XXXX XXXXX XXXXXX CORPORATION
CLASS A COMMON STOCK
(PAR VALUE $.01 PER SHARE)
-----------
UNDERWRITING
AGREEMENT
(INTERNATIONAL
VERSION)
--------------
June 11, 1997
Xxxxxxx Sachs International
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx & Co. International Limited
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman Sachs International,
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx.
Ladies and Gentlemen:
Xxxx Xxxxx Xxxxxx Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated
herein, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") an aggregate of 1,911,865 shares and,
at the election of the Underwriters, up to 360,000 additional
shares of Class A Common Stock, par value $.01 per share (the
"Stock"), of the Company, and the stockholders of the Company
named in Schedule II hereto (the "Selling Stockholders") propose,
subject to the terms and conditions stated herein, to sell to the
Underwriters an aggregate of 4,088,135 shares and, at the
election of the Underwriters, up to 540,000 additional shares of
Stock. The aggregate of 6,000,000 shares to be sold by the
Company and the Selling Stockholders is herein called the "Firm
Shares" and the aggregate of 900,000 additional shares to be sold
by the Company and certain of the Selling Stockholders is herein
called the "Optional Shares." The Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the "Shares."
It is understood and agreed to by all parties that the
Company and the Selling Stockholders are concurrently entering
into an agreement, a copy of which is attached hereto (the
"U.S. Underwriting Agreement"), providing for the offering by the
Company and the Selling Stockholders of up to a total of
27,025,000 shares of Stock (the "U.S. Shares") including the
overallotment option thereunder through arrangements with certain
underwriters in the United States (the "U.S. Underwriters"), for
whom Xxxxxxx, Sachs & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated are acting as
representatives. Anything herein and therein to the contrary
notwithstanding, the respective closings under this Agreement and
the U.S. Underwriting Agreement are hereby expressly made
conditional on one another. The Underwriters hereunder and the
U.S. 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 and for consultation by the Lead Managers hereunder
with Xxxxxxx, Sachs & Co. prior to exercising the rights of the
Underwriters under Section 7 hereof. 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 U.S. 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, 10
and 12 herein, and except as the context may otherwise require,
references hereinafter to the Shares shall include all of the
shares of Stock which may be sold pursuant to either this
Agreement or the U.S. Underwriting Agreement, and references
herein to any prospectus whether in preliminary or final form,
and whether as amended or supplemented, shall include both of the
U.S. and the international versions thereof.
In addition, this Agreement incorporates by reference
certain provisions from the U.S. Underwriting Agreement
(including the related definitions of terms, which are also used
elsewhere herein) and, for purposes of applying the same,
references (whether in these precise words or their equivalent)
in the incorporated provisions to the "Underwriters" shall be to
the Underwriters hereunder, to the "Shares" shall be to the
Shares hereunder as just defined, to "this Agreement" (meaning
therein the U.S. Underwriting Agreement) shall be to this
Agreement (except where this Agreement is already referred to or
as the context may otherwise require) and to the representatives
of the Underwriters or to Xxxxxxx, Xxxxx & Co. shall be to the
addressees of this Agreement and to Xxxxxxx Sachs International
("GSI"), and, in general, all such provisions and defined terms
shall be applied MUTATIS MUTANDIS as if the incorporated
provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting
Agreement.
1. (a) The Company hereby makes with the Underwriters the
same representations, warranties and agreements as are set forth
in Section 1(a) of the U.S. Underwriting Agreement, which Section
is incorporated herein by this reference.
(b) Each of the Selling Stockholders hereby makes with the
Underwriters the same representations, warranties and agreements
as are set forth in Seciton 1(b) of the U.S. Underwriting
Agreement, which Section is incorporated herein by this
reference.
2. Subject to the terms and conditions herein set forth, (a)
the Company and each of the Selling Stockholders agree, severally
and not jointly, to sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Company and each of the Selling Stockholders, at a
purchase price per share of $24.57, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto
(to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Firm Shares to
be sold by the Company and 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 Company and
all of the Selling Stockholders hereunder and (b) in the event
and to the extent that the Underwriters shall exercise the
election to purchase Optional Shares as provided below, the
Company and certain of the Selling Stockholders agree, severally
and not jointly, to sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Company and such 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. For purposes of
facilitating the sale of Shares by the GS Selling Stockholders
(as defined in Section 1(b) of the U.S. Underwriting Agreement)
pursuant to clause (a) of this Section 2, pursuant to the U.S.
