THE XXXXX XXXXXX COMPANIES INC.
Class A Common Stock
(par value $.01 per share)
----------------------
Underwriting Agreement
(U.S. Version)
----------------------------
June __, 1998
Xxxxxxx, Sachs & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
X.X. Xxxxxx Securities Inc.,
SBC Warburg Dillon Read Inc.
As representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders of The Xxxxx Xxxxxx Companies Inc., a Delaware
corporation (the "Company"), named in Schedule II hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 3,224,800 shares (the "Firm Shares"), and at the election of the
Underwriters, up to 483,720 additional shares (the "Optional Shares") of Class
A Common Stock, par value $.01 per share ("Stock"), of the Company. The Firm
Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "Shares".
It is understood and agreed to by all parties that the Company and
the Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Selling
Stockholders of up to a total of 927,130 shares of Stock (the "International
Shares"), including the overallotment option thereunder, through arrangements
with certain underwriters outside the United States (the "International
Underwriters") for whom Xxxxxxx Xxxxx International, Xxxxxxx Xxxxx
International, X.X. Xxxxxx Securities Ltd. and Swiss Bank Corporation, acting
through its division SBC Warburg Dillon Read are acting as lead managers.
Anything herein or therein to the contrary notwithstanding, the respective
closings under this Agreement and the International Underwriting Agreement are
hereby expressly made conditional on one another. The Underwriters hereunder
and the International Underwriters are simultaneously entering into an
Agreement between U.S. and International Underwriting Syndicates (the
"Agreement between Syndicates") which provides, among other things, for the
transfer of shares of Stock between the two syndicates. Two
forms of prospectus are to be used in connection with the offering and sale of
shares of Stock contemplated by the foregoing, one relating to the Shares
hereunder and the other relating to the International Shares. The latter form
of prospectus will be identical to the former except for certain substitute
pages as included in the registration statement and amendments thereto as
mentioned below. Except as used in Sections 2, 3, 4, 9 and 11 herein, and
except as the context may otherwise require, references hereinafter to the
Shares shall include all the shares of Stock which may be sold pursuant to
either this Agreement or the International Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-52609)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, but including all
documents incorporated by reference in the prospectus contained
therein, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"),
which became effective upon filing, no other document with respect to
the Initial Registration Statement or document incorporated by
reference therein has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act,
is hereinafter called a "Preliminary Prospectus"; the various parts
of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including (i) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof and deemed by virtue
of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective and (ii) the documents incorporated by reference in
the prospectus contained in the registration statement at the time
such part of the registration statement became effective, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"); any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such
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Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein;
(iii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and the Registration Statement and any
amendment thereto do not and will not, as of the applicable effective
date, 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 and the Prospectus does not,
and as amended or supplemented will not, as of the applicable filing
date, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein;
(v) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in
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the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, in
each case, otherwise than as set forth or contemplated in the
Prospectus;
(vi) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries or such as do not and would not, individually or in the
aggregate, have a material adverse effect on the business, prospects,
operations, financial condition or results of operations of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"); and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries or such as
do not and would not, individually or in the aggregate, have a
Material Adverse Effect;
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except
where failure to be so qualified would not have a Material Adverse
Effect; and each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, except where failure to be
in such good standing would not have a Material Adverse Effect;
(viii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and conform to the description
of the Stock 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, are fully paid and
non-assessable and (except for directors' qualifying shares and as
disclosed in the Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(ix) The compliance by the Company with all of the provisions
of this Agreement and the International Underwriting Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
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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 action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of
the Company 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, except
for foreign and state securities and Blue Sky laws, and except for
breaches, violations or defaults (other than any relating to the
Certificate of Incorporation or By-laws of the Company) that would
not, individually or in the aggregate, have a Material Adverse Effect
or in the aggregate impair the Company's ability to consummate the
transactions herein contemplated; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement and the International Underwriting Agreement except the
registration under the Act of the Shares, the registration under the
Exchange Act of the Stock and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state or foreign securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters and
the International Underwriters;
(x) Neither the Company nor any of Xxxxx Xxxxxx Inc., Aramis
Inc., Clinique Laboratories, Inc., Xxxxx Xxxxxx International, Inc.,
Xxxxx Xxxxxx Cosmetics Ltd., Clinique Laboratories K.K., Xxxxx Xxxxxx
K.K., Xxxxx Xxxxxx N.V. and Xxxxx Xxxxxx A.G. Lachen (each, a
"Principal Subsidiary" and collectively, the "Principal
Subsidiaries") is in violation of its Certificate of Incorporation or
By-laws and neither the Company nor any of its subsidiaries is in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound, which default would have a Material Adverse
Effect;
(xi) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the caption
"Certain Relationships and Related Transactions" set forth in the
Company's proxy statement dated September 30, 1997 and incorporated
by reference into the Company's Annual Report on Form 10-K for the
year ended June 30, 1997, insofar as they purport to summarize the
provisions of the laws, documents and transactions referred to
therein for purposes of complying with the requirements of Form S-3,
are accurate and correct in all material respects;
(xii) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and,
to the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xiii) There are no contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed;
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(xiv) Each of the Company and its subsidiaries owns or has
rights to adequate foreign and domestic patents, patent licenses,
trademarks, service marks, trade names, inventions, copyrights and
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) (collectively, the "Intellectual Property") necessary to
carry on their respective businesses as of the date hereof, and
neither the Company nor any of its subsidiaries is aware that it
would interfere with, infringe upon or otherwise come into conflict
with any Intellectual Property rights of third parties as a result of
the operation of the business of the Company or any subsidiary as of
the date hereof that, individually or in the aggregate, if subject to
an unfavorable decision, ruling or finding would have a Material
Adverse Effect;
(xv) Except as disclosed in the Prospectus, there are no
holders of securities (debt or equity) of the Company or any of its
subsidiaries, or holders of rights (including, without limitation,
preemptive rights), warrants or options to obtain securities of the
Company or any of its subsidiaries, who have the right to request the
Company or any of its subsidiaries to register securities held by
them under the Act;
(xvi) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company"
or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
(xvii) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder.
