EXHIBIT 1.1
GULFSTREAM AEROSPACE CORPORATION
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
-, 1998
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Gulfstream Aerospace Corporation, a Delaware corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of [-] shares (the "Firm Shares") of Common Stock, par value $.01 per share
("Stock"), of the Company, and, at the election of the Underwriters, up to [-]
additional shares (the "Optional Shares") of Stock. 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 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 [-] 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 and Xxxxxx Xxxxxxx & Co.
International Limited, are acting as lead managers. Anything herein or therein
to the contrary notwithstanding, the respective closings under this Agreement
and the International Underwriting Agreement are hereby expressly made
conditional on one another. The Underwriters hereunder and the International
Underwriters are simultaneously entering into an Agreement between U.S. and
International Underwriting Syndicates (the "Agreement between Syndicates") which
provides, among other things, for the transfer of shares of Stock between the
two syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages. Except as used in Sections 2, 3, 4, 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 and the Selling Stockholders that:
(i) A registration statement on Form S-3 (File No. 333-[-]) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus contained therein, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which became or will become effective upon filing, no other document
with respect to the Initial Registration Statement or any 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 and (ii) the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time such part
of the Initial Registration Statement became effective, each as amended at the
time such part of the Initial Registration Statement became effective or such
part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the "Registration
Statement"; such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus"; and any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement);
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(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 any
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein or by a
Selling Stockholder expressly for use in the preparation of the answers therein
to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx, Xxxxx &
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 do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the preparation of the
answers therein to Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any 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, which
would individually or in the aggregate have, or may reasonably be expected to
have, a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and
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its subsidiaries, taken as a whole; 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 (other than pursuant to the exercise of
Options (as defined below)) or long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any development that may
reasonably be expected to involve a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
(vi) 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, with respect to
liens and encumbrances, such as are provided for pursuant to the terms of the
Credit Agreement, dated as of October 16, 1996 (the "Credit Agreement"), among
Gulfstream Delaware Corporation, The Chase Manhattan Bank, and the banks and
other financial institutions party thereto, or such as do not materially affect
the value of such property and do not interfere in any material respect with the
use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
in any material respect with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(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 so qualify would not have, and would not reasonably be expected to
have, a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; each subsidiary of the Company has been duly
incorporated or organized and is validly existing as a corporation or limited
liability company in good standing under the laws of its jurisdiction of
incorporation or organization; and each of Gulfstream Delaware Corporation and
Gulfstream Aerospace Corporation, a Georgia corporation ("GACGA"), 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 each owns or
leases properties, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not have, and would
not reasonably be expected to have, a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole;
(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; at each Time of Delivery (as defined in Section 4 below) all of the
then issued shares of Stock of the Company will have been duly and validly
authorized and issued, will be fully paid and non-assessable and will conform in
all material respects to the description of the Stock contained in the
Prospectus; and all of the issued shares of capital stock or other ownership
interests of each subsidiary of the Company have been duly and
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validly authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims, except as are
provided for pursuant to the terms of the Credit Agreement;
(ix) No holder of securities of the Company has rights, pursuant to
any agreement with the Company or otherwise, to register such securities under
any registration statement filed with the Commission except as otherwise
disclosed in the Prospectus;
(x) The unissued shares of Stock issuable upon the exercise of
options to be exercised by certain of the Selling Stockholders (the "Options")
have been duly and validly authorized and reserved for issuance, and at the Time
of Delivery with respect to such shares, such shares will be delivered in
accordance with the provisions of the Stock Option Agreements between the
Company and such Selling Stockholders pursuant to which such options were
granted (the "Option Agreements") and will be duly and validly issued, fully
paid and non-assessable and will conform in all material respects to the
description thereof in the Prospectus;
(xi) The Shares have been duly qualified for listing on the New York
Stock Exchange, subject to official notice of issuance.
