Exhibit 1.1
4,264,000 Shares
XXXX'X CORPORATION
Common Stock
(par value $.01 per share)
UNDERWRITING AGREEMENT
March ___, 1999
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
c/o Morgan Xxxxxxx & Co.
Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxx Xxxxx International
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs:
Xxxx'x Corporation, a Wisconsin corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule I and II hereto
(the "Underwriters"), and certain shareholders of the Company (the "Selling
Shareholders") named in Schedule III hereto severally propose to sell to the
several Underwriters, an aggregate of 4,264,000 million shares of the Common
Shares (par value per share $.01), of the Company (the "Firm Shares") of which
2,800,000 million shares are to be issued and sold by the Company (the "Company
Firm Shares") and 1,464,000 million shares are to be sold by the Selling
Shareholders, each Selling Shareholder selling the amount set forth opposite
such Selling Shareholder's name in Schedule III hereto. The Company and the
Selling Shareholders are hereinafter collectively referred to as the "Sellers".
Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxx X. Xxxxx & Co. Incorporated and Xxxxxxx Xxxxx &
Company, L.L.C. shall act as representatives (the "Representatives") of the
several Underwriters.
It is understood that, subject to the conditions hereinafter stated,
3,411,200 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule
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I hereto (the "U.S. Underwriters") in connection with the offering and sale of
such U.S. Firm Shares in the United States and Canada to United States and
Canadian Persons (as such terms are defined in the Agreement Between U.S. and
International Underwriters of even date herewith), and 852,800 Firm Shares (the
"International Shares") will be sold to the several International Underwriters
named in Schedule II hereto (the "International Underwriters") in connection
with the offering and sale of such International Shares outside the United
States and Canada to persons other than United States and Canadian Persons.
Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx X. Xxxxx & Co. Incorporated and Xxxxxxx Xxxxx & Company,
L.L.C. shall act as representatives (the "U.S. Representatives") of the several
U.S. Underwriters, and Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxx Xxxxx
International, Xxxxxx X. Xxxxx & Co. Incorporated and Xxxxxxx Xxxxx & Company,
L.L.C. shall act as representatives (the "International Representatives") of the
several International Underwriters.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 639,600 shares of Common Shares (par
value $.01 per share) of the Company (the "Additional Shares"; and, together
with the Company Firm Shares, the "Company Shares"), if and to the extent that
the U.S. Representatives shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of Common Stock granted to
the U.S. Underwriters in Article III hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares". The Common
Shares (par value $.01 per share) of the Company are hereinafter referred to as
the "Common Stock".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, and including all documents incorporated by reference therein, the
exhibits thereto and the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares, including all documents incorporated by reference therein, are
hereinafter collectively referred to as the "Prospectus". The terms
"supplement", "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
If the Company files a registration statement to register additional
shares of Common Stock and relies on Rule 462(b) for such registration statement
to become effective upon
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filing with the Commission (the "Rule 462(b) Registration Statement"), then any
reference to the "Registration Statement" shall be deemed to refer to both the
registration statement referred to above and the Rule 462(b) Registration
Statement, in each case as amended from time to time.
I.
The Company represents and warrants to each of the Selling
Shareholders and each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before, and the Company does not
know of any such proceedings that are threatened by, the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any 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, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
(c) The Company is validly existing as a corporation in good standing
under the laws of the State of Wisconsin, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Xxxx'x Department Stores, Inc., a Delaware corporation, Kohl's
Receivables Corporation, a Wisconsin corporation, Kohl's Investment Company, a
Delaware
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Corporation, Xxxx'x Pennsylvania, Inc., a Pennsylvania corporation and Kohl's
Illinois, Inc., a Nevada corporation, are the only "significant subsidiaries"
of the Company (as such term is defined under Regulation S-X) and each is
validly existing as a corporation in good standing under the laws of the State
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(f) All the outstanding shares of Common Stock (including the Shares
to be sold by the Selling Shareholders) have been duly authorized and are
validly issued, fully paid and, subject to Wisconsin Business Corporation Law
(S) 180.0622(2)(b), nonassessable.
