform in all respects to the
requirements of the Securities Act and the Rules and Regulations 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
that no representation or warranty is made as to information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Lead Managers by or
on behalf of any International Manager specifically for inclusion
therein;
(c) The Company and each of its subsidiaries (as defined in
Section 17) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification, and have
all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged;
and none of the subsidiaries of the Company is a "significant
subsidiary", as such term is defined in Rule 405 of the Rules and
Regulations;
(d) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares and except as set forth in
the Prospectus, are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(e) The unissued shares of the Stock to be issued and sold by
the Company to the International Managers hereunder and under the
U.S. Underwriting Agreement have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein and in the U.S. Underwriting Agreement, will be duly and
validly issued, fully paid and non-assessable, and the Stock will
conform to the description thereof contained in the Prospectus;
(f) This Agreement has been duly authorized, executed and
delivered by the Company;
(g) The execution, delivery and performance of this Agreement
and the U.S. Underwriting Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets; and except for the registration of the
Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Securities Exchange Act of 1934 (the "Exchange Act") and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Stock by the International Managers
and U.S. Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement or the U.S. Underwriting Agreement by
the Company and the consummation of the transactions contemplated
hereby and thereby;
(h) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act;
(i) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period
preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified
stock options plans or other employee compensation plans or pursuant
to outstanding options, rights or warrants;
(j) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, 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;
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby,
at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The selected
financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein;
(l) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus and
who has delivered the initial letter referred to in Section 9(g)
hereof, are independent public accountants as required by the
Securities Act and the Rules and Regulations;
(m) The Company has each of its subsidiaries has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect
the value of such property and do not materially interfere with the
use made and proposed to be made of such property by the Company and
its subsidiaries; and all real property and buildings held under
lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
subsidiaries;
(n) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value
of their respective properties and as is customary for companies
engaged in similar businesses in similar industries;
(o) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights and licenses necessary for the
conduct of their respective businesses and have no reason to believe
that the conduct of their respective businesses will conflict with,
and have not received any notice of any claim of conflict with, any
such rights of others;
(p) Except as described 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 or assets of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, might
have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; to the best of the
Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, and
all descriptions of legal proceedings contained in the Prospectus are
complete and accurate in all material respects;
(q) 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 Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations;
(r) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other
hand, which is required to be described in the Prospectus which is
not so described;
(s) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which might be
expected to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries;
(t) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code");
and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause
the loss of such qualification;
(u) The Company has filed all federal, state and local income
and franchise tax returns required to be filed through the date
hereof and has paid all taxes due thereon, and no tax deficiency has
been determined adversely to the Company or any of its subsidiaries
which has had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of
its subsidiaries, might have) a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries;
(v) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock;
(w) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing
assets at reasonable intervals;
(x) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject or (iii)
in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business;
(y) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the
knowledge of the Company, any of its predecessors in interest) at,
upon or from any of the property now or previously owned or leased by
the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or
which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action which would not have, or
could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a material
adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of
any kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company or any
of its subsidiaries or with respect to which the Company or any of
its subsidiaries have knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release
which would not have or would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries; and the terms "hazardous wastes",
"toxic wastes", "hazardous substances" and "medical wastes" shall
have the meanings specified in any applicable local, state, federal
and foreign laws or regulations with respect to environmental
protection; and
(z) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
2. Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder severally represents, warrants and
agrees that:
(a) The Selling Stockholder has, and immediately prior to the
First Delivery Date (as defined in Section 5 hereof) the Selling
Stockholder will have, good and valid title to the shares of Stock to
be sold by the Selling Stockholder hereunder and under the U.S.