(xii) The Options were duly authorized and issued pursuant to the
Option Agreements and constitute valid and binding obligations of the Company,
and the counterparties thereto are entitled to the benefits provided by the
Option Agreements; the Option Agreements were duly authorized, executed and
delivered and constitute valid and binding instruments enforceable in accordance
with their terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Options and the
Option Agreements conform in all material respects to the descriptions thereof
in the Prospectus;
(xiii) 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 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, which conflict, breach, violation or default would
have, or may reasonably be expected to have, a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, nor will such action
result in any violation of the provisions of the Restated 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; 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 for the registration under
the Act of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters and the International Underwriters;
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(xiv) 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 would individually or in the aggregate have,
or may reasonably be expected to have, a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xv) Deloitte & Touche 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;
(xvi) The Company's existing backlog orders for production of the
Gulfstream IV-SP and Gulfstream V are as described in the Prospectus in all
material respects; all such orders are valid and binding and in full force and
effect with respect to the Company, and such orders are subject to no
limitations, restrictions or conditions otherwise than as expressly set forth
therein, except for such limitations, restrictions or conditions as,
individually or in the aggregate, would not have a material adverse effect on
the Company's backlog as described in the Prospectus; and all such backlog
orders and any amendments thereto are in substantially the forms supplied to you
or your representatives for inspection; and
(xvii) 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 captions "Risk Factors--Shares Eligible
For Future Sale; Registration Rights" and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred to
therein, in each case present a fair summary of such terms, laws or documents in
all material respects.
(b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement, the
International Underwriting Agreement, the Power of Attorney (the "Power of
Attorney") and the Custody Agreement (the "Custody Agreement") hereinafter
referred to, and for the sale and delivery of the Shares to be sold by such
Selling Stockholder hereunder and under the International Underwriting
Agreement, have been obtained; and such Selling Stockholder has full right,
power and authority to enter into this Agreement, the International Underwriting
Agreement, the Power of Attorney and the Custody Agreement and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder hereunder
and under the International Underwriting Agreement;
(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and under the International Underwriting Agreement and the compliance
by such Selling Stockholder with all of the provisions of this Agreement, the
International Underwriting Agreement, the Power of Attorney and the Custody
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 statute,
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets of such Selling
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Stockholder is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of such Selling
Stockholder if such Selling Stockholder is a corporation, the Partnership
Agreement or Articles of Partnership of such Selling Stockholder if such Selling
Stockholder is a partnership, or other constituent documents if such Selling
Stockholder is neither a corporation nor a partnership, or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such Selling
Stockholder;
(iii) Immediately prior to each Time of Delivery such Selling
Stockholder will have good and valid title to the Shares (other than the Shares,
if any, to be issued upon exercise of Options) to be sold at such Time of
Delivery by such Selling Stockholder hereunder and under the International
Underwriting Agreement, free and clear of all liens, encumbrances, equities or
claims, except for those arising under this Agreement, the International
Underwriting Agreement, the Custody Agreement and the Power of Attorney; such
Selling Stockholder will have, immediately prior to such Time of Delivery, (a)
good and valid title to the Options, if any, to be exercised in respect of the
Shares to be sold hereunder and under the International Underwriting Agreement
and (b) assuming due issuance by the Company of any Shares to be issued upon
exercise of Options, good and valid title to the Shares issued upon exercise of
such Options, in each case, free and clear of all liens, encumbrances, equities
or adverse claims, except for those arising under this Agreement, the
International Underwriting Agreement, the Custody Agreement and the Power of
Attorney; and, (a) if certificates representing the Shares are to be delivered
to the Underwriters and International Underwriters, upon delivery of the
certificates representing all Shares to be sold by such Selling Stockholder and
payment therefor pursuant hereto and thereto, and assuming the Underwriters and
International Underwriters purchase such Shares without notice of any adverse
claim (as such term is used in Section 8-105 of the Uniform Commercial Code as
in effect in the State of New York (the "Code")), the Underwriters and
International Underwriters will acquire good and valid title to such Shares,
free and clear of all security interests, liens, encumbrances, equities or other
adverse claims, or (b) if the Shares are to be delivered to the Underwriters and
International Underwriters through the facilities of The Depository Trust
Company ("DTC"), upon delivery of such Shares registered in the name of Cede &
Co. or such other nominee designated by DTC, payment therefor pursuant hereto
and the International Underwriting Agreement and the crediting of the