(b) Each of the Selling Stockholders severally and not jointly,
solely with respect to himself, herself or itself, represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) With respect to each of the Xxxxx Xxxxxx Trust and the
Xxxx Xxxxxx Trust (each as defined below) only, such Selling
Stockholder has been duly created, is validly existing as a trust
under the laws of the jurisdiction of its organization and has the
power and authority to own and sell its property and to conduct its
business;
(ii) With respect to LAL Family Partners L.P. only, such
Selling Stockholder has been duly formed, is validly existing as a
limited partnership under the laws of the State of New York and has
the power and authority to own and sell its property and to conduct
its business;
(iii) No consent, approval, authorization or order of any
court or governmental agency or body is required to be obtained by
such Selling Stockholder for the execution and delivery by such
Selling Stockholder of this Agreement, the International Underwriting
Agreement, the Custody Agreement (and, if such Selling Stockholder's
name on Schedule II hereto is followed by an asterisk, the Power of
Attorney hereinafter referred to) and for the sale and delivery by
such Selling Stockholder of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement, except such as have been obtained, the registration of the
sale of such Shares under the Act, the registration under the
Exchange Act of the Stock, and such as may be required under foreign
and state securities and Blue Sky Laws; and such Selling Stockholder
has full right, power and authority to enter into this Agreement, the
International Underwriting Agreement, the Custody Agreement (and, if
6
such Selling Stockholder's name on Schedule II hereto is followed by
an asterisk, the Power of Attorney) and to sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder hereunder
and under the International Underwriting Agreement (subject to the
Custody Agreement, the Power of Attorney, if applicable, and the
Stockholders' Agreement, dated November 22, 1995, as amended, among
certain Lauder Family Members (as defined in the Registration
Statement));
(iv) The sale of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement and the compliance by such Selling Stockholder with all of
the obligations of such Selling Stockholder under this Agreement, the
International Underwriting Agreement, the Custody Agreement (and, if
such Selling Stockholder's name on Schedule II hereto is followed by
an asterisk, the Power of Attorney) and the consummation by such
Selling Stockholder of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default (A) in the case of each of LAL Family Partners L.P., the
Xxxxx Xxxxxx Trust and the Xxxx Xxxxxx Trust only, the constitutive
documents of such Selling Stockholder, or (B) under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound, or to which any of the property or
assets of such Selling Stockholder is subject, nor will such action
result in any violation of the provisions of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the property of
such Selling Stockholder, except that such Selling Stockholder makes
no representation under this paragraph as to the registration or
filing requirements or disclosure provisions of the securities laws
of the United States or the securities or Blue Sky laws of any other
jurisdiction;
(v) Such Selling Stockholder has, and immediately prior to
First Time of Delivery (as defined in Section 4 hereof) of such
Shares by such Selling Stockholder, such Selling Stockholder will
have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement, free and clear of all liens, encumbrances, equities or
claims; and, upon delivery of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement 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 be transferred by such Selling
Stockholder to the several Underwriters or the International
Underwriters, as the case may be;
(vi) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder or under the International
Underwriting Agreement, any securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially
similar securities (other than dispositions among Lauder Family
Members or pursuant to employee stock option plans and employment
agreements in each case existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as of,
the date of this Agreement, provided that this provision shall
continue to apply with respect to the securities received upon such
conversion or exchange) without your prior written consent;
7
(vii) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares;
(viii) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto are made in
reliance upon and in conformity with written information furnished to
the Company by such Selling Stockholder expressly for use therein,
such Preliminary Prospectus and the Registration Statement did, and
the Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(ix) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to
or at the First Time of Delivery of Shares by such Selling
Stockholder a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof);
(x) Such Selling Stockholder has duly executed and delivered a
custody agreement appointing ChaseMellon Shareholder Services, L.L.C.