Underwriting Agreement on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such shares
and payment therefor pursuant hereto and thereto, good and valid
title to such shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several International Managers
and U.S. Underwriters;
(b) The Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement" and, together with all
other similar agreements executed by the other Selling Stockholders,
the "Custody Agreements") with [insert name of custodian], as
custodian (the "Custodian"), for delivery under this Agreement and
under the U.S. Underwriting Agreement, certificates in negotiable
form (with signature guaranteed by a commercial bank or trust company
having an office or correspondent in the United States or a member
firm of the New York or American Stock Exchanges) representing the
shares of Stock to be sold by the Selling Stockholder hereunder;
(c) The Selling Stockholder has duly and irrevocably executed
and delivered a power of attorney (the "Power of Attorney" and,
together with all other similar agreements executed by the other
Selling Stockholders, the "Powers of Attorney") appointing the
Custodian and one or more other persons, as attorneys-in-fact, with
full power of substitution, and with full authority (exercisable by
any one or more of them) to execute and deliver this Agreement and to
take such other action as may be necessary or desirable to carry out
the provisions hereof on behalf of the Selling Stockholder;
(d) The Selling Stockholder has full right, power and authority
to enter into this Agreement and the U.S. Underwriting Agreement, the
Power of Attorney and the Custody Agreement; the execution, delivery
and performance of this Agreement, the U.S. Underwriting Agreement,
the Power of Attorney and the Custody Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of the
transactions contemplated hereby and thereby will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Selling Stockholder is a party or by which the Selling Stockholder is
bound or to which any of the property or assets of the Selling
Stockholder is subject, nor will such actions result in any violation
of the provisions of the charter or by-laws of the Selling
Stockholder (with respect to a Selling Stockholder that is a
corporation) or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Selling Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state or foreign securities laws in connection
with the purchase and distribution of the Stock by the International
Managers and U.S. Underwriters, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement or the U.S. Underwriting Agreement,
the Power of Attorney or the Custody Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of the
transactions contemplated hereby and thereby;
(e) The Registration Statement and the Prospectus and any
further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, 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 that no representation or warranty
is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Lead Managers by or on behalf of any International Manager
specifically for inclusion therein;
(f) The Selling Stockholder has no reason to believe that the
representations and warranties of the Company and the Selling
Stockholders contained in Section 1 hereof are not materially true
and correct, is familiar with the Registration Statement and the
Prospectus (as amended or supplemented) and has no knowledge of any
material fact, condition or information not disclosed in the
Registration Statement, as of the Effective Date, or the Prospectus
(or any amendment or supplement thereto), as of the applicable filing
date, which has adversely affected or may adversely affect the
business of the Company and is not prompted to sell shares of Common
Stock by any information concerning the Company which is not set
forth in the Registration Statement and the Prospectus; and
(g) The 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 the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the shares of the
Stock.
3. Purchase of the Stock by the International Managers. On the
basis of the representations and warranties contained in, and subject to
the terms and conditions of, this Agreement, the Company agrees to sell
_______ shares of the Firm Stock and each Selling Stockholder hereby
agrees to sell the number of shares of the Firm Stock set forth opposite
such Selling Stockholder's name in Schedule 2 hereto, severally and not
jointly, to the several International Managers, and each of the
International Managers, severally and not jointly, agrees to purchase the
number of shares of the Firm Stock set forth opposite that International
Manager's name in Schedule 1 hereto. Each International Manager shall be
obligated to purchase from the Company, and from each Selling Stockholder,
that number of shares of the Firm Stock which represents the same
proportion of the number of shares of the Firm Stock to be sold by the
Company, and by each Selling Stockholder, as the number of shares of the
Firm Stock set forth opposite the name of such International Manager in
Schedule 1 represents of the total number of shares of the Firm Stock to
be purchased by all of the International Managers pursuant to this
Agreement. The respective purchase obligations of the International
Managers with respect to the Firm Stock shall be rounded among the
International Managers to avoid fractional shares, as the Lead Managers
may determine.
In addition, the Selling Stockholders grant to the International
Managers an option to purchase up to _______ shares of Option Stock. Such
option is granted solely for the purpose of covering over-allotments in
the sale of Firm Stock and is exercisable as provided in Section 5 hereof.
Shares of Option Stock shall be purchased severally for the account of the
International Managers in proportion to the number of shares of Firm Stock
set forth opposite the name of such International Managers in Schedule 1
hereto. The respective purchase obligations of each International Manager
with respect to the Option Stock shall be adjusted by the Lead Managers so
that no International Manager shall be obligated to purchase Option Stock
other than in 100 share amounts. The price of both the Firm Stock and any
Option Stock shall be $_____ per share.
The Company and the Selling Stockholders shall not be obligated to
deliver any of the Stock to be delivered on the First Delivery Date or the
Second Delivery Date (as hereinafter defined), as the case may be, except
upon payment for all the Stock to be purchased on such Delivery Date as
provided herein and in the U.S. Underwriting Agreement.
4. Offering of Stock by the International Managers.
Upon authorization by the Lead Managers of the release of the Firm
Stock, the several International Managers propose to offer the Firm Stock
for sale upon the terms and conditions set forth in the Prospectus.
Each International Manager agrees that, except to the extent
permitted by the Agreement Between U.S. Underwriters and International
Managers, it will not offer or sell any of the Stock in the United States
or in Canada.
5. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the office of Xxxxxx Brothers Inc.,
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M.,
New York City time, on the third (fourth, if pricing occurs after 4:30
p.m. New York City time) full business day following the date of this
Agreement or at such other date or place as shall be determined by
agreement between the Lead Managers and the Company. This date and time
are sometimes referred to as the "First Delivery Date." On the First
Delivery Date, the Company and the Selling Stockholders shall deliver or
cause to be delivered certificates representing the Firm Stock to the Lead
Managers for the account of each International Manager against payment to
or upon the order of the Company and the Selling Stockholders of the
purchase price by wire transfer of immediately available funds. Time
shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of
each International Manager hereunder. Upon delivery, the Firm Stock shall
be registered in such names and in such denominations as the Lead Managers
shall request in writing not less than two full business days prior to the
First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Stock, the Company and the
Selling Stockholders shall make the certificates representing the Firm
Stock available for inspection by the Lead Managers in New York, New York,
not later than 2:00 P.M., New York City time, on the business day prior to
the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 3 may be exercised by written
notice being given to the Selling Stockholders by the Lead Managers. Such
notice shall set forth the aggregate number of shares of Option Stock as
to which the option is being exercised, the names in which the shares of
Option Stock are to be registered, the denominations in which the shares
of Option Stock are to be issued and the date and time, as determined by
the Lead Managers, when the shares of Option Stock are to be delivered;
provided, however, that this date and time shall not be earlier than the
First Delivery Date nor earlier than the second business day after the
date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been
exercised. The date and time the shares of Option Stock are delivered are
sometimes referred to as the "Second Delivery Date" and the First Delivery
Date and the Second Delivery Date are sometimes each referred to as a
"Delivery Date".
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this
Section 5 (or at such other place as shall be determined by agreement
between the Lead Managers and the Company) at 10:00 A.M., New York City
time, on the Second Delivery Date. On the Second Delivery Date, the
Selling Stockholders shall deliver or cause to be delivered the
certificates representing the Option Stock to the Lead Managers for the
account of each International Manager against payment to or upon the order
of the Selling Stockholders of the purchase price by wire transfer of
immediately available funds. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each International Manager hereunder. Upon
delivery, the Option Stock shall be registered in such names and in such
denominations as the Lead Managers shall request in the aforesaid written
notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Stock, the Selling Stockholders shall make the
certificates representing the Option Stock available for inspection by the
Lead Managers in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to the Second Delivery Date.
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Lead
Managers and to file such Prospectus pursuant to Rule 424(b) under
the Securities 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 Securities Act; to make no
further amendment or any supplement to the Registration Statement or
to the Prospectus except as permitted herein; to advise the Lead
Managers, 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 the Lead Managers with
copies thereof; to advise the Lead Managers, 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 the Prospectus, of the suspension of the
qualification of the Stock 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 the 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 the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to each of the Lead Managers and to
counsel for the International Managers a signed copy of the
Registration Statement as originally filed with the Commission, and
each amendment thereto filed with the Commission, including all
consents and exhibits filed therewith;
(c) To deliver promptly to the Lead Managers such number of the
following documents as the Lead Managers shall reasonably request:
(i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the computation of
per share earnings) and (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required at any time after the Effective
Time in connection with the offering or sale of the Stock or any
other securities relating thereto and if at such time any events
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to
amend or supplement the Prospectus in order to comply with the
Securities Act, to notify the Lead Managers and, upon their request,
to prepare and furnish without charge to each International Manager
and to any dealer in securities as many copies as the Lead Managers
may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission
or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Lead
Managers, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to
furnish a copy thereof to the Lead Managers and counsel for the
International Managers and obtain the consent of the Lead Managers to
the filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 455 days after
the end of the Company's current fiscal quarter), to make generally
available to the Company's security holders and to deliver to the
Lead Managers an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Lead Managers copies of all materials furnished by the
Company to its shareholders and all public reports and all reports
and financial statements furnished by the Company to the principal
national securities exchange upon which the Common Stock may be
listed pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Lead
Managers may reasonably request to qualify the Stock for offering and
sale under the securities laws of such jurisdictions as the Lead
