EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
XXXXXXXXX & CO., INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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UNDERWRITING AGREEMENT
May ___, 2004
Xxxxxxx, Sachs & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Xxxxxxxxx & Co., Inc., a Delaware corporation ("GREENHILL"), 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
5,000,000 shares (the "FIRM Shares") of Common Stock, par value $0.01 per share
("STOCK"), of Greenhill and, at the election of the Underwriters, and subject to
the terms and conditions stated herein, to issue and sell to the Underwriters up
to 750,000 additional shares (the "OPTIONAL SHARES") of Stock. The Firm Shares
and the Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the "SHARES".
In connection with the offering contemplated by this Agreement,
Xxxxxxxxx & Co. Holdings, LLC, a New York limited liability company
("HOLDINGS"), will merge with and into Greenhill, such that the separate
existence of Holdings will cease and Greenhill will be the surviving
corporation, on the terms and conditions provided in the reorganization
agreement and plan of merger dated as of _____, 2004, among Greenhill, Holdings
and the other signatories thereto (together with all exhibits and schedules
thereto as of the date hereof, the "REORGANIZATION AGREEMENT"), a complete copy
of which is attached as Exhibit A hereto (the "MERGER"). Accordingly, in this
Agreement, references to the "Company" as of any time prior to the consummation
of the Merger shall be deemed to be references to Holdings, and references to
the "Company" as of any time after consummation of the Merger shall be deemed to
be references to Greenhill. In addition, references herein to the
"REORGANIZATION TRANSACTIONS" mean all transactions contemplated by the
Reorganization Agreement, including, without limitation, the execution, delivery
and performance by Greenhill and each of the Managing Directors (as defined
below) of (1) a Non-Competition Agreement substantially in the form set forth in
Exhibit I to the Reorganization Agreement in the case of Managing Directors who
are U.S. Members (including Xxxxxx X. Xxxxxxxxx in his personal capacity), and
substantially in the form of Exhibit J to the Reorganization Agreement in the
case of Managing Directors who are U.K. Partners, (2) a Transfer Rights
Agreement substantially in the form set forth in Exhibit H to the Reorganization
Agreement and (3) a Tax Indemnification Agreement substantially in the form set
forth in Exhibit B to the Reorganization Agreement. Terms defined in the
Reorganization Agreement that are used but not defined herein shall be used
herein as defined therein.
1. (a) Each of Greenhill and Holdings represents and warrants to, and
agrees with, each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-113526)
(the "INITIAL REGISTRATION STATEMENT") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"COMMISSION"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "RULE 462(B) REGISTRATION STATEMENT"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "ACT"), which became effective upon filing, no other document with
respect to the Initial Registration Statement has heretofore been filed
with the Commission; no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "PRELIMINARY PROSPECTUS"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "REGISTRATION
STATEMENT"; and such final prospectus, in the form first filed pursuant
to Rule 424(b) under the Act, is hereinafter called the "PROSPECTUS";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its
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business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, except for such loss or interference as
would not, individually or in the aggregate, have a material adverse
effect on the general affairs, management, financial position, members'
or stockholders' equity (as applicable) or results of operations of the
Company and its consolidated subsidiaries taken as a whole (a "MATERIAL
ADVERSE EFFECT"); and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the membership interests or capital
stock (as applicable) or long-term debt of the Company or any of its
subsidiaries (other than in connection with the transactions
contemplated by the Reorganization Agreement) or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, members' or stockholders' equity (as applicable) or results
of operations of the Company and its consolidated subsidiaries taken as
a whole, otherwise than as set forth or contemplated in the Prospectus;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(vi) Greenhill has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(vii) Holdings has been duly formed and is validly existing as a
limited liability company under the laws of the State of New York, with
power and authority (company and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign limited liability company for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification or is subject to no
material liability or disability by reasons of the failure to be so
qualified in any such jurisdiction;
(viii) The Company has no subsidiaries except those entities set
forth in Exhibit 21.1 of the Registration Statement; upon consummation
of the Reorganization Transactions, each of Xxxxxxxxx & Co., LLC, a New
York limited liability company ("GREENHILL U.S."), Greenhill Fund
Management Co., LLC, a Delaware limited liability company (the
"MANAGER"), GCP, L.P., a Delaware limited partnership (the "ORIGINAL
GENERAL PARTNER"), GCP Managing Partner, L.P., a Delaware limited
partnership (the "MANAGING GENERAL PARTNER"), and Xxxxxxxxx & Co.