(g) The Company Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and, subject to Wisconsin Business Corporation Law (S)
180.0622(2)(b), nonassessable.
(h) This Agreement and each of the Power of Attorney and Custody
Agreement (each, a "Power of Attorney and Custody Agreement" and collectively,
the "Power of Attorney and Custody Agreements"), dated as of the date hereof,
between each Selling Shareholder and the Company, as Custodian (the
"Custodian"), relating to the deposit of, and/or the irrevocable exercise of
options with respect to, the Shares to be sold by such Selling Shareholder and
appointing certain individuals as such Selling Shareholder's attorneys-in-fact
to the extent set forth therein, relating to the transactions contemplated
hereby and by the Registration Statement, have been duly authorized, executed
and delivered by the Company.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Power of Attorney
and Custody Agreements and the issuance and delivery of the Company Shares
will not contravene any provision of applicable federal or state law or the
articles of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any federal or state governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of or qualification with any federal or state
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement or the Power of Attorney and Custody
Agreements, except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Shares.
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(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto effected
subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending, and the
Company does not know of any proceedings that are threatened, to which the
Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and
are not so described or any statutes, regulations, material contracts or other
documents that are required to be described in the Registration Statement or
the Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state,
local and other governmental, administrative or regulatory authorities, all
self-regulatory organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to conduct its business
in the manner described in the Prospectus, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(m) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder.
(n) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
(o) The Shares are listed on the New York Stock Exchange.
(p) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
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aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(q) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(r) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the Common
Stock (provided that the Company does not make any representation as to any
actions that may be taken by any Underwriter); and the Company has not
distributed and will not distribute any prospectus or other offering material
in connection with the offering and sale of the Shares other than any
preliminary prospectus filed with the Commission or the Prospectus or other
material permitted by the Securities Act.
(s) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations of the
Company or any of its subsidiaries will be affected by the Year 2000 Problem
(that is, any significant risk that computer hardware or software applications
used by the Company and its subsidiaries will not, in the case of dates or
time periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to January
1, 2000); as a result of such review, (i) the Company has no reason to
believe, and does not believe, that (A) there are any issues related to the
Company's preparedness to address the Year 2000 Problem that are of a
character required to be described or referred to in the Registration
Statement or Prospectus which have not been accurately described in the
Registration Statement or Prospectus and (B) the Year 2000 Problem will have a
material adverse effect on the condition, financial or otherwise, or on the
earnings, business or operations of the Company and its subsidiaries, taken as
a whole, or result in any material loss or interference with the business or
operations of the Company and its subsidiaries, taken as a whole; and (ii) the
Company reasonably believes, after due inquiry, that the suppliers, vendors,
customers or other material third parties used or served by the Company and
such subsidiaries are addressing or will address the Year 2000 Problem in a
timely manner, except to the extent that a failure to address the Year 2000
Problem by any supplier, vendor, customer or material third party would not
have a material adverse effect on the condition, financial or otherwise, or on
the earnings, business or operations of the Company and its subsidiaries,
taken as a whole.
II.
Each of the Selling Shareholders represents and warrants to each of
the Underwriters and the Company that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Shareholder.
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(b) The execution and delivery by such Selling Shareholder of, and
the performance by such Selling Shareholder of its obligations under, this
Agreement and the Power of Attorney and Custody Agreement of such Selling
Shareholder, will not contravene any provision of applicable federal or state
law or any agreement or other instrument binding upon such Selling Shareholder
or any judgment, order or decree of any federal or state governmental body,
agency or court having jurisdiction over such Selling Shareholder, and no
consent, approval, authorization or order of or qualification with any federal
or state governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement or the Power of
Attorney and Custody Agreement of such Selling Shareholder, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has valid and marketable title to the
Shares deposited by it pursuant to the Power of Attorney and Custody
Agreement, and on the Closing Date (as defined below) will have, valid and
marketable title to the Shares to be sold by such Selling Shareholder and the
legal right and power and all authorization and approval to enter into this
Agreement and the Power of Attorney and Custody Agreement, and to sell,
transfer and deliver the Shares to be sold by such Selling Shareholder.
