Exhibit 1.1
9,317,275 SHARES
THE YANKEE CANDLE COMPANY, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
September 3, 2003
XXXXXXX, XXXXX & CO.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Forstmann Little & Co. Equity Partnership-V,
L.P. and Forstmann Little & Co. Subordinated Debt and Equity Management Buyout
Partnership-VI, L.P. (the "SELLING STOCKHOLDERS") propose severally to sell an
aggregate of 9,317,275 outstanding shares ("OFFERED SECURITIES") of the Common
Stock, $.01 par value ("SECURITIES") of The Yankee Candle Company, Inc., a
Massachusetts corporation ("COMPANY"). The Selling Stockholders hereby agree
with the Company and with Xxxxxxx, Sachs & Co. (the "UNDERWRITER") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
Underwriter that:
(i) A registration statement (No. 333-108079), including
a form of prospectus, relating to the Offered Securities has been filed
with the Securities and Exchange Commission ("COMMISSION") and has been
declared effective under the Securities Act of 1933, as amended,
("ACT") and is not proposed to be amended. Such registration statement
is hereinafter referred to as the "REGISTRATION STATEMENT," and the
prospectus included in such Registration Statement, as supplemented to
reflect the terms of offering of the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule 424(b)
("RULE 424(b)") under the Act, including all material incorporated by
reference therein, is hereinafter referred to as the "PROSPECTUS." No
document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(ii) On the effective date of the Registration Statement
relating to the Offered Securities, the Registration Statement
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission ("RULES AND REGULATIONS")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus, as of
the time of filing pursuant to Rule 424(b), will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or through the
Closing Date (as defined below) will include, any untrue statement of a
material fact or omits, or through the Closing Date will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. The preceding sentence does not
apply to statements in or omissions from the Prospectus based upon
written information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction 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.
(iv) The Company does not have any significant
subsidiaries within the meaning of Regulation S-X under the Act.
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock."
(vii) The Securities (including the Offered Securities to
be sold by the Selling Stockholders) have been duly authorized and are
validly issued, fully paid and non-assessable.
(viii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the Articles of
Organization 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 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
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except for the
registration under the Act of the Offered Securities and such consents,
approvals, authorizations, registrations or qualifications as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
(ix) 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 subsequent to the date of this Agreement).
(x) Other than as set forth in the Registration Statement
or the Prospectus, there are no legal or governmental proceedings
pending or, to the Company's knowledge, threatened to which the Company
is a party or to which any of the properties of the Company is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described, and there are no statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(xi) 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 Act, complied when so
filed in all material respects with the Act and the applicable Rules
and Regulations of the Commission thereunder
(xii) The Company is not required to be registered as an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
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(xiii) The Company has good and marketable title in fee
simple to all real property owned by it and good and marketable title
to all personal property owned by it which is material to the business
of the Company, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as
do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company; and any real property and buildings held under lease by
the Company are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company, in each case except as described in or
contemplated by the Prospectus.
(xiv) The Company owns or possesses, or can acquire on
reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by it in connection with the business now operated
by it, and the Company has not received any notice of infringement of
or conflict with asserted rights of others with respect to any of the
foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any 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.
(xv) No material labor dispute with the employees of the
Company exists, except as described in or contemplated by the
Prospectus, or, to the knowledge of the Company, is imminent.
(xvi) Except as described in or contemplated by the
Prospectus, the Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which it is engaged.
(xvii) Except as described in the Prospectus, the Company
possesses all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct its business, and the Company has not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a 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.
(xviii) Except as described in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), the Company has not sold, issued or distributed any
Securities during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S
of, the Act, other than shares issued pursuant to employee benefit
plans, qualified stock option plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
(xix) Deloitte & Touche LLP, which has certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(xx) 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,
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licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(xxi) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(xxii) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any Securities or
to require the Company to include any such Securities with the Offered
Securities registered pursuant to the Registration Statement.
(xxiii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or the
Underwriter for a brokerage commission, finder's fee or other like
payment.
(b) Each of the Selling Stockholders severally represents
and warrants to, and agrees with, the Underwriter that:
(i) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(ii) The execution and delivery by such Selling
Stockholder of, and the performance by such Selling Stockholder of its
obligations under this Agreement will not contravene any provision of
applicable law, or the certificate of incorporation or by-laws of such
Selling Stockholder (if such Selling Stockholder is a corporation), or
the partnership agreement or articles of partnership of such Selling
Stockholder (if such Selling Stockholder is a partnership), or any
agreement or other instrument binding upon such Selling Stockholder or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement except for
the registration under the Act of the Offered Securities and such
consents, approvals, authorizations, registrations or qualifications as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Offered Securities.
