Xxxx Xxxxx, Inc.
9,000,000 Shares
Common Stock
($0.10 par value)
Underwriting Agreement
New York, New York
March 9, 2006
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
AMAD Holdings Inc. (the "Selling Stockholder"), proposes to sell to
Citigroup Global Markets Inc. (the "Underwriter"), (i) 5,393,545 shares of
Common Stock, $0.10 par value ("Common Stock") and (ii) 3.606455 shares of
Series A Convertible Preferred Stock, $10.00 par value, convertible into
3,606,455 shares of Common Stock, of Xxxx Xxxxx, Inc., a corporation organized
under the laws of Maryland (the "Company") (said shares to be sold by the
Selling Stockholder being hereinafter called the "Underwritten Securities"). The
Selling Stockholder also propose to grant to the Underwriter an option to
purchase up to 1,350,000 additional shares of Common Stock issuable upon
conversion of 1.35 shares of Series A Non-Voting Convertible Preferred Stock
(the "Preferred Stock") to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities").
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Prospectus, as the case may be;
and any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of the Basic Prospectus, any
Preliminary Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
The use of the neuter in this Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used herein are defined in Section
16 hereof.
1. Representations and Warranties.
(i) The Company represents and warrants to, and agrees with, the
Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405, on Form S-3 (file number
333-132074), including a related basic prospectus, for registration under the
Act of shares of Common Stock and the offering thereof from time to time in
accordance with Rule 415. Such Registration Statement, including any amendments
thereto filed prior to the Execution Time, became effective upon filing. The
Company may have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more Preliminary
Prospectuses, each of which has previously been furnished to you. The Company
will file with the Commission a final prospectus supplement relating to the
Securities in accordance with Rule 424(b). As filed, such final prospectus
supplement shall contain all information required by the Act and the rules
thereunder, and, except to the extent the Underwriter shall agree in writing to
a modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did, and when the
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date
(as defined herein) and on any date on which Option Securities are purchased, if
such date is not the Closing Date (a "Settlement Date"), the Prospectus (and any
supplements thereto) will, comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective Date and at
the Execution Time, the Registration Statement did not 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 in order to make the statements therein not
misleading; and on the date of any filing pursuant to Rule 424(b), and on the
Closing Date and any Settlement Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material fact or
omit 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;
provided, however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter or the
Selling Stockholder specifically for inclusion in the Registration Statement or
the Prospectus (or any supplement thereto), it being understood and agreed that
the only such information furnished (i) by the Underwriter consists of the
information described as such in Section 8(c) hereof and (ii) by the Selling
Stockholder consists of the information described as such in Section 8(b)
hereof.
(c) The Disclosure Package and the price to the public, the number of
Underwritten Securities and the number of Option Securities to be included on
the cover page of the Prospectus, when taken together as a whole, do not contain
any 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, not misleading. The preceding sentence
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does not apply to statements in or omissions from the Disclosure Package based
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 Section 8 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c))
made any offer relating to the Securities in reliance on the exemption in Rule
163, and (iv) at the Execution Time (with such date being used as the
determination date for purposes of this clause (iv)), the Company was or is (as
the case may be) a "well-known seasoned issuer" as defined in Rule 405.
(e) (i) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of
the Execution Time (with such date being used as the determination date for
purposes of this clause (ii)), the Company was not and is not an Ineligible
Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus, if any, does not include any
information that conflicts with the information contained in the Registration
Statement, including any document incorporated therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or modified.
The foregoing sentence does not apply to statements in or omissions from the
Disclosure Package based 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 Section 8 hereof.
(g) The Company has been duly incorporated or organized and is validly
existing in good standing under the laws of the State of Maryland with full
power and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Disclosure Package and
the Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires such
qualification, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not result in
a Material Adverse Effect (as defined below).
(h) Except as would not result in a Material Adverse Effect, each of
the Company's subsidiaries: (i) has been duly incorporated or organized, (ii) is
validly existing in good standing under the laws of the jurisdiction in which it
is chartered or organized with all requisite power and authority to own or
lease, as the case may be, and to operate its properties and conduct its
business as described in the Disclosure Package and the Prospectus, and (iii) is
duly qualified to do business as a foreign corporation or organization and is in
good standing
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under the laws of each jurisdiction which requires such qualification, whether
by reason of the ownership or leasing of property or the conduct of business.
(i) Except as would not result in a Material Adverse Effect: (i) all
the outstanding shares of capital stock of each subsidiary have been duly and
validly authorized and issued and are fully paid and nonassessable, and, (ii)
except as otherwise set forth in the Disclosure Package and the Prospectus, all
outstanding shares of capital stock of the subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear of any
perfected security interest or any other security interests, claims, liens or
encumbrances.