Managers 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
Stock; provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(i) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition by
any person at any time in the future of) any shares of Common Stock
or securities convertible into or exchangeable for Common Stock
(other than the Stock and shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee compensation
plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options,
rights or warrants with respect to any shares of Common Stock or
securities convertible into or exchangeable for Common Stock (other
than the grant of options pursuant to option plans existing on the
date hereof), or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case without the prior
written consent of Xxxxxx Brothers International (Europe); and to
cause each officer, director and stockholder of the Company to
furnish to the Lead Managers, prior to the First Delivery Date, a
letter or letters, in form and substance satisfactory to counsel for
the International Managers, pursuant to which each such person shall
agree not to, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) any shares of
Common Stock or securities convertible into or exchangeable for
Common Stock or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case for a period of 180
days from the date of the Prospectus, without the prior written
consent of Xxxxxx Brothers International (Europe);
(j) Prior to the Effective Date, to apply for the listing of
the Stock on the New York Stock Exchange, Inc. and to use its best
efforts to complete that listing, subject only to official notice of
issuance and evidence of satisfactory distribution, prior to the
First Delivery Date;
(k) Prior to filing with the Commission any reports on Form SR
pursuant to Rule 463 of the Rules and Regulations, to furnish a copy
thereof to the counsel for the International Managers and receive and
consider its comments thereon, and to deliver promptly to the Lead
Managers a signed copy of each report on Form SR filed by it with the
Commission;
(l) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus; and
(m) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment
company" within the meaning of such term under the United States
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
7. Further Agreements of the Selling Stockholders. Each Selling
Stockholder agrees:
(a) For a period of 180 days from the date of the Prospectus,
not to, directly or indirectly, (1) offer for sale, sell, pledge or
otherwise dispose of (or enter into any transaction or device which
is designed to, or could be expected to, result in the disposition by
any person at any time in the future of) any shares of Common Stock
or securities convertible into or exchangeable for Common Stock
(other than the Stock) or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock
or other securities, in cash or otherwise, in each case without the
prior written consent of Xxxxxx Brothers International (Europe).;
(b) That the Stock to be sold by the Selling Stockholder
hereunder, which is represented by the certificates held in custody
for the Selling Stockholder, is subject to the interest of the
International Managers and the other Selling Stockholders thereunder,
that the arrangements made by the Selling Stockholder for such
custody are to that extent irrevocable, and that the obligations of
the Selling Stockholder hereunder shall not be terminated by any act
of the Selling Stockholder, by operation of law, by the death or
incapacity of any individual Selling Stockholder or, in the case of a
trust, by the death or incapacity of any executor or trustee or the
termination of such trust, or the occurrence of any other event; and
(c) To deliver to the Lead Managers prior to the First Delivery
Date a properly completed and executed United States Treasury
Department Form W-8 (if the Selling Stockholder is a non-United
States person) or Form W-9 (if the Selling Stockholder is a United
States person.)
8. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits),
any Preliminary Prospectus, the Prospectus and any amendment or supplement
to the Prospectus, all as provided in this Agreement; (d) the costs of
producing and distributing this Agreement, the U.S. Underwriting
Agreement, the Agreement Between U.S. Underwriters and International
Managers, any Supplemental Agreement Among U.S. Underwriters and any other
related documents in connection with the offering, purchase, sale and
delivery of the Stock; (e) the costs of delivering and distributing the
Custody Agreements and the Powers of Attorney; (f) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Stock; (g) any
applicable listing or other fees; (h) the fees and expenses of qualifying
the Stock under the securities laws of the several jurisdictions as
provided in Section 6(h) and of preparing, printing and distributing a
Blue Sky Memorandum (including related fees and expenses of counsel to the
International Managers); and (i) all other costs and expenses incident to
the performance of the obligations of the Company and the Selling
Stockholders under this Agreement; provided that, except as provided in
this Section 8 and in Section 13, the International Managers shall pay
their own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Stock which they may sell and the
expenses of advertising any offering of the Stock made by the
International Managers.
9. Conditions of International Managers' Obligations. The
respective obligations of the International Managers hereunder are subject
to the accuracy, when made and on each Delivery Date, of the
representations and warranties of the Company and the Selling Stockholders
contained herein, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a); 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 any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with;
(b) No International Manager shall have discovered and
disclosed to the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of a fact which, in
the opinion of Xxxxx, Xxxxx & Xxxxx, counsel for the International
Managers, is material or omits to state a fact which, in the opinion
of such counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading;
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the U.S.