Underwriters' and International Underwriters' accounts with such Shares in the
records of DTC, Cede & Co. or such other nominee designated by DTC shall acquire
all of the rights such Selling Stockholders had in the Shares and shall be a
"protected purchaser" of such Shares (within the meaning of Section 8-303 of the
Code), and the Underwriters and the International Underwriters will acquire a
valid "security entitlement" (within the meaning of Section 8-501 of the Code)
with respect to such Shares, and no action based on an "adverse claim" (as
defined in Section 8-102 of the Code) may be asserted against the Underwriters
or the International Underwriters with respect to such security entitlement
(assuming that the Underwriters and the International Underwriters are without
notice of any such adverse claim);
(iv) No offering, sale or other disposition of any Stock (excluding
any sales or dispositions to the Company, but including the entering into of any
physically or cash-settled derivatives instrument) will be made within 90 days
after the date of the Prospectus, directly or indirectly, by such Selling
Stockholder without the prior written consent of the representatives otherwise
than hereunder or under the International Underwriting Agreement, other than
through transfers to (i) any spouse, parent, child, brother or sister of such
Selling Stockholder, or any issue
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of the foregoing (including for this purpose persons legally adopted into the
line of descent), (ii) a trust established solely for the benefit of such
Selling Stockholder or any spouse, parent, child, brother or sister of such
Selling Stockholder, or for the benefit of any issue of the foregoing, (iii) a
charitable foundation or similar charitable organization, or (iv) any
corporation or partnership which is controlled by such Selling Stockholder, or
by any spouse, parent, child, brother or sister of such Selling Stockholder, or
by any issue of the foregoing, PROVIDED, HOWEVER, that prior to each such
transfer such transferee shall have entered into a letter agreement with you as
representatives of the Underwriters agreeing to abide by the restrictions
contained in this clause;
(v) 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; and
(vi) 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.
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 contemplated herein and in the International
Underwriting Agreement, each of the Selling Stockholders agrees to deliver to
you prior to or at the First Time of Delivery (as hereinafter defined) 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).
Each of the Selling Stockholders represents and warrants that certificates
in negotiable form representing all of the Shares to be sold by such Selling
Stockholder hereunder other than any such Shares to be issued upon the exercise
of Options, have been, and each of the Selling Stockholders who is selling
Shares on the exercise of Options represents and warrants that duly completed
and executed irrevocable Option exercise notices, in the forms specified by the
relevant Option Agreement, with respect to all of the Shares to be sold by such
Selling Stockholder hereunder which are not represented by certificates, have
been placed in custody under a Custody Agreement, in the form heretofore
furnished to you, duly executed and delivered by such Selling Stockholder to
ChaseMellon Shareholder Services, L.L.C., as custodian (the "Custodian"), and
that such Selling Stockholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you, appointing the persons
indicated in Schedule II hereto, and each of them, as such Selling Stockholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute and
deliver this Agreement and the International Underwriting Agreement on behalf of
such Selling Stockholder, to determine the purchase price to be paid by the
Underwriters to the Selling Stockholders as provided in Section 2 hereof, to
authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in
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connection with the transactions contemplated by this Agreement, the
International Underwriting Agreement and the Custody Agreement.
Each of the Selling Stockholders specifically agrees that the Shares
represented by the certificates or the irrevocable Option exercise notice, in
either case held in custody for such Selling Stockholder under the Custody
Agreement, are subject to the interests of the Underwriters hereunder, and that
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. Each of the Selling Stockholders
specifically agrees that the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death or incapacity
of any individual Selling Stockholder, or, in the case of an estate or trust, by
the death or incapacity of any executor or trustee or the termination of such
estate or trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the occurrence of any
other event. If any individual Selling Stockholder or any such executor or
trustee should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership or corporation should be
dissolved, or if any other such event should occur, before the delivery of the
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 of
the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to
the Power of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of whether
or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received
notice of such death, incapacity, termination, dissolution or other event.
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 the Selling Stockholders hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from each of
the Selling Stockholders, at the purchase price per share set forth in clause
(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.
Each of the Selling Stockholders, as and to the extent indicated in
Schedule II hereto, hereby grants, severally and not jointly, to the
Underwriters the right to purchase at their election
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up to [-] 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 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.
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 certified or official bank check or checks or by wire
transfer, payable to the order of the Custodian in Federal Funds (same day).