(iii) Such Selling Stockholder specifically agrees that its
obligations hereunder shall not be terminated by operation of law,
whether by the dissolution of any partnership or corporation, or by the
occurrence of any other event. If any individual Selling Stockholder
should be dissolved, or if any other such event should occur, before
the delivery of the Offered Securities hereunder, certificates
representing the Offered Securities shall be delivered by or on behalf
of such Selling Stockholder in accordance with the terms and conditions
of this Agreement shall be as valid as if such termination, dissolution
or other event had not occurred.
(iv) Immediately prior to the Closing, such Selling
Stockholder will have good and valid title to the Offered Securities to
be sold by such Selling Stockholder hereunder, free and clear of all
liens, encumbrances, equities or claims, except for those arising under
this Agreement; and, upon payment therefor and the delivery to The
Depository Trust Company ("DTC") or its agent of the Offered Securities
registered in the name of Cede & Co. or such other nominee designated
by DTC, both as provided for herein, and the crediting of the Offered
Securities to the Underwriter's accounts with DTC, Cede & Co. or such
other nominee designated by DTC will be a "protected purchaser" of the
Offered Securities (as defined in Section 8-303 of the Uniform
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Commercial Code as in effect in the State of New York (the "UCC")), the
Underwriter will acquire a valid "security entitlement" (within the
meaning of Section 8-501 of the UCC) to the Offered Securities, and no
action based on an "adverse claim" (as defined in Section 8-102 of the
UCC) may be asserted against the Underwriter with respect to such
security entitlement (assuming that the Underwriter is without notice
of any such adverse claim).
(v) To the extent that any statements or omissions made
in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto are made in reliance
upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use therein, such
preliminary prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act and the Rules and
Regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against the Company or the Underwriter for a brokerage commission,
finder's fee or other like payment.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, each Selling Stockholder
agrees, severally and not jointly, to sell to the Underwriter, and the
Underwriter agrees to purchase from each Selling Stockholder, at a purchase
price of $23.25 per share, that number of Offered Securities set forth opposite
the name of such Selling Stockholder in Schedule A hereto.
The Selling Stockholders will deliver the Offered Securities to the
Underwriter for the account of the Underwriter, against payment of the purchase
price in Federal (same day) funds by official bank check or checks or wire
transfer to an account at a bank acceptable to the Underwriter in accordance
with instructions specified by the Selling Stockholders at 10:00 A.M., New York
time, on September 8, 2003, or at such other time not later than seven full
business days thereafter as the Underwriter determines, such time being herein
referred to as the "CLOSING DATE". The certificates for the Offered Securities
so to be delivered will be in definitive form, in such denominations and
registered in such names as the Underwriter requests and will be made available
for checking and packaging at the above office at least 24 hours prior to the
Closing Date.
4. Offering by the Underwriter. It is understood that the
Underwriter proposes to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling
Stockholders. (a) The Company agrees with the Underwriter and the Selling
Stockholders that:
(i) The Company will file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (2) (or, if
applicable and if consented to by the Underwriter, subparagraph (5)) of
Rule 424(b) not later than the earlier of the second business day
following the execution and delivery of this Agreement. The Company
will advise the Underwriter promptly of any such filing pursuant to
Rule 424(b).
(ii) The Company will advise the Underwriter promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplementation
without the Underwriter's consent (not to be unreasonably withheld);
and the Company will also advise the Underwriter promptly of the
effectiveness of any amendment or supplementation of the Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement and
will use its
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best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by the Underwriter or any dealer, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify the
Underwriter of such event and will promptly prepare and file with the
Commission, and furnish to the Underwriter and the dealers (whose names
and addresses the Underwriter will furnish to the Company) to which
Offered Securities may have been sold by the Underwriter and to any
other dealers upon request, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the Underwriter's
consent to, nor the Underwriter's delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 6.
(iv) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the effective time of the
Registration Statement which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
effective time, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Underwriter copies of
the Registration Statement (one of which will be signed or contain
conformed signatures and will include all exhibits), any related
preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents, in
each case in such quantities as the Underwriter reasonably requests.
The Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the execution and delivery of this
Agreement. All other such documents shall be so furnished as soon as
available. The Company will pay the expenses of printing and
distributing to the Underwriter all such documents.