Underwriting Agreement, the Custody Agreements, the Powers of
Attorney, the Stock, the Registration Statement and the Prospectus,
and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in
all material respects to counsel for the International Managers, and
the Company and the Selling Stockholders shall have furnished to such
counsel all documents and information that they may reasonably
request to enable them to pass upon such matters;
(d) Xxxxx & Xxxxxxx shall have furnished to the Lead Managers
its written opinion, as counsel to the Company, addressed to the
International Managers and dated such Delivery Date, in form and
substance reasonably satisfactory to the Lead Managers, to the effect
that:
(i) The Company and each of its subsidiaries have been
duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in
good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification and have all power and authority necessary to own
or hold their respective properties and to conduct the
businesses in which they are engaged;
(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 of Stock being
delivered on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus;
and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and (except for directors'
qualifying shares and except as set forth in the Prospectus) are
owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities and claims;
(iii) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock pursuant to the Company's
charter or by-laws or any agreement or other instrument known to
such counsel;
(iv) The Company and each of its subsidiaries have good
and marketable title in fee simple to all real property owned by
them, free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not
materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and all
real property and buildings held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and
do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(v) To the best of such counsel's knowledge after
reasonable inquiry and other than as set forth in the
Prospectus, (A) 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 or assets of the Company or any
of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, might have
a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business
or prospects of the Company and its subsidiaries; (B) no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and (C) all descriptions of
such proceedings contained in the Prospectus are complete and
accurate in all material respects;
(vi) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of
such counsel after reasonable inquiry, no proceeding for that
purpose is pending or threatened by the Commission;
(vii) The Registration Statement and the Prospectus and
any further amendments or supplements thereto made by the
Company prior to such Delivery Date (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and the Rules and Regulations;
(viii) The statements contained in the Prospectus under the
captions "Description of Capital Stock', "Shares Eligible for
Future Sale" and "Business - Legal Proceedings", insofar as they
describe federal statutes, rules and regulations, constitute a
fair summary thereof;
(ix) To the best of such counsel's knowledge after
reasonable inquiry, 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 Securities Act or
by the Rules and Regulations which have not been described or
filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by the Rules and Regulations;
(x) This Agreement and the U.S. Underwriting Agreement
have each been duly authorized, executed and delivered by the
Company;
(xi) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the U.S. Underwriting Agreement and the
consummation of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel (after reasonable
inquiry) to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-
laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation known to such counsel (after
reasonable inquiry) of any court or governmental agency or body
having jurisdiction over the Company or any of subsidiaries or
any of their properties or assets; and, except for the
registration of the Stock under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with
the purchase and distribution of the Stock by the International
Managers and U.S. Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the
U.S. Underwriting Agreement by the Company and the consummation
of the transactions contemplated hereby and thereby;
(xii) To the best of such counsel's knowledge after
reasonable inquiry, there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities
Act; and
(xiii) The Company owns or possesses adequate rights to use
all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx
registrations, copyrights and licenses necessary for the conduct
of its respective businesses and, except as disclosed in the
Prospectus, no claims have been asserted by any person or are
pending or threatened before any court or governmental agency
challenging the Company's use of material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and
licenses or alleging that the conduct of the Company's and its
subsidiaries' respective businesses conflicts with any such
rights of others.
In rendering such opinion, such counsel may state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, and the laws of the State of Wisconsin,
including the Wisconsin Business Corporation Law. Such counsel shall
also have furnished to the Lead Managers a written statement,
addressed to the International Managers and dated such Delivery Date,
in form and substance satisfactory to the Lead Managers, to the
effect that (x) such counsel has acted as counsel to the Company on a
regular basis (although the Company is also represented by its
General Counsel), has acted as counsel to the Company in connection
with previous financing transactions, and has acted as counsel to the
Company in connection with the preparation of the Registration
Statement, and (y) based on the foregoing, no facts have come to the
attention of such counsel which lead it to believe that the
Registration Statement, as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus contains
any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The foregoing opinion and statement may
be qualified by a statement to the effect that such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus except for the statements made in the Prospectus under the
captions "Description of Capital Stock", "Shares Eligible for Future
Sale" and "Business - Legal Proceedings", insofar as such statements
relate to the Stock and concern legal matters;
(e) Xxxxx & Xxxxxxx, the counsel for the Selling Stockholders,
shall have furnished to the Lead Managers its written opinion, as
counsel to the Selling Stockholders, addressed to the International
Managers and dated such Delivery Date, in form and substance
reasonably satisfactory to the Lead Managers, to the effect that:
(i) Each Selling Stockholder has full right, power and
authority to enter into this Agreement and the U.S. Underwriting
Agreement , the Power of Attorney and the Custody Agreement; the
execution, delivery and performance of this Agreement and the
U.S. Underwriting Agreement, the Power of Attorney and the
Custody Agreement by each Selling Stockholder and the
consummation by each Selling Stockholder of the transactions
contemplated hereby and thereby 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, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which any Selling
Stockholder is a party or by which any Selling Stockholder is
bound or to which any of the property or assets of any Selling
Stockholder is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of any
Selling Stockholder that is a corporation, or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over any Selling
Stockholder or the property or assets of any Selling
Stockholder; and, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Stock by
the International Managers and the U.S. Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this
Agreement or the U.S. Underwriting Agreement, the Power of
Attorney or the Custody Agreement by any Selling Stockholder and
the consummation by any Selling Stockholder of the transactions
contemplated hereby and thereby;
(ii) This Agreement and the U.S. Underwriting Agreement
have each been duly authorized, executed and delivered by or on
behalf of each Selling Stockholder;
(iii) A Power-of-Attorney and a Custody Agreement have
been duly authorized, executed and delivered by each Selling
Stockholder and constitute valid and binding agreements of each
Selling Stockholder, enforceable in accordance with their
respective terms;
(iv) Immediately prior to such Delivery Date, each Selling
Stockholder had good and valid title to the shares of Stock to
be sold by such Selling Stockholder under this Agreement and the
U.S. Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and
authority to sell, assign, transfer and deliver such shares to
be sold by such Selling Stockholder hereunder and thereunder;
and
(v) Good and valid title to the shares of Stock to be sold
by each Selling Stockholder under this Agreement and the U.S.
Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims, has been transferred to each
of the several International Managers and U.S. Underwriters.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the
United States of America, the laws of the State of Wisconsin and the
laws of the jurisdiction in which each Selling Stockholder is a
resident, if an individual, or organized, if a corporation, and (ii)
in rendering the opinion in Section 9(e)(iv) above, rely upon a
certificate of each Selling Stockholder in respect of matters of fact
as to ownership of and liens, encumbrances, equities or claims on the
shares of Stock sold by such Selling Stockholder, provided that such
counsel shall furnish copies thereof to the Lead Managers and state
that it believes that both the International Managers and it are
justified in relying upon such certificates. Such counsel shall also
have furnished to the Lead Managers a written statement, addressed to
the International Managers and dated such Delivery Date, in form and
substance satisfactory to the Lead Managers, to the effect that (x)
such counsel has acted as counsel to each Selling Stockholder on a
regular basis and has acted as counsel to each Selling Stockholder in
connection with the preparation of the Registration Statement, and
(y) based on the foregoing, no facts have come to the attention of
such counsel which lead it to believe that the Registration
Statement, as of the Effective Date, contained any untrue statement
of a material fact relating to any Selling Stockholder or omitted to
state such a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus contains any untrue statement of a material fact relating
to any Selling Stockholder or omits to state such a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The foregoing opinion and statement may
be qualified by a statement to the effect that such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus;
(f) The Lead Managers shall have received from Xxxxx, Xxxxx &
Xxxxx, counsel for the International Managers, such opinion or
opinions, dated such Delivery Date, with respect to the issuance and
sale of the Stock, the Registration Statement, the Prospectus and
other related matters as the Lead Managers may reasonably require,
and the Company shall have furnished to such counsel such documents
as they reasonably request for the purpose of enabling them to pass
upon such matters;
(g) At the time of execution of this Agreement, the Lead
Managers shall have received from Xxxxxx Xxxxxxxx LLP a letter, in
form and substance satisfactory to the Lead Managers, addressed to
the International Managers and dated the date hereof (i) confirming
that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of
the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not
more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings;
(h) With respect to the letter of Xxxxxx Xxxxxxxx LLP referred
to in the preceding paragraph and delivered to the Lead Managers
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Lead Managers a
letter (the "bring-down letter") of such accountants, addressed to
the International Managers and dated such Delivery Date
(i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the conclusions
and findings set forth in the initial letter;
(i) The Company shall have furnished to the Lead Managers a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer
stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery Date; the
Company has complied with all its agreements contained herein; and the
conditions set forth in Sections 9(a) and 9(k) have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue statement
of a material fact and did not omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and (B) since the Effective Date no event has occurred which
should have been set forth in a supplement or amendment to the
Registration Statement or the Prospectus;
(j) Each Selling Stockholder (or the Custodian or one or more
attorneys-in-fact on behalf of the Selling Stockholders) shall have
furnished to the Lead Managers on such Delivery Date a certificate,
dated such Delivery Date, signed by, or on behalf of, each Selling
Stockholder (or the Custodian or one or more attorneys-in-fact)
stating that the representations, warranties and agreements of each
such Selling Stockholder contained herein are true and correct as of
such Delivery Date and that each Selling Stockholder has complied
with all agreements contained herein to be performed by each Selling
Stockholder at or prior to such Delivery Date;
(k) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date 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 Lead Managers, so material and adverse as
to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus;
(l) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or
there shall have been a declaration of a national emergency or war by
the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets
in the United States shall be such) as to make it, in the judgment of
a majority in interest of the several International Managers,
impracticable or inadvisable to proceed with the public offering or
delivery of the Stock being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus;
(m) The New York Stock Exchange, Inc. shall have approved the
Stock for listing, subject only to official notice of issuance and
evidence of satisfactory distribution; and
(n) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the First
Delivery Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the International Managers.
10. Indemnification and Contribution.
(a) The Company and the Selling Shareholders, jointly and
severally, shall indemnify and hold harmless each International
Manager, its officers and employees and each person, if any, who
controls any International Manager within the meaning of the
Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which that
International Manager, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other
document prepared or executed by the Company (or based upon any
written information furnished by the Company) specifically for the
purpose of qualifying any or all of the Stock under the securities
laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus,
or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any
International Manager in connection with, or relating in any manner
to, the Stock or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company shall not be
liable under this clause (iii) to the extent that it is determined in
a final judgment by a court of competent jurisdiction that such loss,
claim, damage, liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be taken by such
International Manager through its gross negligence or willful
misconduct), and shall reimburse each International Manager and each
such officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by that International
Manager, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action 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,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any Blue
Sky Application, in reliance upon and in conformity with written
information concerning such International Manager furnished to the
Company through the Lead Managers by or on behalf of any
International Manager specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which
the Company may otherwise have to any International Manager or to any
officer, employee or controlling person of that International
Manager.