The delivery of the Shares to Xxxxxxx, Xxxxx & Co. pursuant to the prior
sentence may be made, at the option of Xxxxxxx, Sachs & Co., through the
facilities of DTC. The Company will cause the certificates representing the
Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at the office of DTC or its designated custodian, as the case may be (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Shares, 9:30 a.m., New York City time, on [-], 1998 or
such other time and date as Xxxxxxx, Sachs & Co. and the Attorneys-in-Fact may
agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m.,
New York City time, on the date specified by Xxxxxxx, Xxxxx & Co. in the written
notice given by Xxxxxxx, Sachs & Co. of the Underwriters' election to purchase
such Optional Shares, or such other time and date as Xxxxxxx, Xxxxx & Co. and
the Attorneys-in-Fact 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(l) hereof will be delivered at the offices of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, 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. "New York Business Day" shall mean each
Monday,
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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 and, if the Company elects
to rely upon Rule 462(b) under the Act, to file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.,
Washington D.C. time on the date of this Agreement and to pay to the Commission
at such time of filing 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; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of Delivery which
shall be reasonably disapproved by you promptly after reasonable notice thereof;
to advise you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the Shares; to
advise you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or prospectus, of the suspension of the qualification
of the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
is required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any 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
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reason it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon your request
to prepare and furnish without charge to each Underwriter and 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;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, or file a registration
statement (other than a registration statement on Form S-8 with respect to an
employee benefit plan) with respect to, except as provided hereunder and under
the International Underwriting Agreement, any Stock, securities of the Company
(other than pursuant to stock option and incentive plans and agreements
existing, or on the conversion of convertible securities outstanding on the date
of this agreement or grants to new or existing members of the Company's Board of
Directors pursuant to the Company's existing policy of granting options thereto)
which are substantially similar to the Stock or any other securities which are
exercisable or exchangeable for, convertible into or whose exercise or
settlement price is derivable from the price of, Stock or any such securities
substantially similar to such other securities, without your prior written
consent; and to use reasonable efforts to cause each person who has entered into
an agreement substantially to the effect set forth in Section 1(b)(iv) to comply
therewith and not to grant any waivers or consents to non-compliance therewith
and to enforce its rights under each such agreement, in each case unless and to
the extent that it shall have obtained the prior written consent of the
representatives of the Underwriters;
(f) Except as described in the Prospectus and with respect to the
acceleration of Options to be exercised in connection with this Agreement and
the International Underwriting Agreement, 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 accelerate or agree to accelerate the vesting of any
options to acquire Stock to any date within such 90-day period, unless, in
connection with any such acceleration or agreement to accelerate it is duly
established that the date upon which such vested options may first be exercised
for shares of Stock shall not be any date within such 90-day period, and not to
waive, rescind, terminate, amend or modify any provision or term of any
agreement or stock option plan having the effect of accelerating the vesting of
any such options to any date within such 90-day period;
(g) To furnish 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);
-12-
(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 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); and
(i) Upon delivery to the Company of the irrevocable Option exercise
notices referred to in the Section 1(b) hereof and the receipt of the
appropriate instructions from the Attorneys-in-Fact, to issue the Shares
relating thereto in accordance with the provisions of the applicable Option
Agreement, and, notwithstanding any other provision of such Option
Agreement, to deliver the Shares to you as contemplated in the Custody
Agreement.
6. The Company and each Selling Stockholder covenant and agree with one
another and with the several Underwriters that (a) the Company will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters 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 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(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (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; (v) the cost of preparing stock
certificates; (vi) the cost and charges of any transfer agent or registrar;
(vii) the fees and expenses of the Attorneys-in-Fact and the Custodian;
(viii) all expenses and taxes incident to the sale and delivery of the Shares to
be sold by the Selling Stockholders to the Underwriters hereunder, except as
provided below; (ix) all fees and expenses in connection with listing the Shares
on the Exchange; (x) all fees, disbursements and expenses of one counsel for the
Selling Stockholders selected by the FL Selling Stockholders (as defined in
Section 7(e)) (which counsel may be counsel to the Company); and (xi) all other
costs and expenses incident to the performance of its obligations or the Selling
Stockholders' obligations hereunder which are not otherwise specifically
provided for in this Section and (b) each Selling Stockholder shall pay or cause
to be paid any fees, disbursements and expenses of counsel for such Selling
Stockholder other than those specified in clause (x) above. In connection with
clause (viii) of the preceding sentence, Xxxxxxx, Xxxxx & Co. agree to pay New
York State stock transfer tax, and the Company agrees to reimburse Xxxxxxx,
Sachs & Co. for associated carrying costs if such tax payment is not rebated on
the day of payment and for any portion of such tax payment not rebated. It is
understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel,
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stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery, with
respect to the incorporation of the Company, the validity of the Shares being
delivered at such Time of Delivery, the Registration Statement, the Prospectus
and 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) Xxx X. Xxxxxx, Vice President and General Counsel of the Company,
or other counsel (who may be employees of the Company) reasonably
satisfactory to the Underwriters, shall have furnished to you his written
opinion (a draft of such opinion is attached as Annex II(a) hereto),
dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject which would
individually or in the aggregate have, or may reasonably be expected to have, a
material adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole; and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(ii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, except where failure to so qualify,
individually or in the aggregate, would not have, and would not reasonably be
expected to have, a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole (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 and its
subsidiaries, provided
-14-
that such counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(iii) Each of Gulfstream Delaware Corporation and GACGA has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its respective state of incorporation; and all of the issued and
outstanding shares of capital stock of each such company have been duly and
validly authorized and issued, are fully paid and non-assessable, and (except
for directors' qualifying shares) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims, except
such as are provided for pursuant to the terms of the Credit Agreement;
(iv) Each of Gulfstream Delaware Corporation and GACGA has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing in each jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except where failure
to so qualify, individually or in the aggregate, would not have, and would not
reasonably be expected to have, a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole (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 and its
subsidiaries, provided that such counsel shall state that he believes that both
you and he are justified in relying upon such opinions and certificates);
(v) The compliance by the Company with all of the provisions of this
Agreement, the International Underwriting Agreement and the consummation by the
Company and the Selling Stockholders 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, except
for such conflicts, breaches, violations or defaults as will not have,
individually or in the aggregate, a material adverse effect on the financial
position, results of operations or cash flows of the Company and its
subsidiaries taken as a whole, nor will such action result in any violation of
the provisions of any statute or rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body referred
to in clause (v) above is required for the consummation by the Company of the
transactions contemplated by this Agreement and the International Underwriting
Agreement, except for the registration under the Act of the Shares, which has
been made, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters
and the International Underwriters;
(vii) The Company and its subsidiaries have good and marketable title
in fee simple to all real 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 with respect to liens and encumbrances, such as are provided for
pursuant to the terms of the Credit Agreement or such as
-15-
do not materially affect the value of such property and do not interfere in any
material respect with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere in any material respect with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries (in
giving the opinion in this clause, such counsel may state that no examination of
record titles for the purpose of such opinion has been made, and that he is
relying upon a general review of the titles of the Company and its subsidiaries,
upon opinions of local counsel and abstracts, reports and policies of title
companies rendered or issued at or subsequent to the time of acquisition of such
property by the Company or its subsidiaries, upon opinions of counsel to the
lessors of such property and, in respect of matters of fact, upon certificates
of officers of the Company or its subsidiaries, provided that such counsel shall
state that he believes that both you and he are justified in relying upon such
opinions, abstracts, reports, policies and certificates); and
(viii) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related notes and
schedules and other financial data included 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 such counsel has no
reason to believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents were so filed,
not misleading;
In addition, such counsel shall state that 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 and schedules and other financial data included or incorporated by
reference therein, as to which such counsel need express no opinion) as of their
respective effective or issue dates, appear on their face to be responsive as to
form in all material respects with the requirements of the Act and the rules and
regulations thereunder; no facts have come to his attention to cause him to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related notes and schedules and other
financial data included or incorporated by reference therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of its date,
the Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements and
related schedules and other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a
-16-
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or that, as of such Time
of Delivery, the Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data included therein, as
to which such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction other than the laws of the State of
New York, the State of Georgia (with respect to paragraphs (iii), (v) and (vi)
of this section), the General Corporation Law of the State of Delaware and the
Federal laws of sthe United States.
(d) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for the
Company, shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex II(b) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The 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 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 which has been identified to such counsel in a
certificate provided by the Vice President and General Counsel of the Company as
material to the Company and its subsidiaries, taken as a whole, nor will such
action result in any violation of the provisions of the Restated Certificate of
Incorporation or By-laws of the Company or any statute or any rule or regulation
known to such counsel, after due inquiry, or any order identified to such
counsel in a certificate provided by the Vice President and General Counsel of
the Company, of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties;
(iii) 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 or the International Underwriting Agreement, except for the
registration under the Act of the Shares, which has been made, and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the International
Underwriters;
(iv) The Company has an authorized capitalization as set forth in the
Prospectus under the caption "Capitalization", 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 authorized and validly issued and are fully paid
and non-assessable (assuming, with respect to the Shares being issued upon the
exercise of the Options, that payment of the exercise price therefore is made to
-17-
the Company as provided in the Custody Agreements); and the Shares conform as to
legal matters to the description of the Stock contained in the Prospectus;
(v) The statements set forth in the Prospectus under the captions
"Risk Factors-- Shares Eligible For Future Sale; Registration Rights"; and
"Underwriting", insofar as they purport to describe the provisions of the laws
and documents referred to therein, in each case fairly summarize such provisions
in all material respects; and
(vi) This Agreement and the International Underwriting Agreement have
been duly authorized, executed and delivered by the Company.