International LLP, a limited liability partnership organized in England
and Wales ("GREENHILL INTERNATIONAL" and, together with Greenhill U.S.,
the Manager, the Original General Partner
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and the Managing General Partner, the "SPECIFIED SUBSIDIARIES," and all
references in this Agreement to the subsidiaries of the Company shall
be deemed to include, without limitation, the Specified Subsidiaries)
shall have been duly formed or organized and shall be validly existing
as a limited liability company or partnership (and, to the extent such
concept is applicable, shall be in good standing) under the laws of its
jurisdiction of formation or organization; and each subsidiary of the
Company other than the Specified Subsidiaries has been duly formed,
incorporated or organized and is validly existing as a limited
liability company, corporation or partnership (and, to the extent such
concept is applicable, is in good standing) under the laws of its
jurisdiction of formation, incorporation or organization, except to
such extent as would not, individually or in the aggregate, have a
Material Adverse Effect or interfere materially with the consummation
of the transactions contemplated in this Agreement or the
Reorganization Agreement.
(ix) The Company has an authorized capitalization as set forth in
the Prospectus, all of the issued shares of capital stock or limited
liability company membership interests (as applicable) of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and all the issued shares of capital stock of Greenhill
conform to the description of the Stock contained in the Prospectus;
all of the membership interests or partnership interests of each
Specified Subsidiary have been duly and validly authorized and issued,
are fully paid and (except, in the case of the Original General Partner
and the Managing General Partner, for any liabilities they may incur in
their capacity as general partners under applicable law) non-assessable
and (except for the partnership interests in Greenhill International
held by the U.K. Partners prior to the consummation of the
Reorganization Transactions) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
except to such extent as would not, individually or in the aggregate,
have a Material Adverse Effect, all of the issued shares of capital
stock, membership interests or partnership interests of each subsidiary
of the Company other than the Specified Subsidiaries have been duly and
validly authorized and issued, are fully paid and (except, in the case
of any such subsidiary that is a general partner, for any liability it
may incur in its capacity as a general partner under applicable law)
are non-assessable and, except in the case of Xxxxxxxxx & Co. GmbH, are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; and none of the Company, the
Specified Subsidiaries or other subsidiaries of the Company is subject
to any capital call or similar obligation, directly or indirectly,
pursuant to the partnership agreements relating to the Merchant Banking
Funds (as defined below).
(x) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable and will
conform to the description of the Stock contained in the Prospectus;
(xi) The issue and sale of the Shares to be sold by Greenhill and
the compliance by Greenhill and Holdings with all of the provisions of
this Agreement and the Reorganization Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which
Greenhill or Holdings or any of its subsidiaries is a party or by which
Greenhill or Holdings or any of its subsidiaries is bound or to which
any of the property or assets of Greenhill or Holdings or any of its
subsidiaries is subject, except for such breaches or violations as
would not, individually or in the aggregate, have a Material Adverse
Effect or
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interfere with the consummation of the transactions contemplated by
this Agreement or the Reorganization Agreement, nor will such action
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of Greenhill or the organizational documents
of Holdings, any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over Greenhill or
Holdings or any of its subsidiaries or any of their properties;
(xii) Neither Greenhill nor Holdings nor any of its subsidiaries
is in violation of its Certificate of Incorporation, By-laws or other
organizational documents or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(xiii) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock and under the captions
"Taxation" and Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair in all material respects;
(xiv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect or interfere with
the consummation of the transactions contemplated by this Agreement or
the Reorganization Agreement; to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xv) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT");
(xvi) To its knowledge, neither the Company nor any of its
affiliates does business with the government of, or with any person
located in any country targeted by any of the economic sanctions
programs or similar sanctions-related measures of the United States as
administered by the United States Treasury Department's Office of
Foreign Assets Control; and the proceeds from this offering will not be
used to fund any operations in, finance any investments in or make any
payments to any country, or to make any payments to any person,
targeted by any of the economic sanctions of the United States
administered by the United States Treasury Department's Office of
Foreign Assets Control;
(xvii) No consent, approval, authorization, order, registration,
qualification, permit, license, exemption, filing or notice (each, an
"AUTHORIZATION") of, from, with or to any Federal, state or foreign
government, governmental or regulatory authority, self-regulatory
organization or court or other tribunal (each, an "OFFICIAL BODY") is
required for the issue and sale of the Shares or the consummation of
the transactions contemplated by this Agreement and the Reorganization
Agreement, except (i) the registration of the Shares under the Act and
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
(ii) the listing of the Shares on the New York Stock Exchange, Inc.