(vi) The Company will endeavor to arrange for the
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Underwriter reasonably requests and continue such
qualifications in effect so long as required for the distribution.
(vii) For a period of 60 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Underwriter. The foregoing sentence shall not
apply to: (A) the Offered Securities to be sold hereunder; (B) the
issuance of Securities upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriter has been advised in writing; and (C) the granting of stock
options and/or restricted stock units pursuant to the Company's
existing employee benefit plans (provided such options do not become
exercisable and the units do not vest during such 60-day period) and to
directors in connection with their initial appointment to the Company's
board of directors.
(viii) Upon the written request of the Underwriter, the
Company shall (i) furnish to the Underwriter a certification, as
contemplated by and in compliance with Treasury regulations Section
1.897-2(h), that as of the Closing Date (or such other date as may be
specified in such
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request), the Offered Securities are not United States real property
interests as defined in Section 897(c)(1) of the Code, (ii) file such
certification with the Internal Revenue Services in the manner and
within the time period specified in Treasury regulations Section
1.897-2(h) and (iii) promptly after such filing, furnish to the
Underwriter that has requested a certificate, as the case may be, proof
of such filing.
(ix) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated the Company
will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel, and the Company's accountants in
connection with the registration and delivery of the Offered Securities
under the Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, any preliminary prospectus supplement, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriter, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Offered Securities to the Underwriter, including any
transfer or other taxes payable thereon, except as provided below,
(iii) the cost of printing or producing any Blue Sky or Legal
Investment memorandum in connection with the offer and sale of the
Offered Securities under state securities laws and all expenses in
connection with the qualification of the Offered Securities for offer
and sale under state securities laws as provided herein, including
filing fees and the reasonable fees and disbursements of counsel for
the Underwriter in connection with such qualification and in connection
with the Blue Sky or Legal Investment memorandum, (iv) the reasonable
fees and disbursements of counsel to the Underwriter incurred in
connection with the review and qualification of the offering of the
Offered Securities by the National Association of Securities Dealers,
Inc., (v) the cost of printing certificates representing the Offered
Securities, (vi) the costs and charges of any transfer agent, registrar
or depositary, (viii) all fees, disbursements and expenses of one
counsel for the Selling Stockholders selected by the Selling
Stockholders (which counsel may be counsel to the Company) and (x) all
other costs and expenses incident to the performance of the Company's
or the Selling Stockholders' obligations hereunder for which provision
is not otherwise made in this Section 5. In connection with clause (ii)
of the preceding sentence, the Underwriter agrees to pay New York State
stock transfer tax, and the Company agrees to reimburse the Underwriter
for associated carrying costs if such tax payment is not rebated on the
day of payment and for any portion of such tax payment not rebated. It
is understood, however, that except as provided in this Section 5,
Section 7 entitled "Indemnification and Contribution", and Section 8,
below, the Underwriter will pay all of its costs and expenses,
including fees and disbursements of its counsel, stock transfer taxes
payable on resale of any of the Offered Securities the Underwriter and
any advertising expenses connected with any offers it may make.
(b) Each Selling Stockholder agrees with the Underwriter
and the Company as follows:
(i) Each Selling Stockholder agrees, for a period of 60
days after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or part, any of the
economic consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of the
Underwriter. The foregoing sentence shall not apply to: (A) the Offered
Securities to be sold hereunder; and (B) transactions relating to
Securities or other securities acquired in open market transactions
after the completion of the offering of the Offered Securities.
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(ii) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, each Selling
Stockholder shall pay or cause to be paid any fees, disbursements and
expenses of counsel for such Selling Stockholder other than as
specified in clause (ix) of paragraph (a) above.