(d) The Power of Attorney and Custody Agreement has been duly
authorized, executed and delivered by such Selling Shareholder and is a valid
and binding agreement of such Selling Shareholder.
(e) Delivery of the Shares to be sold by such Selling Shareholder
pursuant to this Agreement will pass marketable title to such Shares free and
clear of any security interests, claims, liens, equities and other
encumbrances.
(f) All information furnished by or on behalf of such Selling
Shareholder expressly for use in the Registration Statement and Prospectus
does not, and on the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make such
information not misleading.
(g) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock (provided that such Selling Shareholder does not make any
representation as to any actions that may be taken by any Underwriter); and
such Selling Shareholder has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Shares other than any preliminary prospectus filed with the Commission
or the Prospectus or other material permitted by the Securities Act.
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III.
The Company and each Selling Shareholder, severally and not jointly,
hereby agrees to sell to the several Underwriters, and each Underwriter, upon
the basis of the representations and warranties of the Company, with respect to
Firm Shares sold by it, and of the Selling Shareholders, with respect to Firm
Shares sold by them, herein contained, but subject to the conditions hereinafter
stated, agrees severally and not jointly, to purchase from the Sellers at $_____
a share (the "Purchase Price") the number of Firm Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may determine)
(x) in the case of the Company, that bears the same proportion to the number of
Firm Shares to be sold by the Company as the number of Firm Shares set forth in
Schedules I and II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares and (y) in the case of the Selling Shareholders,
that bears the same proportion to the number of Firm Shares to be sold by such
Selling Shareholders as the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees, to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 639,600
Additional Shares at the Purchase Price. If the U.S. Representatives, on behalf
of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on which
such shares are to be purchased. Such date may be the same as the Closing Date
(as defined below) but not earlier than the Closing Date nor later than ten
business days after the date of such notice. Additional Shares may be purchased
as provided in Article V hereof solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each U.S. Underwriter agrees, severally
and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule I
hereto opposite the name of such U.S. Underwriter bears to the total number of
Firm Shares.
Each Seller hereby agrees that without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"), it will not, for a period
of 90 days after the date of the Prospectus, (i) offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, other than any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock and issued
pursuant to employee benefit or employee stock option or ownership plans of the
Company which are in existence on the date of this Agreement, or (ii) enter into
any
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swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of such shares of Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, other
than (a) the sale of the Shares to the Underwriters pursuant to this Agreement,
(b) transactions relating to shares of Common Stock or other securities acquired
in open market transactions after completion of the public offering or (c) in
connection with the adoption of a stockholder rights plan, the distribution to
stockholders of the Company of a dividend consisting of a right to purchase, in
whole or in part, a share of preferred stock of the Company for each share of
Common Stock held by such stockholder.
In addition, each Selling Shareholder agrees that, without the prior
written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not,
for a period of 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
IV.
The Company and the Selling Shareholders are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company and the Selling
Shareholders are further advised by you that the Shares are to be offered to the
public initially at $____ a Share (the "Public Offering Price") and to certain
dealers selected by you at a price that represents a concession not in excess of
$____ a share under the public offering price, and that any Underwriter may
allow, and such dealers may reallow, a concession, not in excess of $_____ a
share, to any Underwriter or to certain other dealers.
V.
Payment for the Firm Shares to be sold by the Company and each Selling
Shareholder shall be made by wire transfers payable to the order of the Company
and the Custodian (or to the Company's registrar at the Custodian's direction),
as the case may be, in federal funds or other funds immediately available in New
York City against delivery of such Firm Shares for the respective accounts of
the several Underwriters at a closing to be held at the office of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., local time,
on ________, 1999, or at such other time on the same or such other date, not
later than __________, 1999, as shall be agreed to by you, the Company and the
Selling Shareholders. The time and date of each such payment are hereinafter
referred to as the "Closing Date".