(the "EXCHANGE"), (iii) such Authorizations as may be required under
state or foreign securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters and (iv)
such Authorizations
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(including such Authorizations as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") pursuant to NASD
Rule 1017 or otherwise) as have been obtained or made by Greenhill,
Holdings and their respective affiliates (or, solely in the case of
such Authorizations as may be required to be obtained by Greenhill U.S.
under NASD Rule 1017, as shall have been obtained by Greenhill U.S.
prior to the First Time of Delivery ((as defined in Section 5 hereof));
such Authorizations referenced in clause (iv) are in effect (or, solely
in the case of such Authorizations as may be required to be obtained by
Greenhill U.S. under NASD Rule 1017, shall be in effect prior to and as
of the First Time of Delivery), no event has occurred (including the
receipt of any notice from any Official Body) that allows or results
in, or after notice or lapse of time or both would allow or result in,
revocation, suspension, termination or invalidation of any such
Authorization or any other impairment of the rights of the holder or
maker of any such Authorization; and other than as may be set forth in
the Prospectus, such Authorizations referenced in clause (iv) contain
no restrictions that are materially more burdensome than those imposed
on Greenhill, Holdings and their respective affiliates immediately
prior to the date of this Agreement;
(xviii)(A) All corporate, partnership and limited liability
company approvals (including those of stockholders, partners or
members) necessary for Greenhill, Holdings and each of the Specified
Subsidiaries to consummate the transactions contemplated in this
Agreement and the Reorganization Agreement have been obtained and are
in effect; and (B) all such approvals necessary for the respective
subsidiaries of Greenhill and Holdings, other than the Specified
Subsidiaries, to consummate the transactions contemplated in this
Agreement and the Reorganization Agreement have been obtained and are
in effect, except, in the case of this clause (B), for such approvals
the absence of which, individually or in the aggregate, would not have
a Material Adverse Effect or materially interfere with the consummation
of the transactions contemplated in this Agreement or the
Reorganization Agreement;
(xix) All partnership and third party approvals required under any
partnership agreement of Xxxxxxxxx Capital Partners, L.P., Xxxxxxxxx
Capital Partners (Cayman), L.P., Xxxxxxxxx Capital Partners
(Executives), L.P. and Greenhill Capital, L.P. (the "MERCHANT BANKING
FUNDS") binding on Greenhill or any of its affiliates on the date
hereof, all amendments of any such agreement or assignments of rights
thereunder necessary to permit Greenhill, directly or indirectly,
through one or more of its affiliates, to conduct its merchant banking
fund management business as set forth in the Prospectus (including the
right to receive management fees and profit overrides and make
investments) have been obtained or made in conformity with the
provisions of such partnership agreements.