Underwriting Agreement, each of the representatives of the U.S.
Underwriters has agreed, severally and not jointly, to purchase
from each of the GS Selling Stockholders at the purchase price
per share set forth in clause (a) of this Section 2, the number
of Firm Shares of each of the GS Selling Stockholders as set
forth opposite the respective names of the representatives of the
U.S. Underwriters in Schedule III hereto and Schedule III to the
U.S. Underwriting Agreement (the "Note Shares") at the Note Time
of Delivery (as defined in Section 4 hereof) against payment by
each such representative of the purchase price therefor by
delivery of a Note (as defined in Section 2 of the U.S.
Underwriting Agreement). The numbers of shares of each
respective Underwriter is severally obligated to purchase, as set
forth in Schedule I hereto, shall not be affected by the
foregoing arrangements.
The Company and certain of the Selling Stockholders as and
to the extent indicated in Schedule II hereto, hereby grant,
severally and not jointly, to the Underwriters the right to
purchase at their election up to 900,000 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. In the event of any such election to purchase
Optional Shares, all of the Optional Shares to be sold by Xxxxx
Xxxxxx as set forth on Schedule II shall be purchased prior to
any Optional Shares to be sold by the Company as set forth on
Schedule II hereto. Any such election to purchase Optional
Shares may be exercised only by written notice from you to the
Company and such Selling Stockholders, given within a period of
30 calendar days after the date of this Agreement, setting forth
the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless you and the
Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by GSI 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 and in the forms of Agreement among Underwriters
(International Version) and Selling Agreements, which have been
previously submitted to the Company by you. Each Underwriter
hereby makes to and with the Company and the Selling Stockholders
the representations and agreements of such Underwriter as a
member of the selling group contained in Sections 3(d) and 3(e)
of the form of Selling Agreements.
4. (a) The Shares to be purchased by the representatives
of the U.S. Underwriters in exchange for Notes, in definitive
form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. has previously requested by notice
to the Company and the GS Selling Stockholders shall be delivered
by or on behalf of the GS Selling Stockholders to Xxxxxxx, Xxxxx
& Co., for the accounts of the representatives of the U.S.
Underwriters against delivery by or on behalf of the
representatives of the U.S. Underwriters of the Notes.
Certificates for the Shares to be purchased by each Underwriter
hereunder (other than Shares to be purchased in exchange for
Notes), in definitive or temporary form, and in such authorized
denominations and registered in such names as GSI may request
upon at least forty-eight hours' prior notice to the Company and
the Selling Stockholders shall be delivered by or on behalf of
the Company and the Selling Stocokholders to GSI, for the account
of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer,
payable to the order of the Company and each of the Selling
Stockholders in Federal (same day) funds. The Company will cause
the certificates representing the Shares (other than Shares to be
purchased in exchange for Notes) 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 GSI, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Designated Office"). The time and date of such delivery and
payment shall be (i) with respect to the Firm Shares to be
purchased in exchange for Notes, immediately following the
execution of this Agreement and the satisfaction of the
conditions set forth in Section 7 hereof, (ii) with respect to
all other Firm Shares, 9:30 a.m., New York City time, on June 17,
1997 or such other time and date as GSI and the Company 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 GSI in the
written notice given by GSI of the Underwriters' election to
purchase such Optional Shares, or such other time and date as
GSI, the Company and the Selling Stockholders may agree upon in
writing. Such time and date for delivery of the Firm Shares to
be purchased in exchange for Notes is herein called the "Note
Time of Delivery," 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 8 of
the U.S. Underwriting Agreement, including the cross receipt for
the Shares and any additional documents reasonably requested by
the Underwriters pursuant to Section 8(k) of the U.S.
Underwriting Agreement hereof, will be delivered at the offices
of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and
the Shares will be delivered at the Designated Office, all at
such Time of Delivery. A meeting will be held at the Closing
Location at 2 p.m., New York City time, on the New York Business
Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business
Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New
York are generally authorized or obligated by law or executive
order to close.
5. The Company hereby makes to the Underwriters the same
agreements as are set forth in Section 6 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this
reference.