Payment for any Additional Shares shall be made by wire transfers
payable to the order of the Company in federal funds or other funds immediately
available in New York City
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against delivery of such Additional Shares for the respective accounts of the
several U.S. Underwriters at a closing to be held at the office of Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., local time,
on such date (which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor later than five business days after the giving
of the notice hereinafter referred to) as shall be designated in a written
notice from the U.S. Representatives to the Company of your determination, on
behalf of the U.S. Underwriters, to purchase a number, specified in said notice,
of Additional Shares, or on such other date, in any event not later than
________, 1999, as shall be agreed to by the Representatives and the Company.
The time and date of such payment are hereinafter referred to as the "Option
Closing Date". The notice of the determination to exercise the option to
purchase Additional Shares and of the Option Closing Date may be given at any
time within 30 days after the date of this Agreement. The U.S. Underwriters
represent that the Additional Shares will be used only to cover over-allotments
made in connection with the offering of the Firm Shares.
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than two full business days prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
VI.
The obligations of the Company and each Selling Shareholder and the
several obligations of the Underwriters hereunder are subject to the condition
that the Registration Statement shall have become effective not later than the
date hereof.
The several obligations of the Underwriters hereunder are subject to
the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in or
contemplated by the Registration Statement, that is material and
adverse and that makes it, in your reasonable judgment, impracticable
to market the Shares on the terms and in the manner contemplated in
the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, on behalf of the Company,
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to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and
that the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of Xxxxxxx
& Xxxx, S.C., counsel for the Company, dated the Closing Date, to the
effect that:
(i) the Company is validly existing as a corporation in good
standing under the laws of the State of Wisconsin, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus;
(ii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(iii) all the outstanding shares of Common Stock (including the
Shares to be sold by the Selling Shareholders) have been duly
authorized and are validly issued, fully paid and, subject to
Wisconsin Business Corporation Law (S) 180.0622(2)(b), nonassessable.
(iv) the Company Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and, subject to Wisconsin Business
Corporation Law (S) 180.0622(2)(b), nonassessable.
(v) this Agreement and each of the Power of Attorney and
Custody Agreements and the issuance and delivery of the Company Shares
have been duly authorized, executed and delivered by the Company;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Power of Attorney and Custody Agreements and the issuance and
delivery of the Company Shares will not contravene any provision of
the law of the State of Wisconsin or the federal laws of the United
States applicable to the Company or the certificate of incorporation
or by-laws of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or any of
its subsidiaries which has been identified to such counsel by the
Company as one of such agreements or instruments that is material to
the Company and its subsidiaries, taken as a whole, or, to the best of
such counsel's knowledge, without independent investigation other than
inquiries of responsible officers of the
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Company, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of or
qualification with any federal or State of Wisconsin governmental body
or agency is required for the performance by the Company of its
obligations under this Agreement or the Power of Attorney or Custody
Agreements, except such as may be required by securities or Blue Sky
laws in connection with the offer and sale of the Shares by the
Underwriters;
(vii) the statements (1) in the Prospectus under the caption
"Description of Capital Stock" (2) in the Registration Statement under
Item 15 thereof and (3) to such counsel's knowledge, after due inquiry
of responsible officers of the Company, under the caption "Executive
Compensation--Employment Agreements" and "--Other Agreements" in the
Company's Proxy Statement for its Annual Meeting of Stockholders
immediately succeeding the filing of the Company's last annual report,
in each case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters referred to
therein;
(viii) after due inquiry, without independent investigation other
than inquiries of responsible officers of the Company, such counsel
does not know of any legal or governmental proceeding pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
of any statutes, regulations, material contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or
incorporated as required;
(ix) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(x) the statements in the Prospectus under the caption "United
States Federal Income Tax Considerations to Non-United States Holders"