(xx) Each of Holdings, Greenhill and their respective subsidiaries
has obtained or made all Authorizations from, to or with all Official
Bodies as are required to conduct their respective businesses as
described in the Prospectus (or, solely in the case of such
Authorizations as may be required to be obtained by Greenhill U.S.
under NASD Rule 1017, as shall have been obtained by Greenhill U.S.
prior to the First Time of Delivery), except for such Authorizations
the absence of which, individually or in the aggregate, would not
result in a Material Adverse Effect, and no event has occurred
(including the receipt of any notice from any Official Body) that
allows or results in, or after notice or lapse of time or both would
allow or result in, revocation, suspension, termination or invalidation
of any such Authorization or any other impairment of the rights of the
holder or maker of any such Authorization, except for such events as
would not, individually or in the aggregate, result in a Material
Adverse Effect; and each of Holdings, Greenhill and their respective
subsidiaries are members in good standing of
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each Federal, state or foreign exchange, board of trade, clearing house
or association and self-regulatory or similar organization, in each
case as necessary to conduct their respective businesses as described
in the Prospectus, except to such extent as would not, individually or
in the aggregate, have a Material Adverse Effect or interfere
materially with the consummation of the transactions contemplated in
this Agreement or the Reorganization Agreement;
(xxi) It is not necessary in connection with the grant, issuance,
offer, sale and delivery of the securities to be issued by the Company
pursuant to the Reorganization Agreement to register any such
securities under the Act, or to qualify any indenture under the Trust
Indenture Act of 1939, as amended;
(xxii) No holders of securities of or other interests in Greenhill
or Holdings have any preemptive rights to acquire any securities of or
other interests in Greenhill or Holdings or any rights to the
registration of any securities or other interests under the
Registration Statement other than the rights of the Members to receive
Stock as contemplated by the Reorganization Agreement;
(xxiii)The Company has delivered to Xxxxxxx, Xxxxx & Co. on behalf
of the several Underwriters an agreement, substantially to the effect
set forth in Annex III hereof and satisfactory to you in form and
substance, signed by each of the 22 individuals identified as key
employees in the Prospectus under the caption "Management - Key
Employees" (the "MANAGING DIRECTORS") and each Member that is not a
Managing Director; and
(xxiv) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase
price per share of $.............., the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto 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 agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 750,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, provided that the purchase price per Optional
Share shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm Shares but not
payable on the Optional Shares. Any such election to purchase Optional Shares
may be exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement and setting forth
the aggregate number of Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery or, unless you and the Company otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.
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3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. The Company hereby confirms its engagement of Xxxxxxx, Xxxxx & Co.
as, and Xxxxxxx, Sachs & Co. hereby confirms its agreement with the Company to
render services as, a "qualified independent underwriter" within the meaning of
Rule 2720(b)(15) of the NASD with respect to the offering and sale of the
Shares. Xxxxxxx, Xxxxx & Co., in its capacity as qualified independent
underwriter and not otherwise, is referred to herein as the "QIU". As
compensation for the services of the QIU hereunder, the Company agrees to pay
the QIU $1,000 at the First Time of Delivery (as defined below).
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Xxxxxxx, Xxxxx & Co., through the facilities of the Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co.
at least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of DTC or its designated custodian (the "DESIGNATED
OFFICE"). The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York time, on ............., 2004 or such
other time and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on
the date specified by Xxxxxxx, Xxxxx & Co. in the written notice given by
Xxxxxxx, Sachs & Co. of the Underwriters' election to purchase such Optional
Shares, or such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may
agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "FIRST TIME OF DELIVERY", such time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein called the
"SECOND TIME OF DELIVERY", and each such time and date for delivery is herein
called a "TIME OF DELIVERY".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(n) hereof, will be delivered at the offices
of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "CLOSING
LOCATION"), and the Shares will be delivered at the Designated Office, all at
Time of Delivery. A meeting will be held at the Closing Location at 5:00 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 5, "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.