as custodian (the "Custodian"), for the Shares being sold by such
Selling Stockholder (the "Custody Agreement"), and certificates in
negotiable form representing all of the Shares to be sold by such
Selling Stockholder hereunder and under the International
Underwriting Agreement have been deposited with and are being held by
the Custodian. If such Selling Stockholder's name on Schedule II
hereto is followed by an asterisk, such Selling Stockholder has duly
executed and delivered a Power of Attorney in the form heretofore
furnished to you (the "Power of Attorney"), appointing the person(s)
indicated in Schedule II hereto as such Selling Stockholder's
attorney(s)-in-fact (the "Attorney-in-Fact") with authority to
authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such Selling
Stockholder in connection with the transactions contemplated by this
Agreement and the International Underwriting Agreement to the extent
set forth in the Power of Attorney; and
(xi) The Shares represented by the certificates held in custody
for such Selling Stockholder under the Custody Agreement are subject
to the interests of the Underwriters hereunder and the International
Underwriters under the International Underwriting Agreement; the
arrangements made by such Selling Stockholder for such custody, and
the appointment by such Selling Stockholder of the Attorneys-in-Fact
by the Power of Attorney, are to that extent irrevocable; the
obligations of the Selling Stockholder hereunder shall not be
terminated by operation of law, whether by the death or incapacity of
such Selling Stockholder if an individual or, in the case of an
estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of
a partnership or corporation, by the dissolution of such partnership
or corporation, or by the occurrence of any other event; if any
8
individual Selling Stockholder or any such executor or trustee should
die or become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should be
dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of such Selling Stockholder
in accordance with the terms and conditions of this Agreement, the
International Underwriting Agreement and the Custody Agreement; and
actions taken by the Attorneys-in-Fact pursuant to the Power of
Attorney shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or
not the Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution
or other event.
2. Subject to the terms and conditions herein set forth, (a) each of
the Selling Stockholders agrees, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Stockholders, at a purchase
price per share of $_____, the number of Firm Shares (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares to be sold by each of the Selling Stockholders as set
forth opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the aggregate number of Firm
Shares to be purchased by all of the Underwriters from all of the Selling
Stockholders hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as
provided below, each of the Selling Stockholders agrees, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Selling Stockholders,
at the purchase price per share set forth in clause (a) of this Section 2,
that portion of the number of Optional Shares as to which such election shall
have been exercised (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying such number of Optional Shares by a fraction
the numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to
purchase hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule
II hereto, hereby grant, severally and not jointly, to the Underwriters the
right to purchase at their election up to 483,720 Optional Shares, at the
purchase price per share set forth in the paragraph above, for the sole
purpose of covering overallotments in the sale of the Firm Shares. Any such
election to purchase Optional Shares shall be made in proportion to the
maximum number of Optional Shares to be sold by each Selling Stockholder as
set forth in Schedule II hereto. Any such election to purchase Optional Shares
may be exercised only by written notice from you to the Attorneys-in-Fact,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you
but in no event earlier than the First Time of Delivery (as defined in Section
4 hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing,
earlier than two or later than ten business days after the date of such
notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
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4. (a) The Shares to be purchased by each Underwriter hereunder in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours'
prior notice to the Selling Stockholders, shall be delivered by or on behalf
of the Selling Stockholders to Xxxxxxx, Sachs & Co., for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer, payable to the order of each of the
Selling Stockholders, in Federal (same day) funds. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to each Time of Delivery with
respect thereto at the office of Xxxxxxx, Xxxxx & Co. or The Depository Trust
Company or its designated custodian, as the case may be (the "Designated
Office"). The time and date of such delivery and payment shall be (i) with
respect to the Firm Shares, 9:30 a.m., New York City time, on June __, 1998 or
such other time and date as Xxxxxxx, Sachs & Co. and the Selling Stockholders
may agree upon in writing, and (ii) with respect to the Optional Shares, 9:30
a.m., New York City time, on the date specified by Xxxxxxx, Xxxxx & Co. in the
written notice given by Xxxxxxx, Sachs & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as Xxxxxxx, Xxxxx &
Co. and the Selling Stockholders may agree upon in writing. Such time and date
for delivery of the Firm Shares is herein called the "First Time of Delivery",
such time and date for delivery of the Optional Shares, if not the First Time
of Delivery, is herein called the "Second Time of Delivery", and each such
time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), and the Shares will be delivered at the Designated
Office, all at each Time of Delivery. A meeting will be held at the Closing
Location at 2:00 p.m., New York City time, on the New York Business Day next
preceding each Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New
York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior
to the last Time of Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; to advise you, promptly
after it receives notice thereof, of the issuance by the
10
Commission of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or suspending
any such qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
(c) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process, or take any action that would subject the
Company to any tax, in any jurisdiction;
(d) Prior to 12:00 noon, New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to use
its best efforts to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order
to comply with the Act or the Exchange Act, to notify you and upon your
request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a supplement
to the Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Shares at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as
many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
11
(f) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder and under the International Underwriting Agreement, any securities
of the Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans and employment
agreements, in each case, existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), or to file any registration statement with the Commission under
the Act relating to any such securities without your prior written consent;
(g) To make available to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public accountants)
and, to make available to its stockholders as soon as practicable after the
end of each of the first three quarters of each fiscal year (beginning with
the fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail; and
(h) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver
to you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission).