6. The Company, each of the Selling Stockholders and the
Underwriters hereby agree with respect to certain expenses on the
same terms as are set forth in Section 7 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this
reference.
7. Subject to the provisions of the Agreement between
Syndicates, the obligations of the Underwriters hereunder shall
be subject, in their discretion, at each Time of Delivery, to the
condition that all representations and warranties and other
statements of the Company and, in the case of the Note Time of
Delivery and the First Time of Delivery, of the Selling
Stockholders, herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company and, in the case
of the Note Time of Delivery and the First Time of Deilvery, the
Selling Stockholders, shall have performed all of their
obligations hereunder theretofore to be performed, and additional
conditions identical to those set forth in Section 8 of the
U.S. Underwriting Agreement, which Section is incorporated herein
by this reference.
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 investigating or defending
any such action or claim as such expenses are incurred; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through GSI expressly for use therein.
(b) Each of the Selling Stockholders 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 in the
Registration Statement or any amendment or supplement thereto not
misleading or to make the statements in any Preliminary
Prospectus or the Prospectus not misleading in light of the
circumstances under which they were made, 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 will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that such Selling
Stockholder shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
through GSI expressly for use therein; PROVIDED, FURTHER, that
the liability of such Selling Stockholder pursuant to this
subsection (b) shall not exceed the product of the number of
Shares sold by such Selling Stockholder (including any Optional
Shares) and the initial public offering price as set forth in the
Prospectus.
(c) Each Underwriter will indemnify and hold harmless the
Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling
Stockholder may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or Prospectus or any such
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through GSI expressly for use therein; and will reimburse the
Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of
any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection except to the extent that such indemnifying party is
prejudiced by the failure to give such notice. 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 a single counsel (in addition to any local counsel)
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. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on
behalf of any indemnified party. Notwithstanding anything to the
contrary contained herein, an indemnifying party will not be
liable for settlement of any claim or action effected without its
prior written consent, which consent shall not be unreasonably
withheld.
(e) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a), (b) or (c) above in respect of any
losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the
Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (d)
above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the
other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
Company and the Selling Stockholders 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 relating to such Shares. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling
Stockholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, each of the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (e) were determined by
PRO RATA allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling
Stockholders under this Section 8 shall be in addition to any
liability which the Company and the respective Selling
Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who,
with his or her consent, is named in the Registration Statement
as someone who will beocme a director of the Company and who
becomes such a director) and to each person, if any, who controls
the Company or any Selling Stockholder within the meaning of the
Act.
9. (a) The Company will indemnify and hold harmless
Xxxxxx Xxxxxxx & Co. Incorporated, in its capacity as QIU (as
defined in Section 3 of the U.S. Underwriting Agreement), against
any losses, claims, damages or liabilities, joint or several, to
which the QIU 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 the QIU for any legal or other
expenses reasonably incurred by the QIU in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(b) The Company also agrees to indemnify and hold harmless
Xxxxxx Xxxxxxx & Co. Incorporated and each person, if any, who
controls Xxxxxx Xxxxxxx & Co. Incorporated within the meaning of
either Section 15 of the Act, or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities
and judgments incurred as a result of Xxxxxx Xxxxxxx & Co.
Incorporated's participation as a "qualified independent
underwriter" within the meaning of Rule 2720 of the National
Association of Securities Dealers' Conduct Rules in connection
with the offering of the Shares except for any losses, claims,
damages, liabilities and judgments found in a final judgment by a
court to have resulted from Xxxxxx Xxxxxxx & Co. Incorporated's,
or such controlling person's willful misconduct or gross
negligence.