6. Greenhill agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form agreed to by you and the
Company and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or
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Prospectus which shall reasonably be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you
with copies thereof; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may reasonably request
and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) As soon as practicable on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with written and electronic copies of the Prospectus
in New York City in such quantities as you may reasonably request, and,
if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the Act, to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
9
(e) During the period beginning from the date hereof and
continuing to and including the date 200 days after the date of the
Prospectus (such date being the date referred to in the second
paragraph of the agreement attached hereto as Annex III), not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any Stock or other securities of the Company that are
substantially similar to the Stock, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing
on the date of this Agreement), without your prior written consent;
(f) Unless otherwise publicly available in electronic format on
the website of the Company or the Commission, to furnish to its
stockholders as soon as practicable after the end of each fiscal year
an annual report (including a balance sheet and statements of income,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to its
stockholders consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, unless otherwise publicly available in
electronic format on the Commission's website, to furnish to you copies
of all reports or other communications (financial or other) furnished
to stockholders, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial condition
of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the Exchange;
(j) To file with the Commission such information on Form 10-Q or
Form 10-K as may be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act; and
(l) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the Shares (the "LICENSE"); provided, however, that
the License shall be used solely for the purpose described above, is
granted without any fee and may not be assigned or transferred.
10
7. Greenhill and Holdings covenant and agree with one another and with
the several Underwriters that:
(a) the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 6(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with any Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the
Exchange; (v) the filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, securing any required review by
the NASD of the terms of the sale of the Shares; (vi) the cost of preparing
stock certificates; (vii) the cost and charges of any transfer agent or
registrar; and (viii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section; provided, however, that the Company's obligations arising out
of expenses incurred under subsections (iii) and (v) of this Section 7(a) shall
not exceed $25,000. It is understood, however, that, except as provided in this
Section, and Sections 10 and 13 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, stock transfer
taxes on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
Greenhill and Holdings herein are, at and as of such Time of Delivery, true and
correct, the condition that Greenhill and Holdings shall have performed all of
their respective obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time
of Delivery, in form and substance satisfactory to you, with respect to
the matters covered in paragraphs (i), (ii), (vii), (x) and (xii) and
the paragraph immediately following paragraph (xii) of subsection (c)
below as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
11
(c) Xxxxx Xxxx & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion in the form attached as Annex
II(a) hereto, dated such Time of Delivery to the effect that:
(i) Greenhill has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Prospectus;
(ii) Greenhill has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock
of Greenhill (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; and the Shares conform to the
description of the Stock contained in the Prospectus;
(iii) Greenhill has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of the State of New York;
(iv) Holdings, as of the day immediately prior to the
effective time of the Merger, was duly formed or organized and
validly existing as a limited liability company in good standing
under the laws of the State of New York; Greenhill U.S. has been
duly formed or organized and is validly existing as a limited
liability company in good standing under the laws of the State of
New York; and all of the limited liability company membership
interests of Greenhill U.S. have been duly and validly authorized
and issued and, to the best of such counsel's knowledge, are owned
directly or indirectly by Greenhill, in each case free and clear
of all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of matters of fact upon certificates
of officers of the Company or its subsidiaries);
(v) To the best of such counsel's knowledge, all limited
liability company and corporate approvals (including any approvals
of members or stockholders) necessary for Greenhill and Holdings
to consummate the Reorganization Transactions have been obtained
and are in effect; the Merger has become effective under the law
of the State of Delaware and the law of the State of New York; and
the Certificate of Incorporation and By-laws of Greenhill, as
amended, in the respective forms attached as Exhibits 3.1 and 3.2,
respectively, to the Registration Statement have each been filed
with the Secretary of State of the State of Delaware and each has
been duly adopted by Greenhill and is in effect;
(vi) To the best of such counsel's knowledge, based solely on