6. The Company and each of the Selling Stockholders covenant and
agree with one another and with the several Underwriters that (a) each Selling
Stockholder will pay or cause to be paid a pro rata share (based on the number
of Shares to be sold by such Selling Stockholder hereunder) of the following:
(i) the filing fees and fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Shares
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the
International Underwriting Agreement, the Agreement between Syndicates, the
Selling Agreements, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection
with the qualification of the Shares for offering and sale under state
securities laws as provided in Section 5(c) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; and (iv) the filing
fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; and (b) the Company will pay or cause to be paid: (i) the cost of
preparing stock certificates; (ii) the cost and charges of any transfer agent
or registrar; and (iii) all other costs and expenses incident to the
performance of its obligations hereunder which
12
are not otherwise specifically provided for in this Section 6; and (c) such
Selling Stockholder will pay or cause to be paid all costs and expenses
incident to the performance of such Selling Stockholder's obligations
hereunder which are not otherwise specifically provided for in this Section 6,
including (i) any fees and expenses of counsel for such Selling Stockholder,
(ii) such Selling Stockholder's pro rata share of the fees and expenses of the
Attorney-in-Fact and (iii) all expenses and taxes incident to the sale and
delivery of the Shares to be sold by such Selling Stockholder to the
Underwriters hereunder. In connection with clause (iii) of the preceding
sentence, Xxxxxxx, Sachs & Co. agrees to pay New York State stock transfer
tax, and each of the Selling Stockholders agrees to reimburse Xxxxxxx, Xxxxx &
Co. for associated carrying costs if such tax payment is not rebated on the
day of payment and for any portion of such tax payment not rebated. It is
understood, however, that, except as provided in this Section 6, and Sections
8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale
of any of the Shares by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion,
to the condition that all representations and warranties and other statements
of the Company and the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such opinion or opinions (a draft of
each such opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii), (vi),
(ix) (including with respect to the caption "Underwriting") and (xii) of
subsection (c) below as well as such other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Weil, Gotshal & Xxxxxx, LLP counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(b) hereto), dated such Time of Delivery, in form and substance
reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly
13
and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform to the description of
the Stock contained in the Prospectus;
(iii) The Company is duly qualified to transact
business and in good standing under the laws of each other
jurisdiction where it owns or leases properties or conducts
any business so as to require such qualification, except where
the failure to be in good standing would not have a Material
Adverse Effect (such counsel being entitled to rely in respect
of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such opinions and certificates);
(iv) Each of the Principal Subsidiaries which is
incorporated in the United States ("U.S. Principal
Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation; and, to the best of such
counsel's knowledge, all of the issued shares of capital stock
of each U.S. Principal Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances or claims;
(v) To such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending or overtly threatened against the Company
or any of its subsidiaries or involving the Company or any of
its subsidiaries or any property of the Company or any of its
subsidiaries which would be required to be disclosed in the
Prospectus;
(vi) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by
the Company;
(vii) The compliance by the Company with all of the
provisions of this Agreement and the International
Underwriting Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel 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, and that is material to the Company and its
subsidiaries taken as a whole, nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any New York,
Delaware corporate or Federal law, rule or regulation (other
than foreign and state securities or Blue Sky laws, as to
which such counsel expresses no opinion, and other than
Federal securities laws, as to which such counsel expresses no
opinion except as otherwise set forth herein), or any
judgment, writ, injunction, decree, order or ruling of any
court or governmental authority binding on the Company of
which such counsel is aware;
(viii)No consent, approval, authorization, order,
registration or qualification of or with any New York,
Delaware corporate or Federal governmental authority is
required for the consummation by the Company of the
transactions contemplated by this Agreement and the
International Underwriting Agreement, except the registration
under the Act of the Shares and such consents, approvals,
14
authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws as
to which such counsel need express no opinion;
(ix) The statements set forth in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock, and
under the caption, "Certain United States Tax Consequences to
Non-United States Holders", insofar as they purport to
summarize the provisions of the laws referred to therein, are
accurate and correct in all material respects;
(x) The Company is not an "investment company" or an
entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act;
(xi) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
notes, the financial statement schedules and other financial
and accounting data therein, as to which such counsel need
express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or
the Exchange Act, as applicable and the rules and regulations
of the Commission thereunder; and
(xii) The Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related notes, the financial
statement schedules and other financial and accounting data
included in the Registration Statement or Prospectus, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the rules and regulations thereunder.