6. Conditions of the Obligations of the Underwriter. The
obligations of the Underwriter to purchase and pay for the Offered Securities on
the Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of this Agreement, the
Underwriter shall have received a letter, dated the date of delivery thereof, of
Deloitte & Touche LLP confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Prospectus;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them to believe
that:
(A) the unaudited financial statements included
in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations or any
material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified
date not more than three business days prior to the date of
such letter, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net current assets or
net assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(C) for the period from the closing date of the
latest income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year, in consolidated
net sales or net operating income in the total or per share
amounts of consolidated income before extraordinary items or
net income;
except in all cases set forth in clauses (B) and (C) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
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(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements included in material incorporated by reference into the
Prospectus shall be deemed included in the Prospectus for purposes of this
subsection.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to the Closing Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Underwriter, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition, financial or otherwise,
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, which, in the judgment of the Underwriter, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of the Underwriter, be likely to prejudice materially the success
of the proposed issue, sale or distribution of the Offered Securities, whether
in the primary market or in respect of dealings in the secondary market; (iv)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or any other relevant state authorities;
(vi) any major disruption of settlements of securities or clearance services in
the United States or (vii) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the
judgment of the Underwriter, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Underwriter shall have received an opinion, dated
the Closing Date, of Xxxx and Xxxx LLP, special counsel for the Company, to the
effect that:
(i) the Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts, has all requisite corporate power and authority to own
its property and to conduct its business as such property and business
is described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction listed on an
exhibit to such opinion, which, to such counsel's knowledge, constitute
the only jurisdictions in the United States in which the Company owns
or leases real property;
(ii) the Securities to be sold by the Selling Stockholders
have been duly authorized and are validly issued, fully paid and
non-assessable;
9
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the execution and delivery by the Company of, and the
consummation by the Company of the transactions contemplated by this
Agreement will not contravene any provision of the Articles of
Organization or By-laws of the Company or applicable law of the
Commonwealth of Massachusetts or the Federal laws of the United States
(other than state securities or Blue Sky laws) 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 in a certificate provided by the Chief Financial Officer of the
Company as material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any judgment, order
or decree which has been identified to such counsel in a certificate
provided by the Chief Financial Officer of the Company 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 Massachusetts or federal governmental body
or agency is required for the consummation by the Company of the
transactions contemplated by this Agreement, except those that have
been made or obtained, and such consents, approvals, authorizations,
registrations or qualifications as may be required by the securities or
Blue Sky laws of the various states or the rules, regulations or
interpretations of the National Association of Securities Dealers in
connection with the offer and sale of the Offered Securities by the
Underwriter;
(v) the authorized capital stock of the Company conforms
in all material respects as to legal matters to the description thereof
contained in the Prospectus under the caption "Description of Capital
Stock," and the statements in the Prospectus under the caption
"Description of Capital Stock," insofar as such statements constitute
summaries of the Company's Articles of Organization or By-laws or
matters of law or legal conclusions, are correct in all material
respects;
(vi) the statements in the Prospectus under the caption
"United States Federal Tax Considerations for Non-United States
Holders" insofar as they purport to summarize matters of the United
States federal income and estate tax law, are correct in all material
respects;
(vii) the statements in the Registration Statement in Item
15 relating to the general effect of the Articles of Organization and
indemnity agreements referred to therein, insofar as such statements
constitute summaries of the Articles of Organization or matters of law
or legal conclusions, are correct in all material respects;
(viii) such counsel does not know of any legal or
governmental proceedings pending to which the Company is a party that
are required by the Securities Act or the rules and regulations
promulgated under the Securities Act to be described in the
Registration Statement or the Prospectus and are not so described; and
(ix) the Company is not required to register as an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
In addition to the matters set forth above, Xxxx and Xxxx LLP, special
counsel to the Company, shall state that in connection with the
preparation of the Registration Statement and the Prospectus they have
participated in conferences with the officers and representatives of
the Company, representatives of the Underwriter, counsel for the
Underwriter and independent accountants of the Company, at which
conferences such counsel made inquiries of such persons and others and
discussed the contents of the Registration Statement and the
Prospectus. Such counsel shall further state that while the limitations
inherent in the independent verification of factual matters and the
character of determinations involved in the registration process are
such that they are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
subject to the foregoing and based on such participation, inquiries and
discussions: (a) the Registration Statement and
10
Prospectus, as of their respective effective or issue dates, appear on
their face to be responsive as to form in all material respects with
the Act and the applicable Rules and Regulations of the Commission
thereunder (provided that such counsel need not express any view or
belief as to the financial statements, notes and schedules thereto, and
other financial and accounting data included in or omitted from or
incorporated by reference in the Registration Statement or Prospectus)
and (b) no facts have come to the attention of such counsel that cause
them to believe that (x) the Registration Statement, as of the date it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus as of its date contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (y) 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
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading (provided, in each case, that such counsel need
not express a view or belief with respect to financial statements,
notes and schedules thereto, and other financial and accounting data
included in or omitted from or incorporated by reference in the
Registration Statement and Prospectus).