inquiry of officers of Greenhill and review of documents or other
records of Greenhill provided to such counsel by Greenhill in
response to such inquiry, and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to the best of such counsel's
knowledge based solely on inquiry of officers of Greenhill and
review of documents or other records of Greenhill provided to such
counsel
12
by Greenhill in response to such inquiry, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vii) This Agreement has been duly authorized, executed and
delivered by Greenhill and Holdings;
(viii) The execution and delivery by each of Greenhill and
Holdings of, and the performance by each of Greenhill and Holdings
of its obligations under, this Agreement and the Reorganization
Agreement will not contravene any provision of U.S. federal law,
New York state law or the Delaware General Corporation Law that in
such counsel's experience is normally applicable to general
business entities in relation to transactions of the type
contemplated by this Agreement and the Reorganization Agreement,
or the certificate of incorporation or by-laws of Greenhill or the
limited liability company agreement of Holdings, or any agreement,
indenture, lease or other instrument to which Greenhill, Holdings
or any Specified Subsidiary is a party, or by which any of them or
any or their respective properties is bound, that is specified in
an annex attached to such counsel's opinion (such annex being
attached as Annex II(a)-A hereto), or to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
Greenhill or Holdings or any Specified Subsidiary;
(ix) To the best of such counsel's knowledge, no
Authorization is required to be obtained or made by Greenhill or
any of its subsidiaries from, to or with any Official Body under
U.S. federal law, the law of the State of New York or the General
Corporation Law of Delaware that in such counsel's experience is
normally applicable to general business entities in relation to
transactions of the type contemplated by this Agreement and the
Reorganization Agreement for the issue and sale of the Shares or
the consummation of the transactions contemplated by this
Agreement and the Reorganization Agreement, except for (i) the
registration of the Shares under the Act and the Exchange Act,
(ii) listing of the Shares on the Exchange, (iii) such
Authorizations as may be required from the NASD, (iv) such
Authorizations the absence of which would not have a Material
Adverse Effect or interfere materially with the consummation of
the transactions contemplated by this Agreement and the
Reorganization Agreement, (v) such Authorizations as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters and (vi) the filing of an amendment to Form BD by
Greenhill U.S. with the Commission;
(x) The statements relating to legal matters or documents set
forth in the Prospectus under the captions "Description of Capital
Stock" and "Taxation", insofar as they purport to describe the
provisions of the laws and documents referred to therein, fairly
summarize in all material respects such matters or documents;
(xi) Each of Greenhill and Holdings has duly authorized,
executed and delivered the Reorganization Agreement, and Greenhill
has duly authorized, executed and delivered a Non-Competition
Agreement to each Managing Director; and
(xii) The Company is not, and after giving effect to the
offering and sale of the Shares in accordance with the
Underwriting Agreement and the application of the proceeds thereof
on the date hereof as described in the Prospectus will not be, an
"investment company", as such term is defined in the Investment
Company Act.
Such counsel shall also state that they have not themselves
checked the accuracy, completeness or fairness of, or otherwise
verified, the information furnished with respect
13
to other matters in the Registration Statement or the Prospectus;
they have generally reviewed and discussed with your
representatives and with certain officers and employees of, and
counsel and independent public accountants for, the Company, the
information furnished, whether or not subject to such counsel's
check and verification; on the basis of such consideration, review
and discussion, but without independent check or verification,
except as referred to in subsection (x) of this Section 8(c),
nothing has come to the attention of such counsel that causes them
to believe that (i) the Registration Statement or the Prospectus
or any further amendment or supplement thereto made prior to such
Time of Delivery (except for the financial statements and
schedules and other financial data included therein, as to which
we express no belief), on the date of this Agreement, do not
comply as to form in all material respects with the requirements
of the Act and the applicable rules and regulations of the
Commission thereunder, (ii) the Registration Statement or the
Prospectus or any such amendment or supplement (except for the
financial statements and schedules and other financial data
included therein, as to which we express no belief), on the date
of this Agreement contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or (iii) the Prospectus or any such amendment or supplement
(except for the financial statements and schedules and other
financial data included therein, as to which we express no
belief), on the date of this Agreement9 or on the date hereof,
contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than
the Federal laws of the United States, the laws of the State of
New York and the General Corporation Law of the State of Delaware.
Such counsel may assume the any registration statement filed
pursuant to Rule 462(b) became effective prior to the time that
any sale of the Shares was confirmed by the Underwriters and such
counsel may state that it is outside counsel and that its
knowledge of the matters covered in paragraphs (v), (viii) and
(ix) is necessarily limited. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied
upon certificates of officers of Greenhill and its subsidiaries,
certificates of public officials and other sources.