(j) Each of the Company's (a) Form 10-K, for the fiscal year ended
Xxxxx 00, 0000, (x) Form 10-Qs for the periods ended June 30, 2005, September
30, 2005 and December 31, 2005, (c) Information Statement for the 2005 annual
meeting of shareholders pursuant to Section 14(c) of the Exchange Act, and (d)
current reports on Form 8-K filed since March 31, 2005 and incorporated by
reference in the Registration Statement and the Prospectus (collectively, the
documents listed in (a), (b), (c) and (d) above are referred to as the "1934 Act
Reports") filed with the Commission pursuant to the Exchange Act at the time
they were or hereafter are filed with the Commission complied or will comply in
all material respects with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder, and, when read together with the
other information in the Prospectus, at the time the Registration Statement
became effective and at the Closing Time, did not and will not include 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.
(k) The Company's authorized equity capitalization is as set forth in
the Disclosure Package and the Prospectus. The capital stock of the Company
conforms in all material respects to the description thereof contained in the
Disclosure Package and the Prospectus. The outstanding shares of Common Stock
have been duly and validly authorized and issued and are fully paid and
nonassessable, except that the shares of Common Stock to be issued on the
Closing Date upon conversion of the Preferred Stock will, upon issuance, be duly
and validly authorized and issued, and will be fully paid and nonassessable upon
the Closing Date. The Securities being sold hereunder by the Selling Stockholder
have been duly and validly authorized, and are fully paid and nonassessable,
except that the shares of Common Stock to be issued on the Closing Date upon
conversion of the Preferred Stock will, upon issuance, be duly and validly
authorized and issued, and will be fully paid and nonassessable upon the Closing
Date. The Securities being sold hereunder by the Selling Stockholder are duly
listed, and admitted and authorized for trading, on the New York Stock Exchange,
except that the Common Stock to be issued on the Closing Date upon conversion of
the Preferred Stock will, upon issuance, be duly listed, and admitted and
authorized for trading, on the New York Stock Exchange on the Closing Date. The
certificates for the Securities are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities.
(l) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or the Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as required.
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(m) This Agreement has been duly authorized, executed and delivered by
the Company.
(n) The Company is not and, after giving effect to the offering and
sale of the Securities by the Selling Stockholder, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(o) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required by the Company in connection
with the transactions contemplated herein, except such as have been obtained by
the Company under the Act and such as may be required by the Company under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriter in the manner contemplated
herein and in the Disclosure Package and the Prospectus.
(p) Neither the sale of the Securities nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the terms
hereof by the Company will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets of its
Company or any of its subsidiaries pursuant to, (i) the charter or by-laws of
the Company or any of its subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which their
property is subject, or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its subsidiaries
or any of its or their properties; except, in the case of clause (ii) or (iii),
for any such conflict, breach, violation or imposition that would not have a
Material Adverse Effect.
(q) Except for those rights contained in the Registration and Investor
Rights Agreement, by and between Citigroup Inc. and the Company, dated as of
December 1, 2005, and the Registration Rights Agreement, among the Company,
Permal Group SCA, Worms UK Ltd. and the other shareholders identified therein,
dated November 3, 2005 (together, the "Registration Rights Agreements"), and
except for those rights of employees of the Company with respect to
registrations on Form S-8 as of the date of this Agreement, no holders of
securities of the Company have rights to the registration of any such securities
that have not been so registered.
(r) The consolidated historical financial statements and schedules of
the Company incorporated by reference in the Disclosure Package, the Prospectus
and the Registration Statement present fairly the financial condition, results
of operations and cash flows of the Company and its consolidated subsidiaries as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted therein). The
selected consolidated financial data set forth under the caption "Selected
Financial Data" incorporated by reference in the Disclosure Package, the
Prospectus and the Registration Statement fairly present, on the basis stated in
the Disclosure Package, the Prospectus and the Registration Statement, the
5
information included therein. The pro forma financial statements incorporated by
reference into the Disclosure Package, the Prospectus and the Registration
Statement include assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and events
described therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma adjustments reflect the proper application
of those adjustments to the historical financial statement amounts in the pro
forma financial statements included in the Prospectus and the Registration
Statement. The pro forma financial statements included in the Prospectus and the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the Act and the pro
forma adjustments have been properly applied to the historical amounts in the
compilation of those statements.
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their respective properties is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this Agreement
or the consummation of any of the transactions contemplated hereby or (ii) could
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (a "Material Adverse Effect"),
except as set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(t) The Company and each of its subsidiaries own or lease all such
properties as are necessary to the conduct of its operations as presently
conducted.
(u) Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) except as set forth
in the Disclosure Package and the Prospectus, any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties;
except, in the case of clause (i) (with respect to subsidiaries only) (ii) or
(iii), for any such violation or default that would not have a Material Adverse
Effect.