In addition, such counsel shall state that it has participated in
conferences with directors, officers and other representatives of the Company,
various of the Selling Stockholders, representatives of the independent public
accountants for the Company, representatives of the Underwriters and
representatives of counsel for the Underwriters, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed, and, although such counsel has not independently verified and
is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus, except to the extent specified in subsection (ix) of
this Section 7(c), no facts have come to such counsel's attention which leads
such counsel to believe that the Registration Statement (including any
documents incorporated by reference therein), on the effective date thereof
(or, in the case of documents incorporated by reference, when such documents
became effective or were filed), contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading or that the
Prospectus, on the date thereof or on the date hereof, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
contained therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel expresses no view with
respect to the financial statements and related notes, the financial statement
schedules and the other financial and accounting data included in the
Registration Statement or Prospectus); and they do not know of any contracts
or other documents of a character
15
required to be filed as an exhibit to the Registration Statement or required
to be incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are not filed
or described as required.
In rendering such opinion, such counsel may state that they express
no opinion as to the laws of any jurisdiction outside the United States;
(d) Weil, Gotshal & Xxxxxx LLP, counsel to LAL Family Partners L.P.,
shall have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(c) hereto) with respect to such Selling Stockholder,
dated such Time of Delivery, in form and substance reasonably satisfactory to
you, to the effect that:
(i) Such Selling Stockholder validly exists as a
limited partnership under, and is governed by, the laws of the
State of New York; and has the requisite power and authority
to enter into this Agreement, the International Underwriting
Agreement and the Custody Agreement (and, if such Selling
Stockholder's name on Schedule II hereto is followed by an
asterisk, the Power of Attorney), and to consummate the
transactions contemplated hereby and thereby in connection
with the Shares to be sold by such Selling Stockholder under
this Agreement and the International Underwriting Agreement;
(ii) The Custody Agreement (and, if such Selling
Stockholder's name on Schedule II hereto is followed by an
asterisk, the Power of Attorney) has been duly executed and
delivered by such Selling Stockholder and constitutes the
valid and binding agreement of such Selling Stockholder in
accordance with its terms;
(iii) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on
behalf of such Selling Stockholder; and the sale of the Shares
to be sold by such Selling Stockholder hereunder and
thereunder and the compliance by such Selling Stockholder with
all of the obligations of such Selling Stockholder under this
Agreement, the International Underwriting Agreement and the
Custody Agreement (and, if such Selling Stockholder's name on
Schedule II hereto is followed by an asterisk, the Power of
Attorney) and the consummation by such Selling Stockholder of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which such
Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets
of such Selling Stockholder is subject, nor will such action
result in any violation of the provisions of any New York,
Delaware corporate or Federal law, rule or regulation known to
such counsel (other than foreign and state securities or Blue
Sky laws, as to which such counsel expresses no opinion, and
other than Federal securities laws, as to which such counsel
expresses no opinion except as otherwise set forth herein), or
any judgment, writ, injunction, decree, order or ruling of any
court or governmental authority binding on such Selling
Stockholder of which such counsel is aware;
(iv) No consent, approval, authorization or order of
any New York, Delaware corporate or Federal governmental
agency or body is required to be obtained by such Selling
Stockholder for the consummation by such Selling Stockholder
of the transactions contemplated by this Agreement, the
International Underwriting Agreement and the Custody Agreement
(and if such Selling
16
Stockholder's name on Schedule II hereto is followed by an
asterisk, the Power of Attorney) or, in connection with the
Shares to be sold by such Selling Stockholder hereunder or
under the International Underwriting Agreement, except such as
have been duly obtained and are in full force and effect, the
registration of the Shares under the Act and such as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of such Shares
by the Underwriters or the International Underwriters (as to
which such counsel need express no opinion);
(v) Such Selling Stockholder has full right, power and
authority to sell, assign, transfer and deliver the Shares to
be sold by such Selling Stockholder under this Agreement and
the International Underwriting Agreement; and
(vi) Assuming that the Underwriters purchase the Shares
to be delivered at such Time of Delivery for value and without
notice of any adverse claim as such terms are used in Section
8-105 of the Uniform Commercial Code as currently in effect in
the State of New York (the "New York UCC"), the delivery of
certificates representing such Shares either registered in the
name of the Underwriters or effectively endorsed to the
Underwriters or in blank will pass to the Underwriters all
rights that such Selling Stockholder has in such Shares, free
of all adverse claims as such term is used in Section 8-105 of
the New York UCC.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction outside the United
States and in rendering the opinion in subparagraph (vi) such counsel may rely
upon a certificate of such Selling Stockholder in respect of matters of fact