In addition, such counsel shall state that 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 and schedules and other financial data included or incorporated by
reference therein, as to which such counsel need express no opinion) as of their
respective effective or issue dates, appear on their face to be responsive as to
form in all material respects with the requirements of the Act and the rules and
regulations thereunder; no facts have come to their attention to cause them to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related notes or schedules and other
financial data included or incorporated by reference therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of its date,
the Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements and
related notes or schedules and other financial data included or incorporated by
reference therein, as to which counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading or that, as of such Time of Delivery, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to such Time of Delivery (other than the financial statements and related
notes or schedules and other financial data included therein, as to which such
counsel need express no opinion) contains an untrue statement of a material fact
or omits to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading.
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, the Federal law of the United States and the General Corporation Law
of the State of Delaware;
(e) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for
each of the FL Selling Stockholders (as defined below), shall have furnished to
you their written opinion (a draft of such opinion is attached as Annex II(c)
hereto), with respect to each of Gulfstream Partners, Gulfstream Partners II,
L.P. and Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership-IV, each of which is a Selling Stockholder (the "FL Selling
Stockholders"), dated such Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by such FL Selling Stockholder and constitute valid and
binding agreements of such FL Selling Stockholder in accordance with their
terms, subject as to enforcement to (i) applicable
-18-
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws affecting creditors' rights generally and (ii) general principles
of equity (whether considered in a proceeding at law or in equity);
(ii) This Agreement and the International Underwriting Agreement have
been duly executed and delivered by or on behalf of such FL Selling Stockholder;
and the sale of the Shares to be sold by such FL Selling Stockholder hereunder
and thereunder and the compliance by such FL Selling Stockholder with all of the
provisions of this Agreement, the International Underwriting Agreement, the
Power of Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any terms or provisions of, or constitute a default
under, any statute of the State of New York or the United States of America, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument identified to such counsel in a certificate provided by a general
partner of such FL Selling Stockholder, to which such FL Selling Stockholder is
a party or by which such FL Selling Stockholder is bound or to which any of the
property or assets of such FL Selling Stockholder is subject, or the Partnership
Agreement of such FL Selling Stockholder, or any order, rule or regulation
identified to such counsel in a certificate provided by a general partner of
such FL Selling Stockholder, of any court or governmental agency or body of the
State of New York or the United States of America having jurisdiction over such
FL Selling Stockholder or the property of such FL Selling Stockholder;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body of the State of New York or the United States of
America is required for the consummation of the transactions contemplated by
this Agreement and the International Underwriting Agreement in connection with
the Shares to be sold by such FL Selling Stockholder hereunder and thereunder,
except for the registration under the Act of the Shares, which has been made,
and such consents, approvals, or authorizations as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters and the International Underwriters; and
(iv) Assuming that the Underwriters and the International
Underwriters purchase the Shares to be sold to the Underwriters and the
International Underwriters by the FL Selling Stockholders at such Time of
Delivery for value and without notice of any adverse claim as such term is
defined in Section 8-102 of the Code, if certificates representing the Shares
are to be delivered to the Underwriters and International Underwriters, the
Underwriters and International Underwriters will acquire good and valid title to
such Shares free and clear of all security interests, liens, encumbrances or
other adverse claims, or, if such Shares are to be delivered to the Underwriters
and the International Underwriters through the facilities of DTC, upon the
crediting of the Underwriters' and the International Underwriters' accounts with
such Shares in the records of DTC, Cede & Co. or such other nominee designated
by DTC will acquire all rights that such Selling Stockholders had in the Shares
and will be a "protected purchaser" of such Shares (within the meaning of
Section 8-303 of the Code) and the Underwriters and the International
Underwriters will acquire a valid "security entitlement" (within the meaning of
Section 8-501 of the Code) with respect to such Shares, and no action based on
an "adverse claim" (as defined in Section 8-102 of the Code) may be asserted
against the Underwriters or the International Underwriters with respect to such
security entitlement;
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(f) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel for
each of the Selling Stockholders, shall have furnished to you their written
opinion (a copy of such opinion is attached as Annex II(c) hereto), dated such