insofar as such statements constitute a summary of the United States
federal tax laws referred to therein, are accurate and fairly
summarize the United States federal tax laws referred to therein; and
(xi) (1) each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when so filed as
to form in all material respects with the Exchange Act and the
applicable rules and regulations of
13
the Commission thereunder and (2) the Registration Statement, as of
its effective date, and the Prospectus, as of its date and as of the
Closing Date, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Securities Act and
the rules and regulations of the Commission thereunder, except that,
in each case, such counsel need not express any opinion as to the
financial statements, schedules and other financial data included in
or excluded from such documents filed pursuant to the Exchange Act or
the Registration Statement and such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in such documents filed pursuant to the Exchange
Act or in the Registration Statement and the Prospectus (other than as
specified in subparagraphs (viii) and (xi) above insofar as the
captions referred to therein relate to provisions of documents and
other legal matters); and
(xii) in addition, such opinion shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company, and with your representatives and your counsel at which
the contents of the Registration Statement, the Prospectus and related
matters were discussed and, although such counsel need not pass upon
or assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or
the Prospectus and need not make any independent check or verification
thereof (other than as specified in subparagraphs (viii) and (xi)
above insofar as the captions referred to therein relate to provisions
of documents), on the basis of the foregoing, no facts have come to
the attention of such counsel which have led such counsel to believe
that the Registration Statement, at the time it became effective,
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its
date and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that such counsel need
not express any opinion as to the financial statements, schedules and
other financial data included in or excluded from the Registration
Statement. Such counsel may also state in such opinion that (i)
whenever such counsel indicates that the opinion is with respect to
matters within the "knowledge of" or "known by" such counsel, such
knowledge means the representations and warranties of the Company
contained in this Agreement and in the documents delivered on the
Closing Date by the Company pursuant to this Agreement, and the
current conscious awareness of facts of the attorneys currently
practicing law with such firm who had involvement in the transaction
or such other attorneys presently in the firm whom such counsel has
determined are likely, in the course of representing the Company, to
have knowledge of the matters covered by the opinion, and that (ii)
such opinion is limited to the laws of the United States, the State of
Wisconsin and the General Corporation Law of the State of Delaware.
14
(d) you shall have received on the Closing Date an opinion of Xxxxxxx
& Xxxx, S.C., counsel for the Selling Shareholders, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Shareholders;
(ii) the execution and delivery by each Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations
under, this Agreement and the Power of Attorney and Custody Agreement
of such Selling Shareholder will not contravene any provision of the
laws of the State of Wisconsin or the federal laws of the United
States applicable to each Selling Shareholder or, to the best of such
counsel's knowledge, without independent investigation other than
inquiry of such Selling Shareholder, any agreement or other instrument
binding upon such Selling Shareholder or, to the best of such
counsel's knowledge, without independent investigation other than
inquiry of such Selling Shareholder, any judgment, order or decree of
any governmental body, agency or court having jurisdiction over such
Selling Shareholder, and no consent, approval, authorization or order
of or qualification with any federal or State of Wisconsin
governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement or the
Power of Attorney and Custody Agreement of such Selling Shareholder,
except such as have been obtained or such as may be required by
securities or Blue Sky laws in connection with the offer and sale of
the Shares;
(iii) each of the Selling Shareholders has the legal right and
power, and all authorization and approval required by federal or State
of Wisconsin law, to enter into this Agreement and the Power of
Attorney and Custody Agreement of such Selling Shareholder and to
sell, transfer and deliver the Shares to be sold by such Selling
Shareholder;
(iv) the Power of Attorney and Custody Agreement of each Selling
Shareholder has been authorized, executed and delivered by such
Selling Shareholder and is a valid and binding agreement of such
Selling Shareholder; and
(v) delivery of the Shares to be sold by each Selling Shareholder
pursuant to this Agreement will pass marketable title to such Shares
free and clear of any security interests, claims, liens, equities and
other encumbrances to each of the several Underwriters who have
purchased Shares in good faith and without notice of any such security
interest, claim, lien, equity, encumbrance or any other adverse claim
within the meaning of the Uniform Commercial Code.