as to ownership of, and liens, encumbrances, equities or claims on the Shares
sold by such Selling Stockholder, provided that such counsel shall state that
they believe that both you and they are justified in relying upon such
certificate;
(e) Weil, Gotshal & Xxxxxx LLP, counsel to Xxxxxxx X. Xxxxxx, Xxxxxxx
X. Xxxxxx and Xxxx X. Xxxxxx, each in his capacity as a Selling Stockholder,
shall have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(d) hereto), with respect to each of the Selling
Stockholders for whom they are acting as counsel, dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Custody Agreement (and, if such Selling
Stockholder's name on Schedule II hereto is followed by an
asterisk, the Power of Attorney) has been duly executed and
delivered by such Selling Stockholder and constitutes the
valid and binding agreement of such Selling Stockholder in
accordance with its terms;
(ii) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on
behalf of such Selling Stockholder; and the sale of the Shares
to be sold by such Selling Stockholder hereunder and
thereunder and the compliance by such Selling Stockholder with
all of the obligations of such Selling Stockholder under this
Agreement, the International Underwriting Agreement and the
Custody Agreement (and, if such Selling Stockholder's name on
Schedule II hereto is followed by an asterisk, the Power of
Attorney) and the consummation by such Selling Stockholder of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which such
Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or
17
assets of such Selling Stockholder is subject, nor will such
action result in any violation of the provisions of any New
York, Delaware corporate or Federal law, rule or regulation
known to such counsel (other than foreign and state securities
or Blue Sky laws, as to which such counsel expresses no
opinion, and other than Federal securities laws, as to which
such counsel expresses no opinion except as otherwise set
forth herein), or any judgment, writ, injunction, decree,
order or ruling of any court or governmental authority binding
on such Selling Stockholder of which such counsel is aware;
(iii) No consent, approval, authorization or order of
any New York or Federal governmental agency or body is
required to be obtained by such Selling Stockholder for the
consummation by such Selling Stockholder of the transactions
contemplated by this Agreement, the International Underwriting
Agreement and the Custody Agreement (and, if such Selling
Stockholder's name on Schedule II hereto is followed by an
asterisk, the Power of Attorney) or, in connection with the
Shares to be sold by such Selling Stockholder hereunder or
under the International Underwriting Agreement, except such as
have been duly obtained and are in full force and effect, the
registration of the Shares under the Act, the registration of
the Stock under the Exchange Act, and such as may be required
under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of such Shares
by the Underwriters or the International Underwriters (as to
which such counsel need express no opinion);
(iv) Such Selling Stockholder has full right, power and
authority to sell, assign, transfer and deliver the Shares to
be sold by such Selling Stockholder under this Agreement and
the International Underwriting Agreement; and
(v) Assuming that the Underwriters purchase the Shares
to be delivered at such Time of Delivery for value and without
notice of any adverse claim as such terms are used in Section
8-105 of the Uniform Commercial Code as currently in effect in
the State of New York (the "New York UCC"), the delivery of
certificates representing such Shares either registered in the
name of the Underwriters or effectively endorsed to the
Underwriters or in blank will pass to the Underwriters all
rights that such Selling Stockholder has in such Shares, free
of all adverse claims as such term is used in Section 8-105 of
the New York UCC.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction outside the United
States and in rendering the opinion in subparagraph (v) such counsel may rely
upon a certificate of such Selling Stockholder in respect of matters of fact
as to ownership of, and liens, encumbrances, equities or claims on the Shares
sold by such Selling Stockholder, provided that such counsel shall state that
they believe that both you and they are justified in relying upon such
certificate;
(f) Patterson, Belknap, Xxxx & Tyler, LLP, counsel to (i) Trust,
f/b/o Xxxxx Xxxxxx, u/a/d December 15, 1976, created by Xxxxxx X. Xxxxxx, as
grantor, (the "Xxxxx Xxxxxx Trust") and (ii) Trust, f/b/o Xxxx Xxxxxx, u/a/d
December 15, 1976, created by Xxxxxx X. Xxxxxx, as grantor, (the "Xxxx Xxxxxx
Trust"), shall have furnished to you their written opinion (a draft of each
such opinion is attached as Annex II(e) hereto) with respect to each of the
Selling Stockholders for whom they are acting as counsel, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Such Selling Stockholder validly exists as a trust
under, and is governed by, the laws of the State of New York;
and the trustee of such Selling
18
Stockholder has the requisite power and authority, on behalf
of such Selling Stockholder, to enter into this Agreement, the
International Underwriting Agreement and the Custody Agreement
(and, if such Selling Stockholder's name on Schedule II hereto
is followed by an asterisk, the Power of Attorney), and to
consummate the transactions contemplated hereby and thereby in
connection with the Shares to be sold by such Selling
Stockholder under this Agreement and the International
Underwriting Agreement;
(ii) The Custody Agreement (and, if such Selling
Stockholder's name on Schedule II hereto is followed by an
asterisk, the Power of Attorney) has been duly executed and
delivered by such Selling Stockholder and constitutes the
valid and binding agreement of such Selling Stockholder in
accordance with its terms;
(iii) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by such
Selling Stockholder; and the sale by such Selling Stockholder
of the Shares to be sold by such Selling Stockholder hereunder