(c) Promptly after receipt by the QIU under subsection (a)
and (b) above of notice of the commencement of any action, the
QIU shall, if a claim in respect thereof is to be made against
the Company under such subsection, notify the Company in writing
of the commencement thereof; but the omission so to notify the
Company shall not relieve it from any liability which it may have
to the QIU otherwise than under such subsection, except to the
extent that the Company is prejudiced by the failure to give such
notice. In case any such action shall be brought against the QIU
and it shall notify the Company of the commencement thereof, the
Company 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 a
single counsel (in addition to any local counsel) satisfactory to
the QIU (who shall not, except with the consent of the QIU, be
counsel to the Company), and, after notice from the indemnifying
party to the QIU of its election so to assume the defense
thereof, the indemnifying party shall not be liable to the QIU
under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by the
QIU, in connection with the defense thereof other than reasonable
costs of investigation. The Company shall not, without the
written consent of the indemnified party, effect the settlement
or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the QIU is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the QIU from all
liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of the QIU. Notwithstanding
anything contained herein to the contrary, if indemnity may be
sought pursuant to Sections 9(a) and 9(b) hereof in respect of
such action or proceeding, then in addition to a separate firm
for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one
separate firm (in addition to any local counsel) for Xxxxxx
Xxxxxxx & Co. Incorporated in its capacity as a "qualified
independent underwriter" and all persons, if any, who control
Xxxxxx Xxxxxxx & Co. Incorporated within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act.
(d) If the indemnification provided for in this Section 9
is unavailable to or insufficient to hold harmless Xxxxxx
Xxxxxxx & Co. Incorporated, in its capacity as QIU, under
subsection (a) and (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the
amount paid or payable by the QIU 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 on the one hand and the QIU on
the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the QIU failed to give the
notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or
payable by the QIU in such proportion as is appropriate to
reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the QIU 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 Company
on the one hand and the QIU on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company, as set forth
in the table on the cover page of the Prospectus, bear to the fee
payable to the QIU. 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 on the one hand or the QIU on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the QIU agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The
amount paid or payable by the QIU as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. 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.
(e) The obligations of the Company under this section 9
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the QIU within
the meaning of the Act.
10. (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 Company and 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 Company and the
Selling Stockholders that you have so arranged for the purchase
of such Shares, or the Company and the Selling Stockholders
notify you that they have so arranged for the purchase of such
Shares, you or the Company and 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 Company 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 the Shares to be purchased at such
Time of Delivery, then the Company and 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 Company 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 the Shares to be purchased at such Time
of Delivery, or if the Company and 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 obligation of
the Underwriters to purchase and of the Company and certain
Selling Stockholders to sell the Optional Shares) shall thereupon
terminate, without liability on the part of any non--defaulting
Underwriter or the Company and the Selling Stockholders, except
for the expenses to be borne by the Company and the Selling
Stockholders and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Sections 8 and 9
hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
11. The respective indemnities, agreements,
representations, warranties and other statements of the Company,
the Selling Stockholders, and the several Underwriters, as set
forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or the
Company, or any of the Selling Stockholders, or any officer or
director or controlling person of the Company or any controlling
person of any Selling Stockholder, and shall survive delivery of
and payment for the Shares.
12. If this Agreement shall be terminated pursuant to
Section 10 hereof neither the Company nor the Selling
Stockholders shall then be under any liability to any Underwriter
except as provided in Section 6, Section 8 and Section 9 hereof,
but, if for any other reason any Shares are not delivered by or
on behalf of the Company and the Selling Stockholders as provided
herein, the Company will reimburse the Underwriters through GSI
for all out--of--pocket expenses approved in writing by GSI,
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, 8 and 9 hereof.
Anything herein to the contrary notwithstanding, the
indemnity agreement of the Company in subsection (a) of Section 8
hereof, the representations and warranties in subsections (a)(ii)
and (a)(iii) of Section 1 hereof and any representation or
warranty as to the accuracy of the Registration Statement or the
Prospectus contained in any certificate furnished by the Company
pursuant to Section 7 hereof, insofar as they may constitute a
basis for indemnification for liabilities (other than payment by
the Company of expenses incurred or paid in the successful
defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of a
controlling person or partner of an Underwriter who is a
director, officer or controlling person of the Company when the
Registration Statement has become effective, in each case to the
extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against
public policy as expressed in the Act. Unless in the opinion of
counsel for the Company the matter has been settled by
controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate
jurisdiction the question of whether such interest is against
public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
13. 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 GSI on your behalf; and in all dealings with any of
the GS Selling Stockholders hereunder, you and the Company shall
be entitled to act and rely upon any statement, request, notice
or agreement on behalf of such GS Selling Stockholders made or
given by either of the Attorneys-in-Fact for such GS Selling
Stockholders.