(v) PricewaterhouseCoopers, LLP, who has certified certain financial
statements of the Company and the Permal Group, and delivered its report with
respect to the audited consolidated financial statements and schedules
incorporated by reference in the Registration Statement, the Disclosure Package
and the Prospectus, is an independent registered public accounting firm with
respect to each of the Company and the Permal Group, within the meaning of the
Act and the applicable published rules and regulations thereunder.
(w) Each of the Company and the subsidiaries listed on Schedule II
hereto (the "Significant Subsidiaries") has filed all foreign, federal, state
and local tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not have a
Material Adverse Effect) and has paid all taxes required to be paid by
6
it and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(x) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the Company, is
threatened or imminent, that could reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(y) The Company and its subsidiaries, as an entity, are 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 they
are engaged; and there are no claims by the Company or any of its subsidiaries
under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause that could
reasonably be expected to have a Material Adverse Effect; neither the Company
nor any such subsidiary has been refused any insurance coverage sought or
applied for and the Company and each such subsidiary believes that it will be
able to renew its existing insurance coverage as and when such coverage expires,
should it elect to do so, or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have a
Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(z) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the
Disclosure Package and the Prospectus and except as would not reasonably be
expected to have a Material Adverse Effect.
(aa) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, except for such licenses, certificates, permits and other
authorizations as to which the failure to so own, hold or possess would not have
a Material Adverse Effect, and neither the Company nor any such subsidiary has
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 reasonably
be expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(bb) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to
7
permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company and its subsidiaries' internal controls
over financial reporting are effective and the Company and its subsidiaries are
not aware of any material weakness in their internal control over financial
reporting.
(cc) The Company and its subsidiaries maintain "disclosure controls and
procedures" (as such term is defined in Rule 13a-15(e) under the Exchange Act).
(dd) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities in violation of
the Exchange Act or otherwise.
(ee) 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 and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses, (iii) have not
received notice of any actual or potential liability under any environmental
law, except where such non-compliance with Environmental Laws, failure to
receive required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, result in a Material Adverse Effect. Except as
set forth in the Disclosure Package and the Prospectus, neither the Company nor
any of the subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended.
(ff) The minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder ("ERISA"), has been satisfied by each
"pension plan" (as defined in Section 3(2) of ERISA) which has been established
or maintained by the Company and/or one or more of its subsidiaries, and the
trust forming part of each such plan which is intended to be qualified under
Section 401 of the Code is so qualified; each of the Company and its
subsidiaries has fulfilled its obligations, if any, under Section 515 of ERISA;
neither the Company nor any of its subsidiaries maintains or is required to
contribute to a "welfare plan" (as defined in Section 3(1) of ERISA) which
provides retiree or other post-employment welfare benefits or insurance coverage
(other than "continuation coverage" (as defined in Section 602 of ERISA)); each
pension plan and welfare plan established or maintained by the Company and/or
one or more of its subsidiaries is in compliance in all material respects with
the currently applicable provisions of ERISA; and neither the Company nor any of
its subsidiaries has incurred or could reasonably be expected to incur any
withdrawal liability under Section 4201 of ERISA, any liability under Section
4062, 4063, or 4064 of ERISA, or any other liability under Title IV of ERISA.
(gg) Except as would not result in a Material Adverse Effect, there is
and has been no failure on the part of the Company and any of the Company's
directors or officers, in
8
their capacities as such, to comply with any provision of the Sarbanes Oxley Act
of 2002 and the rules and regulations promulgated in connection therewith (the
"Sarbanes Oxley Act"), including Section 402 related to loans and Sections 302
and 906 related to certifications.
(hh) The Company and its subsidiaries own, possess, license or have
other rights to use all patents, patent applications, trade and service marks,
trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of their
business, taken as a whole, as now conducted; and neither the Company nor any of
its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property, which
infringement or conflict, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(ii) Neither the Company nor any of its subsidiaries have failed to
file with applicable regulatory authorities any statement, report, information
or form required by any applicable law, regulation or order, except where the
failure to file or to be so in compliance would not, individually and in the
aggregate, have a Material Adverse Effect. No deficiencies have been asserted by
any regulatory commission, agency or authority with respect to any such filings
or submissions, except for any such failures to be in compliance or deficiencies
which would not, individually and in the aggregate, have a Material Adverse
Effect.
(jj) The Company is subject to the reporting requirements of Section 13
or Section 15(d) of the 1934 Act.
(kk) The Company has not taken, and will not take, directly or
indirectly, any action prohibited by Regulation M under the 1934 Act in
connection with the offering of the Securities.