and thereunder and the compliance by such Selling Stockholder
with all of the obligations of such Selling Stockholder under
this Agreement, the International Underwriting Agreement and
the Custody Agreement (and if such Selling Stockholder's name
on Schedule II hereto is followed by an asterisk, the Power of
Attorney) and the consummation by such Selling Stockholder of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which such
Selling Stockholder is a party or by which such Selling
Stockholder is bound, or to which any of the property or
assets of such Selling Stockholder is subject, nor will such
action result in any violation of the provisions of any
statute or order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction
over such Selling Stockholder or the property of such Selling
Stockholder, except that such counsel need not express any
opinion as to compliance with the registration or filing
requirements or disclosure provisions of the securities laws
of the United States or the securities or Blue Sky laws of any
other jurisdiction;
(iv) No consent, approval, authorization or order of
any court or governmental agency or body is required to be
obtained by such Selling Stockholder for the consummation by
such Selling Stockholder of the transactions contemplated by
this Agreement, the International Underwriting Agreement and
the Custody Agreement (and if such Selling Stockholder's name
on Schedule II hereto is followed by an asterisk, the Power of
Attorney) in connection with the Shares to be sold by such
Selling Stockholder hereunder or under the International
Underwriting Agreement, except such as have been duly obtained
and are in full force and effect, the registration of the
Shares under the Act, the registration of the Stock under the
Exchange Act and such as may be required under state or
foreign securities or Blue Sky laws in connection with the
purchase and distribution of such Shares by the Underwriters
or the International Underwriters;
(v) Such Selling Stockholder has full right, power and
authority to sell, assign, transfer and deliver the Shares to
be sold by such Selling Stockholder under this Agreement and
the International Underwriting Agreement; and
19
(vi) Assuming that the Underwriters purchase the Shares
to be delivered at such Time of Delivery for value and without
notice of any adverse claim as such terms are used in Section
8-105 of the Uniform Commercial Code as currently in effect in
the State of New York (the "New York UCC"), the delivery of
certificates representing such Shares either registered in the
name of the Underwriters or effectively endorsed to the
Underwriters or in blank will pass to the Underwriters all
rights that such Selling Stockholder has in such Shares, free
of all adverse claims as such term is used in Section 8-105 of
the New York UCC.
In rendering such opinion, such counsel may state that they express
no opinion as to the laws of any jurisdiction other than the laws of the State
of New York and the Federal laws of the United States and in rendering its
opinion in subparagraph (vi) such counsel may rely upon a certificate of such
Selling Stockholder in respect of matters of fact as to ownership of, and
liens, encumbrances, equities or claims on the Shares sold by such Selling
Stockholder, provided that such counsel shall state that they believe that
both you and they are justified in relying upon such certificate;
(g) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Xxxxxx Xxxxxxxx LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered prior to
the execution of this Agreement is attached as Annex I(a) hereto and a draft
of the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time of
Delivery is attached as Annex I(b) hereto);
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of which information is
given in the Prospectus there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity, results
of operations or Intellectual Property of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in Clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange (the "Exchange"); (ii) a
suspension or material limitation in trading in the Company's securities on
the Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering or
20
the delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(j) The Company shall have obtained and delivered to the Underwriters
executed copies of an agreement from all Lauder Family Members which own
shares of Common Stock (other than The Lauder Foundation), from each trustee
of a trust that is a Lauder Family Member and from Xxxxxx Guaranty Trust
Company of New York, to the effect set forth in Subsection 1(b)(vi) hereof in
form and substance satisfactory to you;
(k) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and of the Selling Stockholders, respectively,
satisfactory to you as to the accuracy of the representations and warranties
of the Company and the Selling Stockholders, respectively, herein at and as of
such Time of Delivery, as to the performance by the Company and the Selling
Stockholders of all of their respective obligations hereunder to be performed
at or prior to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a) and (h)
of this Section 7, and as to such other matters as you may reasonably request;
(l) The Company shall have complied with the provisions of Section
5(d) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(m) Each of the Selling Stockholders shall have delivered to the
Underwriters certificates required by Treasury Regulation section
1.1445-2(b)(2) in order to avoid withholding of tax under Section 1445 of the
Internal Revenue Code of 1986, as amended.
8. (a) The Company and each of the Selling Stockholders, jointly and
severally, will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Selling Stockholders
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx
& Co. expressly for use therein. Notwithstanding the provisions of this
subsection (a), no Selling Stockholder shall be required to pay an amount in
excess of the gross proceeds received by such Selling Stockholder from the
Shares sold by it hereunder.