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 the
Underwriters in care of GSI, Peterborough Court, 000 Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Equity Capital
Markets, Telex No. 94012165, facsimile transmission No. (071) 774-
1550; if to any Selling Stockholders shall be delivered or sent
by mail, telex or facsimile transmission to counsel for such
Selling Stockholders at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by
registered 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(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Stockholders by GSI upon
request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
14. 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, 9 and 11
hereof, the officers and directors of the Company and each person
who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement.
No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA.
17. 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 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 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
(International Version), the form of which shall be furnished to
the Company for examination uponrequest, but without warranty on your
part as to the authority of the signers thereof.
Very truly yours,
XXXX XXXXX LAUREN CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman and Chief
Operating Officer
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
Accepted as of the date STONE STREET FUND 1994, L.P.
hereof:Xxxxxxx Xxxxx By: Stone Street Funding Corp.,
International Merrill General Partner
Xxxxx International
Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
International Limited ---------------------------------
By: Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxxx
By: International Title: Vice President
BRIDGE STREET FUND 1994, L.P.
By: /s/ Xxxxxx Xxxxxxx By: Xxxxx Street Funding Corp.,
(Attorney-in-Fact) Managing General Partner
On behalf of each of By: /s/ Xxxxxxx X. Xxxxxxxx
the Underwriters ---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
/s/ Xxxxx Lauren
------------------------------------
XXXXX XXXXXX
XXXXX XXXXXX 1997 CHARITABLE
REMAINDER UNITRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx*
Title: Trustee
* In his representative capacity as
trustee only and not in his
individual capacity.
SCHEDULE I
NUMBER OF
TOTAL NUMBER OPTIONAL SHARES
OF TO BE PURCHASED
FIRM SHARES IF MAXIMUM
TO BE OPTION
UNDERWRITER PURCHASED EXERCISED
------------ ----------- --------------
Xxxxxxx Sachs International 1,520,000 228,000
Xxxxxxx Xxxxx International 1,520,000 228,000
Xxxxxx Xxxxxxx & Co. International 1,520,000 228,000
Limited
Credit Lyonnais Securities 180,000 27,000
Den Danske Bank Aktieselskab 180,000 27,000
ING Bank N.V. 180,000 27,000
Kleinwort Xxxxxx Limited 180,000 27,000
Mediobanca - Banca di Credito 180,000 27,000
Finanziario S.p.A.
Nikko Europe Plc 180,000 27,000
J. Xxxxx Xxxxxxxx & Co. Limited 180,000 27,000
Yamaichi International (Europe) 180,000 27,000
Limited
--------- ---------
Total 6,000,000 900,000
========= =========
SCHEDULE II
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL SOLD IF
NUMBER OF MAXIMUM
FIRM SHARES OPTION
TO BE SOLD EXERCISED
---------- -----------
The Company. 1,911,865 360,000
The Selling Stockholder(s):
Xxxxx Lauren (a) 894,915 540,000
Xxxxx Xxxxxx 1997 Charitable 2,745,763 0
Remainder Unitrust (b)
GS Capital Partners, L.P. (c) 422,599 0
Stone Street Fund 1994, L.P. (c) 12,143 0
Bridge Street Fund 1994, L.P. (c) 12,715 0
----------- -------------
Total 6,000,000 900,000
--------- =============
----------
(a)This Selling Stockholder is represented by Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(b)This Selling Stockholder is represented by Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
(c)This Selling Stockholder is represented by Xxxxx X.
Xxxxxxxxx of Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
SCHEDULE III
FIRM SHARES
-----------
Xxxxxxx, Sachs & Co.
GS Capital Partners, L.P. 000,000
Xxxxx Xxxxxx Xxxx 0000, 4,047
L.P.
Bridge Street Fund 1994, 4,238
X.X.
Xxxxxxx Xxxxx Xxxxxx
Xxxxxx &
Xxxxx Incorporated
GS Capital Partners, L.P. 000,000
Xxxxx Xxxxxx Xxxx 0000, 4,048
L.P.
Bridge Street Fund 1994, 4,238
X.X.
Xxxxxx Xxxxxxx & Co.
Incorporated
GS Capital Partners, L.P. 000,000
Xxxxx Xxxxxx Xxxx 0000, 4,048
L.P.
Bridge Street Fund 1994, 4,239
L.P. ---------
Total 447,457
==========
19717