(e) You shall have received on the Closing Date an opinion of Xxxxxx
Xxxxx, Vice President and General Counsel of the Company, to the effect that:
15
(i) the Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries taken as
a whole;
(ii) each of Xxxx'x Department Stores, Inc., Kohl's Receivables
Corporation, Kohl's Investment Company, Xxxx'x Pennsylvania, Inc. and
Kohl's Illinois, Inc., is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) each of Xxxx'x Department Stores, Inc., Kohl's Receivables
Corporation, Kohl's Investment Company, Xxxx'x Pennsylvania, Inc., and
Kohl's Illinois, Inc., is validly existing as a corporation in good
standing under the laws of its state of incorporation, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus, to such counsel's knowledge; and
(iv) the statements (1) to such counsel's knowledge, after due inquiry
of responsible officers of the Company, in "Item 3 -- Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by
reference in the Prospectus and (2) to such counsel's knowledge, after due
inquiry of responsible officers of the Company, in "Item 1 -- Legal
Proceedings" of Part II of the Company's quarterly reports on Form 10-Q, if
any, filed since such annual report, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein.
(f) You shall have received on the Closing Date an opinion of Shearman
& Sterling, special counsel for the Underwriters, dated the Closing Date.
With respect to subparagraphs (xi) and (xii) of paragraph (c) above, Xxxxxxx &
Xxxx, S.C. and, with respect to paragraph (f) above, Shearman & Sterling may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof and the
documents incorporated by reference therein, but are without independent check
or verification, except as specified.
With respect to paragraph (d) above, Xxxxxxx & Xxxx, S.C. may rely upon the
representations of each Selling Shareholder contained herein and in the Power of
Attorney and Custody Agreement of such Selling Shareholder and in other
documents and instruments; provided
16
that copies of such Power of Attorney and Custody Agreement and of any such
other documents and instruments shall be delivered to you and shall be in form
and substance satisfactory to your counsel.
The opinions of Xxxxxxx & Xxxx, S.C. described in paragraphs (c) and (d)
above shall be rendered to you at the request of the Company and the Selling
Shareholders, respectively, and shall so state therein.
(g) You shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form
and substance satisfactory to you, from Ernst & Young LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(h) You shall have received on the Closing Date certificates dated the Closing
Date and signed by the Selling Shareholders or by an attorney-in-fact of the
Selling Shareholders, to the effect that the representations and warranties of
each Selling Shareholder contained in this Agreement are true and correct as of
the Closing Date and that each Selling Shareholder has complied with all of the
agreements and satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on the
Option Closing Date of such documents as they may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Additional Shares and other matters related to the issuance of the
Additional Shares.
VII.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish to you, without charge, three signed copies of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
you may reasonably request. In the case of the Prospectus, to furnish copies of
the Prospectus in New York City prior to 5:00 p.m. on the business day following
the date of this Agreement, in such quantities as you reasonably request.
17
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and to file no such proposed amendment or supplement to which you
reasonably object unless, in the reasonable judgment of the Company and its
counsel, such amendment or supplement is necessary to comply with law or to
make the statements therein not misleading.
(c) If, during such period after the first date of the public offering of
the Shares as in the opinion of your counsel the Prospectus is required by law
to be delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of your counsel, it is
necessary to amend or supplement the Prospectus to comply with law, forthwith
to prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish to
the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to maintain such qualification for as long as you shall reasonably
request and to pay all expenses (including reasonable fees and disbursements
of counsel) in connection with such qualification, provided that the Company
shall not be obligated to so qualify the Shares if such qualification requires
it to file any general consent to service of process or to register or qualify
as a foreign corporation in any jurisdiction in which it is not so registered
or qualified.