(b) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
21
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein; and will reimburse the Company and each Selling
Stockholder for any legal or other expenses reasonably incurred by the Company
or such Selling Stockholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party
(which shall not, except with the consent of the indemnified party, be counsel
to the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the
22
Company and the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement
(before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Shares purchased under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Stockholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company, each of the Selling Stockholders and each of the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholders under
this Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company or any Selling Stockholder within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery,
you may in your discretion arrange for you or another party or other parties
to purchase such Shares on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the
purchase of such Shares, then the Selling Stockholders shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In
the event that, within the respective prescribed periods, you notify the
Selling Stockholders that you have so arranged for the purchase of such
Shares, or the Selling Stockholders notify you that they have so arranged for
the purchase of such Shares, you or the Selling Stockholders shall have the
right to postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any
23
amendments to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares
of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number
of all of the Shares to be purchased at such Time of Delivery, or if the
Selling Stockholders shall not exercise the right described in subsection (b)
above to require non-defaulting Underwriters to purchase Shares of a
defaulting Underwriter or Underwriters, then the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Shares to
be sold at such Time of Delivery shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company or the Selling
Stockholders, except for the expenses to be borne by the Company and the
Selling Stockholders and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and
the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any of the Selling Stockholders,
or any officer or director or controlling person of the Company, or any
controlling person of any Selling Stockholder, and shall survive delivery of
and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor the Selling Stockholders shall then be under
any liability to any Underwriter except as provided in Sections 6 and 8
hereof; but, if for any other reason any Shares are not delivered by or on
behalf of the Selling Stockholders as provided herein, each of the Selling
Stockholders pro rata (based on the number of Shares to be sold by such
Selling Stockholder hereunder), will reimburse the Underwriters through you
for all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the Selling Stockholders shall then be under no
further liability to any Underwriter in respect of the Shares not so delivered
except as provided in Sections 6 and 8 hereof.
24
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made
or given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any Selling Stockholder hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of such Selling Stockholder made or
given by any or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the representatives in care of
Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Registration Department; if to any Selling Stockholder shall be delivered or
sent by mail, telex or facsimile transmission to counsel for such Selling
Stockholder at its address set forth in Schedule II hereto; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
General Counsel; provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Stockholders by you upon request. Any
such statements, requests, notices or agreements shall take effect upon
receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Stockholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, any Selling Stockholder
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us ten counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters,
the Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters (U.S.
Version), the form of which shall be submitted to the Company and the Selling
Stockholders for examination upon request, but without warranty on your part
as to the authority of the signers thereof.
25
Any person executing and delivering this Agreement as
Attorney-in-Fact for a Selling Stockholder represents by so doing that he has
been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant
to a validly existing and binding Power of Attorney which authorizes such
Attorney-in-Fact to take such action.
Very truly yours,
THE XXXXX XXXXXX COMPANIES INC.
By:
----------------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
LAL FAMILY PARTNERS L.P.
By:
----------------------------------------
Xxxxxxx X. Xxxxxx, Managing Partner
26
XXXXXXX X. XXXXXXX AS TRUSTEE
OF THE TRUST F/B/O XXXXX XXXXXX,
U/A/D DECEMBER 15, 1976, CREATED BY
XXXXXX X. XXXXXX, AS GRANTOR
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
XXXXXXX X. XXXXXXX AS TRUSTEE
OF THE TRUST F/B/O XXXX XXXXXX,
U/A/D DECEMBER 15, 1976, CREATED BY
XXXXXX X. XXXXXX, AS GRANTOR
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Trustee
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
SBC Warburg Dillon Read Inc.
By:
----------------------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
27
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ------------------
Xxxxxxx, Sachs & Co................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.........................................
X.X. Xxxxxx Securities Inc.........................................
SBC Warburg Dillon Read Inc........................................
--------------- ------------------
Total................................................... 3,224,800 483,720
=============== ==================
28
SCHEDULE II
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
--------------- ------------------
The Selling Stockholders*:
Xxxxxxx X. Xxxxxx(a).............................
Xxxxxxx X. Xxxxxx(a).............................
Xxxx X. Xxxxxx(a)................................
LAL Family Partners L.P.(a)......................
Xxxxx Xxxxxx Trust(b)............................
Xxxx Xxxxxx Trust(b).............................
--------------- ------------------
Total............................................ 3,224,800 483,720
=============== ==================
(a) Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxx X. Xxxxxx and LAL Family
Partners L.P. are represented by Weil, Gotshal & Xxxxxx LLP, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b) Xxxxx Xxxxxx Trust and Xxxx Xxxxxx Trust are represented by
Patterson, Belknap, Xxxx & Tyler, LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
* Attorneys-in-Fact for each Selling Stockholder: Xxxxxx X. Xxxxxx and
Xxxxxxx X. Xxxx
29
ANNEX I
FORM OF COMFORT LETTER OF
XXXXXX XXXXXXXX LLP
Pursuant to Section 7(i) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning
of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and
any supplementary financial information and schedules (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter,
as indicated in their reports thereon, copies of which have been
separately furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included in the
Company's quarterly report on Form 10-Q incorporated by reference
into the Prospectus as indicated in their reports thereon; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information
with respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference
in Item 6 of the Company's Annual Report on Form 10-K for the most
recent fiscal year incorporated by reference in the Prospectus agrees
with the corresponding amounts (after restatement where applicable)
in the audited consolidated financial statements for such five fiscal
years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the
Prospectus under selected captions with the disclosure requirements
of Regulation S-K and on the basis of limited procedures specified in
such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d)
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an examination in accordance with generally accepted
auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below, a
reading of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange
Act as it applies to Form 10-Q and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity
with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in
Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred
to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and
the published rules and regulations thereunder or the pro
forma
2
adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or
any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the examination referred to in
their report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraphs (iii) and
(vi) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared
certain of such amounts, percentages and financial information with
the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
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