(e) The Underwriter shall have received an opinion, dated
the Closing Date, of Xxxxx X. Xxxxxx, Xx., Vice President and General Counsel of
the Company, to the effect that:
(i) the Company has good and marketable title in fee
simple to all real property owned by it and good and marketable title
to all personal property owned by it which is material to the business
of the Company, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as
do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company; and any real property and buildings held under lease by
the Company are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company, in each case except as described in or
contemplated by the Prospectus;
(ii) after due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which any of
the properties of the Company is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described; and
(iii) the documents incorporated by reference in the
Registration Statement and Prospectus (except for financial statements
and schedules and other financial and statistical data included therein
as to which such counsel need not express any opinion), when they
became effective or were filed with the Commission (or, with respect to
the Company's Annual Report on Form 10-K for the fiscal year ended
December 28, 2002 (the "ANNUAL REPORT"), when the Company's Forms
10-K/A No. 1 and No. 2 amending the Annual Report were filed), as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Securities Exchange Act of 1934, as
amended, as applicable, and the applicable Rules and Regulations of the
Commission thereunder.
(f) The Underwriter shall have received an opinion, dated
the Closing Date, of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special counsel
to each of the Selling Stockholders, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Stockholders;
(ii) the execution and delivery by each Selling
Stockholder of, and the performance by such Selling Stockholder of its
obligations under, this Agreement will not contravene any
11
provision of applicable law of the State of New York, the Delaware
Revised Uniform Limited Partnership Act, as amended, and the Federal
laws of the United States (other than state securities or Blue Sky
laws) or the partnership agreement of such Selling Stockholder, or, to
the best of such counsel's knowledge, any agreement or other instrument
identified to such counsel in a certificate provided by a general
partner of such Selling Stockholder, binding upon such Selling
Stockholder or, to the best of such counsel's knowledge, any judgment,
order or decree identified to such counsel in a certificate provided by
a general partner of such Selling Stockholder, of any governmental
body, agency or court having jurisdiction over such Selling
Stockholder, and no consent, approval, authorization or order of, or
qualification with, any New York, Delaware or federal governmental body
or agency is required for the performance by such Selling Stockholder
of its obligations under this Agreement, except those that have been
made or obtained, and such consents, approvals, authorizations,
registrations or qualifications as may be required by the securities or
Blue Sky laws of the various states or the rules, regulations or
interpretations of the National Association of Securities Dealers in
connection with offer and sale of the Offered Securities; and
(iii) upon payment for the Offered Securities and the
delivery to DTC of such Offered Securities registered in the name of
Cede & Co. or such other nominee designated by DTC, both as provided
for herein, and the crediting of such Offered Securities to the
Underwriter's account with DTC, the Underwriter will acquire a valid
security entitlement with respect to the Offered Securities, and no
action based on an adverse claim may be asserted against the
Underwriter with respect to such security entitlement (assuming that
the Underwriter is without notice of any such adverse claim).
(g) The Underwriter shall have received from Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the
Closing Date, with respect to the Registration Statement, the Prospectus and
other related matters as the Underwriter may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such documents
as they reasonably request for the purpose of enabling them to pass upon such
matters.
(h) With respect to Section 6(d)(xi) above, Xxxx and Xxxx
LLP 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, but are without independent check or verification, except as specified.
(i) The Underwriter shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date; no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and, subsequent to the date of
the most recent financial statements in the Prospectus, there has been no
material adverse change, nor any development or event involving a prospective
material adverse change, in the condition, financial or otherwise, earnings,
business, or operations of the Company and its subsidiaries, taken as a whole,
except as set forth in the Prospectus or as described in such certificate.
(j) The Underwriter shall have received a certificate,
dated the Closing Date, and signed by each Selling Stockholder that the
representations and warranties of such Selling Stockholder contained in this
Agreement are true and correct as of the Closing Date and that such Selling
Stockholder has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date.
(k) The Underwriter shall have received a letter, dated
the Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (a) of this Section, except that the
12
specified date referred to in such subsection will be a date not more than three
days prior to the Closing Date for the purposes of this subsection.
(l) To avoid a 28% backup withholding tax, each Selling
Stockholder agrees to deliver to the Underwriter prior to closing a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
(m) The "lock-up" agreements, each substantially in the
form provided by the Underwriter, by executive officers of the Company who are
not selling Securities in the offering relating to sales and certain other
dispositions of Securities or certain other securities, delivered to the
Underwriter on or before the date hereof, shall be in full force and effect on
the Closing Date.