(e) To make generally available to the Company's security holders and
to you, as soon as practicable, an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the preparation and filing of the Registration Statement and
the Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Shares, including any transfer or
other taxes payable on the Company Shares, (iii) the fees and disbursements of
the Company's counsel and accountants and of the counsel and accountants for
the Selling Shareholders, (iv) the qualification of the Shares under
securities or Blue Sky laws in accordance with paragraph (d) above, including
filing fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Memoranda, (v) the printing and delivery to the
18
Underwriters in quantities as hereinabove stated of copies of the Registration
Statement and all amendments thereto and of the Prospectus and any amendments
or supplements thereto, (vi) the costs and charges of any transfer agent,
registrar or depositary, (vii) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in connection with the
marketing of the public offering of the Shares, including, without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expense of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the
road show and (viii) all other costs and expenses incident to the performance
of the obligations of the Company and the Selling Shareholders hereunder for
which provision is not otherwise made in this Section.
VIII.
Each Selling Shareholder, severally and not jointly, agrees to pay or
cause to be paid all taxes, if any, on the transfer and sale of the Shares
being sold by such Selling Shareholder.
IX.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
19
The Company will indemnify and hold harmless each of the Selling
Shareholders to the same extent that the Company indemnifies and holds harmless
each Underwriter pursuant to the preceding paragraph; provided, however, the
Company shall not be liable under this paragraph to the extent any losses,
claims, damages or liabilities described in the preceding paragraph arise out of
or are based upon an untrue statement or omission or alleged untrue statement or
omission based upon information relating to such Selling Shareholder furnished
in writing by or on behalf of such Selling Shareholder expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
Each Selling Shareholder agrees, severally and not jointly, to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only with reference to information
relating to such Selling Shareholder furnished in writing by or on behalf of
such Selling Shareholder expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Selling Shareholders, the directors of the Company,
the officers of the Company who sign the Registration Statement and each person,
if any, who controls the Company or any Selling Shareholder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to any of the four preceding
20
paragraphs, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing (but the failure to so notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party otherwise than
under this Article IX) and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (b) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section, (c)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Selling Shareholders and all persons, if any, who control any
Selling Shareholder within the meaning of either such Section and all persons,
if any, who control any of such Selling Shareholders within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be designated in
writing by Xxxxxx Xxxxxxx & Co. Incorporated. In the case of any such separate
firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Shareholders and such controlling persons
of Selling Shareholders, such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder
21
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first, second, third or fourth
paragraph of this Article IX is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Shareholders on the one hand and the Underwriters on the other
hand in connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and each Selling Shareholder
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Shares. The
relative fault of the Company and the Selling Shareholders on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Article IX
are several in proportion to the respective number of Shares they have purchased
hereunder, and not joint.
The Company, the Selling Shareholders and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Article IX were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, 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 Article IX, 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 that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the
22
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Article IX are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article IX and
the representations and warranties of the Company and the Selling Shareholders
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter,
any Selling Shareholder or any person controlling any Selling Shareholder, or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
The liability of each Selling Shareholder under this Article IX shall not
exceed an amount equal to the initial Public Offering Price of the Shares sold
by such Selling Shareholder, less the applicable underwriting discounts and
commissions.
X.
This Agreement shall be subject to termination by notice given by you to
the Sellers, if (a) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event singly or together with any other such event makes it, in your reasonable
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
XI.
This Agreement shall become effective upon the later of (x) execution and
delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement by the Commission.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase
23
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions
that the number of Firm Shares set forth opposite their respective names in
Schedule I or Schedule II bears to the aggregate number of Firm Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Article XI by an amount in excess of one-ninth of such number of Shares without
the written consent of such Underwriter. If, on the Closing Date or the Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Shares and the aggregate number of Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Shares to be purchased on such date, and arrangements satisfactory to you, the
Company and the Selling Shareholders for the purchase of such Shares are not
made within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Selling
Shareholders or the Company. In any such case you, the Selling Shareholders or
the Company shall have the right to postpone the Closing Date or the Option
Closing Date, as the case may be, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company or any Selling
Shareholder to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or the Selling Shareholder shall be
unable to perform its obligations under this Agreement, the Company and the
Selling Shareholders will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder; provided that neither the Company nor any
Selling Shareholder shall have any further liability to any Underwriter
(including any liability for damages, including loss of anticipated profits) for
any termination of this Agreement, except as provided in Article IX hereof.