Time of Delivery, with respect to each of the Selling Stockholders other than
the FL Selling Stockholders (the "Other Selling Stockholders"), in form and
substance satisfactory to you, to the effect that:
(i) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by each Other Selling Stockholder and constitute valid
and binding agreements of such Other Selling Stockholder in accordance with
their terms, subject as to enforcement to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws affecting
creditors' rights generally and (ii) general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) This Agreement and the International Underwriting Agreement have
been duly executed and delivered by or on behalf of each Other Selling
Stockholder; and
(iii) Assuming that the Underwriters and the International
Underwriters purchase the Shares to be sold to the Underwriters and the
International Underwriters by the Selling Stockholders at such Time of Delivery
for value and without notice of any adverse claim as such term is defined in
Section 8-102 of the Code, if certificates representing the Shares are to be
delivered to the Underwriters and International Underwriters, the Underwriters
and International Underwriters will acquire good and valid title to such Shares
free and clear of all security interests, liens, encumbrances or other adverse
claims, or, if such Shares are to be delivered to the Underwriters and the
International Underwriters through the facilities of DTC, upon the crediting of
the Underwriters' and the International Underwriters' accounts with such Shares
in the records of DTC, Cede & Co. or such other nominee designated by DTC shall
acquire all rights that such Selling Stockholders had in the Shares and shall be
a "protected purchaser" of such Shares (within the meaning of Section 8-303 of
the Code) and the Underwriters and the International Underwriters will acquire a
valid "security entitlement" (within the meaning of Section 8-501 of the Code)
with respect to such Shares, and no action based on an "adverse claim" (as
defined in Section 8-102 of the Code) may be asserted against the Underwriters
or the International Underwriters with respect to such security entitlement;
In rendering the opinion in subparagraphs (i) and (ii) such counsel may
assume the authenticity of all signatures and the capacity of the Other Selling
Stockholders to enter into and perform the agreements referred to therein;
(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, Deloitte & Touche LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you (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,
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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 that may reasonably be expected to involve a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is in your
judgment 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 by 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 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 your
judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of Delivery
on the terms and in the manner contemplated by the Prospectus;
(j) The Shares to be sold by the Selling Stockholders at such Time of
Delivery shall have been duly listed, subject to notice of issuance, on the
Exchange;
(k) The Company shall have complied with the provisions of subsection
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(l) 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, and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or 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
-21-
investigating or defending any such action, claim, suit or proceeding as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be liable
in case of this subsection(a) 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 you expressly for use therein; and PROVIDED,
FURTHER, that the Company shall not be liable to any Underwriter under the
indemnity agreement in this subsection (a) with respect to any Preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
Underwriter results from the fact that such Underwriter sold Shares to a person
as to whom it shall be established that there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented in any case where such delivery is
required by the Act if the Company has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or liability
of such Underwriter results from an untrue statement or omission of a material
fact contained in the Preliminary Prospectus which was identified in writing at
such time to such Underwriter and corrected in the Prospectus or in the
Prospectus as then amended or supplemented.
(b) Each of the FL Selling Stockholders, severally in proportion to
the number of Shares to be sold by such FL Selling Stockholder hereunder, 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 FL
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 you expressly
for use therein; and PROVIDED, FURTHER, that the FL Selling Stockholders shall
not be liable to any Underwriter under the indemnity agreement in this
subsection (b) with respect to any Preliminary Prospectus to the extent that any
such loss, claim, damage or liability of such Underwriter results from the fact
that such Underwriter sold Shares to a person as to whom it shall be established
that there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus or of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company or the Selling Stockholders have previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or liability
of such Underwriter results from an untrue statement or omission of a material
fact contained in the Preliminary Prospectus which was identified in writing at
such time to such Underwriter and corrected in the Prospectus or in the
Prospectus as then amended or supplemented. Notwithstanding the provisions of
this
-22-
subsection (b), no FL Selling Stockholder shall be required to pay an amount in
excess of the gross proceeds received by such FL Selling Stockholder from the
Shares sold by it hereunder.