(b) Each International Manager, severally and not jointly,
shall indemnify and hold harmless the Company, its officers and
employees, each of its directors, and each person, if any, who
controls the Company within the meaning of the Securities Act, and
the Selling Stockholders from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to
which the Company or any such director, officer or controlling person
may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the
omission or alleged omission to state in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information concerning such International Manager furnished to the
Company through the Lead Managers by or on behalf of that
International Manager specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any International Manager may
otherwise have to the Company or any such director, officer, employee
or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 10, notify the
indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have under this Section 10 except to the extent it has been
materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise
than under this Section 10. If any such claim or action shall be
brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim
or action, the indemnifying party shall not be liable to the
indemnified party under this Section 10 for any legal or other
expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of
investigation; provided, however, that the Lead Managers shall have
the right to employ counsel to represent jointly the Lead Managers
and those other International Managers and their respective officers,
employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought
by the International Managers against the Company or any Selling
Stockholder under this Section 10 if, in the reasonable judgment of
the Lead Managers, it is advisable for the Lead Managers and those
International Managers, officers, employees and controlling persons
to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the
Company or Selling Stockholders. No indemnifying party shall
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or
compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement of
any such action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 10
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 10(a) or 10(b) in respect
of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the one hand
and the International Managers on the other from the offering of the
Stock or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the International Managers on the
other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the
one hand and the International Managers on the other with respect to
such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Stock purchased under
this Agreement (before deducting expenses) received by the Company
and the Selling Stockholders, on the one hand, and the total
underwriting discounts and commissions received by the International
Managers with respect to the shares of the Stock purchased under this
Agreement, on the other hand, bear to the total gross proceeds from
the offering of the shares of the Stock under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders or the
International Managers, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Selling
Stockholders and the International Managers agree that it would not
be just and equitable if contributions pursuant to this Section 10(d)
were to be determined by pro rata allocation (even if the
International Managers were treated as one entity for such purpose)
or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above
in this Section 10(d) shall be deemed to include, for purposes of
this Section 10(d), 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 Section 10(d), no International Manager shall be required to
contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages
which such International Manager has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The
International Managers' obligations to contribute as provided in this
Section 10(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The International Managers severally confirm and the
Company and Selling Stockholders acknowledge that the statements with
respect to the public offering of the Stock by the International
Managers set forth on the cover page of, the legend concerning over-
allotments on the inside front cover page of and the concession and
reallowance figures appearing under the caption "Underwriting" in,
the Prospectus are correct and constitute the only information
concerning such International Managers furnished in writing to the
Company and Selling Stockholders by or on behalf of the International
Managers specifically for inclusion in the Registration Statement and
the Prospectus.
11. Defaulting International Managers.
If, on either Delivery Date, any International Manager defaults in
the performance of its obligations under this Agreement, the remaining
non-defaulting International Managers shall be obligated to purchase the
Stock which the defaulting International Manager agreed but failed to
purchase on such Delivery Date in the respective proportions which the
number of shares of the Firm Stock set opposite the name of each remaining
non-defaulting International Manager in Schedule 1 hereto bears to the
total number of shares of the Firm Stock set opposite the names of all the
remaining non-defaulting International Managers in Schedule 1 hereto;
provided, however, that the remaining non-defaulting International
Managers shall not be obligated to purchase any of the Stock on such
Delivery Date if the total number of shares of the Stock which the
defaulting International Manager or International Managers agreed but
failed to purchase on such date exceeds 9.09% of the total number of
shares of the Stock to be purchased on such Delivery Date, and any
remaining non-defaulting International Manager shall not be obligated to
purchase more than 110% of the number of shares of the Stock which it
agreed to purchase on such Delivery Date pursuant to the terms of Section
3. If the foregoing maximums are exceeded, the remaining non-defaulting
International Managers, or those other underwriters satisfactory to the
Lead Managers who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among
them, all the Stock to be purchased on such Delivery Date. If the
remaining International Managers or other underwriters satisfactory to the
Lead Managers do not elect to purchase the shares which the defaulting
International Manager or International Managers agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the
Second Delivery Date, the obligation of the International Managers to
purchase, and of the Selling Stockholders to sell, the Option Stock) shall
terminate without liability on the part of any non-defaulting
International Manager or the Company or the Selling Stockholders, except
that the Company will continue to be liable for the payment of expenses to
the extent set forth in Sections 8 and 13. As used in this Agreement, the
term "International Manager" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1
hereto who, pursuant to this Section 11, purchases Firm Stock which a
defaulting International Manager agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company and the Selling
Stockholders for damages caused by its default. If other underwriters are
obligated or agree to purchase the Stock of a defaulting or withdrawing
International Manager, either the Lead Managers or the Company may
postpone the Delivery Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or
counsel for the International Manager may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
12. Termination. The obligations of the International Managers
hereunder may be terminated by the Lead Managers by notice given to and
received by the Company and the Selling Stockholders prior to delivery of
and payment for the Firm Stock if, prior to that time, any of the events
described in Sections 9(k) or 9(l) shall have occurred or if the
International Managers shall decline to purchase the Stock for any reason
permitted under this Agreement.