The Selling Stockholders and the Company will furnish the Underwriter with such
conformed copies of such opinions, certificates, letters and documents referred
to herein as the Underwriter reasonably request. the Underwriter may in its sole
discretion waive compliance with any conditions to the obligations of the
Underwriter hereunder.
7. Indemnification and Contribution
(a) The Company will indemnify and hold harmless the
Underwriter, its partners, directors and officers and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which the
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 any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, 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 Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will 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 in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by the Underwriter consists of
the information described as such in subsection (c) below.
(b) Each of the Selling Stockholders, severally in
proportion to the number of Offered Securities to be sold by such Selling
Stockholder hereunder, will indemnify and hold harmless the Underwriter, its
partners, directors and officers and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which the 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 any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, 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 Underwriter for any legal or other expenses
reasonably incurred by the Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Selling Stockholders will 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
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Company by the
Underwriter specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriter consists of the
information described as such in subsection (c) below, and provided further,
however, that with respect to any amount due an indemnified person under this
paragraph (b), each Selling Stockholder shall be liable
13
only to the extent of the net proceeds received by such Selling Stockholder from
the sale of such Selling Stockholder's Offered Securities.
(c) The Underwriter will indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act, 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 any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
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 reliance upon and in
conformity with written information furnished to the Company by the Underwriter
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and each Selling Stockholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by the Underwriter consists of the following
information in the Prospectus: the sixth and seventh paragraphs under the
caption "Underwriting."
(d) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party under subsection (a), (b) or (c) above, notify the indemnifying party of
the commencement thereof; but the failure to notify the indemnifying party shall
not relieve it from any liability that it may have under subsection (a), (b) or
(c) above except to the extent that it has been materially prejudiced (through
the forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with 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 will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action 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 an
indemnified party.
(e) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) 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
Underwriter on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Stockholders on the one hand and the Underwriter on the other in
connection with the statements or omissions which 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
Stockholders on the one hand and the Underwriter 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 Selling Stockholders bear to the
14
total underwriting discounts and commissions received by the Underwriter. 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, the Selling Stockholders or the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of 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 action or claim which is the subject of this
subsection (e). Notwithstanding the provisions of this subsection (e), shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
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 Underwriter's 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 7 shall be in addition to any liability which
the Company and the Selling Stockholders may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 7 shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the Underwriter set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If for any reason the purchase of the Offered
Securities by the Underwriter is not consummated, the Company and the Selling
Stockholders shall remain responsible for the expenses to be paid or reimbursed
by them pursuant to Section 5 and the respective obligations of the Company, the
Selling Stockholders, and the Underwriter pursuant to Section 7 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Offered Securities by the
Underwriter is not consummated for any reason other than a default by the
Underwriter or the occurrence of any event specified in clause (iii), (iv), (v),
(vi) or (vii) of Section 6(c), the Company and the Selling Stockholders will
reimburse the Underwriter for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by the Underwriter in connection
with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and,
if sent to the Underwriter, will be mailed, delivered or telegraphed and
confirmed to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Registration Department, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 00 Xxxxxx Xxxxxx Xxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxx, Xx., or, if sent to
the Selling Stockholders or any of them, will be mailed, delivered or
telegraphed and confirmed to such Selling Stockholder at the address set forth
for such Selling Stockholder on Schedule A hereto.
10. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective personal
representatives and successors and the officers and directors and
15
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.
11. Counterparts. This Agreement may be executed 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 Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
16
If the foregoing is in accordance with the Underwriter's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the Underwriter in accordance with its terms.
Very truly yours,
FORSTMANN LITTLE & CO., EQUITY
PARTNERSHIP-V, L.P.
By
-----------------------------------
FORSTMANN LITTLE & CO.,
SUBORDINATED DEBT AND
EQUITY MANAGEMENT BUYOUT PARTNERSHIP-VI,
L.P.
By
-----------------------------------
THE YANKEE CANDLE COMPANY, INC.
By
-----------------------------------
Senior Vice President and Chief
Financial Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXX, XXXXX & CO.
By
---------------------------------
17
SCHEDULE A
SELLING STOCKHOLDERS
NUMBER OF
OFFERED SECURITIES
SELLING STOCKHOLDERS TO BE SOLD
-------------------- ------------------
Forstmann Little & Co., Equity
Partnership-V, L.P. 5,617,769
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Forstmann Little & Co., Subordinated Debt
and Equity Management Buyout
Partnership-VI, L.P. 3,699,506
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
---------
Total....................... 9,317,275
=========