(d) Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP, special counsel for the
Company, shall have furnished to you their written opinion in the form
attached as Annex II(b) hereto, dated such Time of Delivery, to the
effect that Greenhill U.S. is duly registered as a broker-dealer under
the Exchange Act and the rules and regulations promulgated by the
Commission thereunder and is a member of the NASD; all Authorizations
from, to or with the Commission, the NASD and any other state
securities regulatory authority in the United States that are required
to be obtained or made in order for Greenhill U.S. to conduct its
business as described in the Prospectus under the caption "Business -
Principal Source of Revenue - Financial Advisory" and for the
transactions contemplated by the Reorganization Agreement to be
consummated as so contemplated (including the Authorizations of the
NASD pursuant to NASD Rule 1017 and the filing of an amendment to Form
BD) have been obtained or made and are in effect.
14
(e) Linklaters, English counsel to Greenhill International, shall
have furnished to you their written opinion in the form attached as
Annex II(c) hereto, dated such Time of Delivery, to the effect that:
(i) Greenhill International is a limited liability
partnership duly incorporated and is existing under the laws of
England and Wales;
(ii) Greenhill International is duly authorized by the
Financial Services Authority (the "FSA") to conduct the following
business (all as defined by the FSA): (A) to advise on investments
(excluding Pension Transfers and Pension Opt Outs (as defined by
the FSA)), (B) to agree to carry on a regulated activity, (C) to
arrange deals in investments, and (D) to make arrangements with a
view to transactions in investments; no additional Authorizations
from, to or with the FSA or any other Official Body in the United
Kingdom or Germany are required to be obtained or made in order
for Greenhill International to conduct its investment businesses
as described in the Prospectus and for the transactions
contemplated by the Reorganization Agreement to be consummated as
so contemplated; and
(iii) Each of Xxxxxxxxx & Co., Inc., Xxxxxxxxx & Co. Europe
Limited, Xxxxxxxxx & Co. Holdings, LLC, Greenhill Family Limited
Partnership, Xx. Xxxxx Borrows, Xx. Xxxxx Xxxxxx, Xx. Xxxxx Xxx,
Xx. Xxxxx Xxxxx, Xx. Xxxxx Xxxxxx, Xx. Xxxxx Xxxxx and Mr. Xxxxxxx
Xxxxx have been approved by the FSA to act as controllers (as
defined in Section 422 of the Financial Services and Markets Act
2000) of Greenhill International for the purposes of the
consummation of the transactions contemplated by the
Reorganization Agreement.
(f) Linklaters Oppenhoff & Xxxxxx, German counsel to Greenhill
International, shall have furnished to you their written opinion in the
form attached as Annex II(d) hereto, dated such Time of Delivery, to
the effect that:
(i) Xxxxxxxxx & Co. GmbH is duly incorporated and validly
existing as a limited liability partnership (Gesellschaft mit
beschrankter Haftung) under the laws of Germany;
(ii) To the best of such counsel's knowledge, each of
Greenhill International and Xxxxxxxxx & Co. GmbH has all
Authorizations that are required to be obtained or made under the
law of Germany in order for each to conduct its respective
business in Germany as described in the Prospectus and for the
transactions contemplated by the Reorganization Agreement to be
consummated as so contemplated.
(g) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and also at each Time of
Delivery, Ernst & Young LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I
hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto);
(h)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by
15
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of which information
is given in the Prospectus there shall not have been any change in the
capital stock (or other ownership interests) or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representative so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(i) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities or a material disruption
in commercial banking or securities settlement or clearance services in
the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war or (v) the occurrence of any other calamity
or crisis or any change in financial, political or economic conditions
in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of the Representative
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(j) The Shares at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the Exchange;
(k) The Company has obtained and delivered to Xxxxxxx, Xxxxx & Co.