24
This Agreement may be signed in two or more counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
This Agreement shall be governed by the laws of the State of New York.
Very truly yours,
XXXX'X CORPORATION
By
-----------------------
Name:
Title:
The Selling Shareholders named in Schedule III hereto, acting severally
By
-----------------------
Attorney-in-Fact
Name:
Accepted, March ___, 1999
Xxxxxx Xxxxxxx & Co.
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Company, L.L.C.
Acting severally on behalf of themselves
and the several U.S. Underwriters
named in Schedule I hereto.
By Xxxxxx Xxxxxxx & Co.
Incorporated
By
----------------------
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
25
XXXXXXX XXXXX INTERNATIONAL
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXXX XXXXX & COMPANY, L.L.C.
Acting severally on behalf of themselves
and the several International Underwriters
named in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By:
---------------------------
Name:
Title:
26
SCHEDULE I
U.S. Underwriters
-----------------
---------------------------------------------------------------------
Underwriters Number of
------------ Firm Shares
To Be Purchased
---------------
---------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated
---------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
---------------------------------------------------------------------
Xxxxxx X. Xxxxx & Co. Incorporated
---------------------------------------------------------------------
Xxxxxxx Xxxxx & Company, L.L.C.
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------
---------------------------------------------------------------------
Total U.S. Firm Shares 3,411,200
===============
=====================================================================
SCHEDULE II
International Underwriters
---------------------------
---------------------------------------------------------------------
Underwriters Number of
------------ Firm Shares
To Be Purchased
---------------
---------------------------------------------------------------------
Xxxxxx Xxxxxxx International Limited
---------------------------------------------------------------------
Xxxxxxx Xxxxx International
---------------------------------------------------------------------
Xxxxxx X. Xxxxx & Co. Incorporated
---------------------------------------------------------------------
Xxxxxxx Xxxxx & Company, L.L.C.
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------
---------------------------------------------------------------------
Total International Firm Shares 852,800
===============
---------------------------------------------------------------------
SCHEDULE III
Selling Shareholders
--------------------
---------------------------------------------------------------------
Selling Shareholder Number of
------------------- Firm Shares
To Be Sold
------------
---------------------------------------------------------------------
Xxxxxxx X. Xxxxxxx 559,300
---------------------------------------------------------------------
Xxx X. Xxxxx 300,000
---------------------------------------------------------------------
Xxx X. Xxxxx Children's Trust FBO Xxxxxxxxx X. Xxxxx 50,000
---------------------------------------------------------------------
Xxx X. Xxxxx Children's Trust FBO Xxxxxxx X. Xxxxx 50,000
---------------------------------------------------------------------
Xxxx X. Xxxxx 341,100
---------------------------------------------------------------------
R. Xxxxxxxx Xxxxxxxxxx 41,000
---------------------------------------------------------------------
Xxxxx Xxxxxxx 32,000
---------------------------------------------------------------------
Xxxxx Xxxxx 34,900
---------------------------------------------------------------------
Xxxxxxx Xxxxxxx 6,500
---------------------------------------------------------------------
Xxxxxx Xxxxx 19,500
---------------------------------------------------------------------
Xxxx Xxxxxxx 4,000
---------------------------------------------------------------------
Xxxxxx Xxxxxxx 4,200
---------------------------------------------------------------------
Xxxxxxx Xxxx 3,000
---------------------------------------------------------------------
Xxxxx X. Xxxxxxxxxxxx 18,500
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
------------
Total Firm Shares 1,464,000
============
---------------------------------------------------------------------