13. Reimbursement of International Managers' Expenses. If (a) the
Company or any Selling Stockholder shall fail to tender the Stock for
delivery to the International Manager by reason of any failure, refusal or
inability on the part of the Company or the Selling Stockholders to
perform any agreement on its part to be performed, or because any other
condition of the International Managers' obligations hereunder required to
be fulfilled by the Company or the Selling Stockholders is not fulfilled,
the Company and the Selling Stockholders will reimburse the International
Managers for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the International Managers in
connection with this Agreement and the proposed purchase of the Stock, and
upon demand the Company and the Selling Stockholders shall pay the full
amount thereof to the Lead Managers. If this Agreement is terminated
pursuant to Section 11 by reason of the default of one or more
International Managers, neither the Company nor any Selling Stockholder
shall be obligated to reimburse any defaulting International Manager on
account of those expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx Brothers
International (Europe), Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax: 000-000-0000),
with a copy, in the case of any notice pursuant to Section 10(c), to
the Director of Litigation, Office of the General Counsel, Xxxxxx
Brothers International (Europe), 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000;
(b) 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: [_________] (Fax:
_________);
(c) if to any Selling Stockholder, shall be delivered or sent
by mail, telex or facsimile transmission to such Selling Stockholder
at the address set forth on Schedule 2 hereto;
provided, however, that any notice to an International Manager pursuant to
Section 10(c) shall be delivered or sent by mail, telex or facsimile
transmission to such International Manager at its address set forth in its
acceptance telex to the Lead Managers, which address will be supplied to
any other party hereto by the Lead Managers upon request. Any such
statements, requests, notices or agreements shall take effect at the time
of receipt thereof. The Company and the Selling Stockholders shall be
entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the International Managers by Xxxxxx Brothers
International (Europe) on behalf of the Lead Managers, and the Company and
the International Managers shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the
Selling Stockholders by the Custodian.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the International Managers,
the Company, the Selling Stockholders and their respective personal
representatives and successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except
that (A) the representations, warranties, indemnities and agreements of
the Company and the Selling Stockholders contained in this Agreement shall
also be deemed to be for the benefit of the person or persons, if any, who
control any International Manager within the meaning of Section 15 of the
Securities Act and for the benefit of each U.S. Underwriter (and
controlling persons thereof) who offers or sells any shares of Common
Stock in accordance with the terms of the Agreement Between U.S.
Underwriters and International Managers and (B) the indemnity agreement of
the International Managers contained in Section 10(b) of this Agreement
shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this
Section 15, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Stockholders and
the International Managers contained in this Agreement or made by or on
behalf on them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Stock and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
17. Definition of the Term "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the
New York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has
the meaning set forth in Rule 405 of the Rules and Regulations.
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement, among the
Company, the Selling Stockholders and the International Managers, please
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
HK Systems, Inc.
By
Name
Title
The Selling Stockholders named in
Schedule 2 to this Agreement
By
Attorney-in-Fact
Accepted:
Xxxxxx Brothers International (Europe)
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxx Xxxx LLC
For themselves and as Lead Managers
of the several International Managers named
in Schedule 1 hereto
By Xxxxxx Brothers International (Europe)
By
Authorized Lead Manager
By Xxxxxx X. Xxxxx & Co. Incorporated
By
Authorized Lead Manager
By Xxxxxx Xxxx LLC
By
Authorized Lead Manager
SCHEDULE 1
Number of
International Managers Shares
Xxxxxx Brothers International (Europe)
Xxxxxx X. Xxxxx & Co. Incorporated . . .
Xxxxxx Xxxx LLC. . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . =========
SCHEDULE 2
Number of Shares
Name and Address of Selling Stockholders of Firm Stock
Total . . . . . . . . . . . . . . . . . . . . . =============