on behalf of the several Underwriters executed copies of an agreement,
substantially to the effect set forth in Annex III hereof, from each
Member who received Stock in connection with the consummation of the
Reorganization Transactions, executed by the Company and such Member;
(l) The Reorganization Transactions that are contemplated to be
consummated by such Time of Delivery shall have been consummated, in
all material respects, as contemplated in the Reorganization Agreement;
Greenhill and each Managing Director shall have entered into a
Non-Competition Agreement as contemplated in the Reorganization
Agreement; no provisions of the Reorganization Agreement shall have
been amended or waived without the prior written consent of Xxxxxxx,
Sachs & Co., on behalf of the several Underwriters; and no legal or
governmental proceedings shall be pending or threatened against
Holdings, Greenhill, any of the Members or any of their respective
affiliates, seeking to enjoin or otherwise challenge, or that would
materially interfere with, the consummation of the transactions
contemplated by this Agreement and the Reorganization Agreement;
(m) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement; and
(n) Greenhill and Holdings shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of
Greenhill and Holdings, respectively,
16
satisfactory to you as to the accuracy of the representations and
warranties of Greenhill and Holdings, respectively, herein at and as of
such Time of Delivery, as to the performance by Greenhill and Holdings
of all of their respective obligations hereunder to be performed at or
prior to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to
be furnished certificates as to the matters set forth in subsections
(a) and (l) of this Section and subsection (a)(iv) of Section 1.
9. (a) The Company will indemnify and hold harmless Xxxxxxx, Sachs &
Co., in its capacity as QIU, 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 (i) 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, (ii) 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 or (iii) any act or omission to act or any alleged act or
omission to act by Xxxxxxx, Xxxxx & Co. as QIU in connection with any
transaction contemplated by this Agreement or undertaken in preparing for the
purchase, sale and delivery of the Shares, except as to this clause (iii) to the
extent that any such loss, claim, damage or liability results from the gross
negligence or bad faith of Xxxxxxx, Xxxxx & Co. in performing the services as
QIU, 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) Promptly after receipt by the QIU under subsection (a) 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. 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 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
QIU.
(c) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless Xxxxxxx, Sachs & Co., in its
capacity as QIU, under subsection (a) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
the Company 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
17
permitted by applicable law or if the QIU failed to give the notice required
under subsection (b) above, then the Company 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 pursuant to Section 4 hereof. 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 (c) 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 (c). 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
(c) 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.
(d) 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) 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 Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company 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
18
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against 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. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (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.
(d) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company 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 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 (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the
19
cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company 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 and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 10 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 any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 10 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
11. (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 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 that you have
so arranged for the purchase of such Shares, or the Company notifies you that it
has so arranged for the purchase of such Shares, you or the Company 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 as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the
20
aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company 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 as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all of the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 7 hereof and the
indemnity and contribution agreements in Section 10 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company 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 by the
Company or any officer, director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 or
paragraphs (i), (iii), (iv) or (v) of Section 8(i) hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7
and 10 hereof; but, if for any other reason any Shares are not delivered by or
on behalf of the Company as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company shall then be under no further
liability to any Underwriter in respect of the Shares not so delivered except as
provided in Sections 7 and 10 hereof.
14. 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.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 10(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 by you on request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
21
15. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters and the Company and, to the extent provided in
Sections 10 and 12 hereof, the officers and directors of the Company and each
person who controls the Company 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.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. 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.
19. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
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 and the Company.
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, the form of which shall be submitted to the Company for
examination, upon request, but without warranty on your part as to the authority
of the signers thereof.
22
Very truly yours,
XXXXXXXXX & CO., INC.
By: .....................................
Name:
Title:
XXXXXXXXX & CO. HOLDINGS, LLC
By: ....................................,
as Managing Member
By: .....................................
Name:
Title:
Accepted as of the date hereof
........................................
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
23
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ---------
Xxxxxxx, Sachs & Co.................................................
Xxxxxx Brothers Inc.................................................
UBS Securities LLC..................................................
Xxxxx, Xxxxxxxx & Xxxxx, Inc........................................
Wachovia Capital Markets, LLC.......................................
--------------- ---------------
Total...................................................... 5,000,000 750,000
=============== ===============
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