(c) Each of the Selling Stockholders, severally in proportion to the
number of Shares to be sold by such Selling Stockholder hereunder, will
indemnify and hold harmless the Company and each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which the Company or 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 an 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 and the Company for
any legal or other expenses reasonably incurred by such Underwriter or the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred, 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
Selling Stockholder expressly for use therein, and PROVIDED, FURTHER, that the
Selling Stockholders shall not be liable to any Underwriter under the indemnity
agreement in this subsection (c) with respect to any Preliminary Prospectus to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares to a person as to whom
it shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the Prospectus
as then amended or supplemented in any case where such delivery is required by
the Act if the Company or the Selling Stockholders have previously furnished
copies thereof in sufficient quantity to such Underwriter and the loss, claim,
damage or liability of such Underwriter results from an untrue statement or
omission of a material fact contained in the Preliminary Prospectus which was
identified in writing at such time to such Underwriter and corrected in the
Prospectus or in the Prospectus as then amended or supplemented. Notwithstanding
the provisions of this subsection (c), 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.
(d) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for use
therein; and will reimburse the Company and each Selling Stockholder for any
legal or other
-23-
expenses reasonably incurred by the Company and such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(e) Promptly after receipt by an indemnified party under
subsection (a), (b), (c) or (d) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under each subsection, notify the
indemnifying party in writing of the commencement thereof; PROVIDED, HOWEVER,
that the omission so to notify the indemnifying party in the case of subsections
(a), (b), (c) and (d) shall not relieve it from any liability which it may have
to any indemnified party other than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party 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.
(f) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (d) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by 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 the indemnified party failed to give the notice
required under subsection (e) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of 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 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, the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (f) were determined by
pro rata allocation (even if the Underwriters
-24-
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (f). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (f) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (f), 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, and no Selling Stockholder shall be
required to contribute, in the aggregate, any amount in excess of the gross
proceeds received by such Selling Stockholder from the Shares sold by it
hereunder. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (f) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(g) The obligations of the Company and the Selling Stockholders under
this Section 8 shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 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, to each partner of any Selling Stockholder
that is a partnership and to each person, if any, who controls the Company or
any Selling Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Stockholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholders shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time
-25-
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 this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company,
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, or any partners of any Selling Stockholder that is a
partnership, and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. 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.
-26-
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: Secretary; PROVIDED,
HOWEVER, that any notice to an Underwriter pursuant to Section 8(e) 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, each partner of any Selling Stockholder that is a partnership 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 7 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.
-27-
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,
Gulfstream Aerospace Corporation
By:
Name:
Title:
Selling Stockholders
By:
Name:
Title:
As Attorney-in-Fact acting on behalf of each of
the Selling Stockholders named in Schedule II to
this Agreement.
Accepted as of the date hereof
Xxx Xxxx, Xxx Xxxx
Xxxxxxx, Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
By:
--------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
-28-
SCHEDULE I
NUMBER OF
OPTIONAL
TOTAL NUMBER SHARES TO BE
OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
Xxxxxxx, Xxxxx & Co . . . . . . . .
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated. . . . . . . .
Xxxxxx Xxxxxxx & Co. Incorporated .
Total . . . . . . . . . . ----------- -------------
___________ _____________
___________ _____________
-29-
SCHEDULE II
NUMBER OF OPTIONAL
TOTAL NUMBER SHARES TO BE
OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
The Selling Stockholders(a):
[NAME OF SELLING STOCKHOLDER]
[NAME OF SELLING STOCKHOLDER]
[NAME OF SELLING STOCKHOLDER]
[NAME OF SELLING STOCKHOLDER]
[NAME OF SELLING STOCKHOLDER]
Total
(a)The Selling Stockholders are represented by Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, XX 00000, and have appointed Xxx X.
Xxxxxx, Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxxx and each of them, as the
Attorneys-in-Fact for each of them.
-30-
ANNEX I(a)
Pursuant to Section 7(g) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter;
(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; and on the basis of
specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301 and 302, respectively, of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited 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;
-2-
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compliance 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 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 income from operations 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 Representative,
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;
(viii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other
-3-
procedures referred to in paragraphs (iii), (vi) and (vii) above, they
have, with respect to each customer who has orders for a Gulfstream IV-SP
and/or Gulfstream V, agreed the total amount of deposits and progress
payments of each such customer to the accounting records of the Company.
-4-