(ll) The Company is not required to be registered, licensed or
qualified as an investment adviser or a broker-dealer or as a commodity trading
advisor, a commodity pool operator or a future commission merchant or any or all
of the foregoing, as applicable; each of the Company's subsidiaries that is
required to be registered, licensed or qualified as an investment adviser or a
broker-dealer or as a commodity trading advisor, a commodity pool operator or a
futures commission merchant or any or all of the foregoing, as applicable, is so
registered, licensed or qualified in each jurisdiction where the conduct of its
business requires such registration, license or qualification (and such
registration, license or qualification is in full force and effect), and is in
compliance with all applicable laws requiring any such registration, licensing
or qualification, except for any failures to be so registered, licensed or
qualified or to be in such compliance that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(mm) The Company is not a party as an investment advisor or distributor
to any investment advisory agreement or distribution agreement; each of the
investment advisory agreements and distribution agreements to which any of the
Company's subsidiaries is a party is a valid and legally binding obligation of
such subsidiary which is a party thereto and complies with the applicable
provisions of the Investment Advisers Act of 1940, as amended (the
9
"Advisers Act"), except for any failures to be so valid and legally binding and
in compliance that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; and none of the Company's
subsidiaries is in breach or violation of or in default under any such agreement
which breach, violation, default or invalidity, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
(nn) The Company does not sponsor any funds; each fund sponsored by any
of the Company's subsidiaries (a "Fund" or the "Funds") and which is required to
be registered with the Commission as an investment company under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), is duly
registered with the Commission as an investment company under the Investment
Company Act and the securities of each fund have been issued and sold in
accordance with applicable law, except for any failures to be so registered or
otherwise comply with applicable law that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
(oo) The subsidiaries listed on Annex A attached hereto are the only
significant subsidiaries of the Company as defined by Rule 1-02 of Regulation
S-X.
Any certificate signed by any officer of the Company and delivered to
the Underwriter or counsel for the Underwriter in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to the Underwriter.
(ii) The Selling Stockholder, represents and warrants to, and agrees
with, the Underwriter that:
(a) The Selling Stockholder is the record and beneficial owner of the
Securities to be sold by it hereunder free and clear of all liens, encumbrances,
equities and claims and has duly endorsed such Securities in blank, and,
assuming that the Underwriter acquires its interest in the Securities it has
purchased from the Selling Stockholder without notice of any adverse claim
(within the meaning of Section 8-105 of the New York Uniform Commercial Code as
in effect in the State of New York from time to time ("UCC")), the Underwriter
that has purchased such Securities delivered on the Closing Date to The
Depository Trust Company or other securities intermediary by making payment
therefor as provided herein and that has had such Securities credited to the
securities account or accounts of the Underwriter maintained with The Depository
Trust Company or such other securities intermediary, will have acquired a
security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to
such Securities purchased by the Underwriter, and no action based on an adverse
claim (within the meaning of Section 8-105 of the UCC) may be asserted against
the Underwriter with respect to such Securities.
(b) The Selling Stockholder has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities; provided, however, that the Selling Stockholder
makes no representations or warranties in this paragraph (b) as to any action by
the Company or the Underwriter.
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(c) To the knowledge of the Selling Stockholder, no consent, approval,
authorization or order of any court or governmental agency or body is required
for consummation by the Selling Stockholder of the transactions contemplated
herein, except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriter and such other
approvals as have been obtained.
(d) To the knowledge of the Selling Stockholder, neither the sale of
the Securities being sold by the Selling Stockholder nor the consummation of any
other of the transactions herein contemplated by the Selling Stockholder or the
fulfillment of the terms hereof by the Selling Stockholder will conflict with,
result in a breach or violation of, or constitute a default under any law or the
charter or by-laws or other organizational documents, in each case if
applicable, of the Selling Stockholder or the terms of any indenture or other
agreement or instrument to which the Selling Stockholder or any of its
subsidiaries (if applicable) is a party or bound, or any judgment, order or
decree applicable to the Selling Stockholder or any of its subsidiaries (if
applicable) of any court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Selling Stockholder or any of
its subsidiaries (if applicable).
(e) On the Effective Date and at the Execution Time, the Registration
Statement did not 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 in
order to make the statements therein not misleading; and on the date of any
filing pursuant to Rule 424(b), and on the Closing Date and any Settlement Date,
the Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit 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; provided, however, that the Selling
Stockholder makes the foregoing representations and warranties solely in respect
of any statements in or omissions from the Registration Statement or the
Prospectus or any supplements thereto made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of the
Selling Stockholder specifically for use in connection with the preparation
thereof, it being understood and agreed that the only such information furnished
by the Selling Stockholder consists of the information described as such in
Section 8(b) hereof.
(f) the Selling Stockholder does not possess any material non-public
information concerning the Company or any of its subsidiaries which is not set
forth in the Disclosure Package.
(g) This Agreement has been duly authorized, executed and delivered by
the Selling Stockholder.
Any certificate signed by or on behalf of the Selling Stockholder and
delivered to the Underwriter or counsel for the Underwriter in connection with
the offering of the Securities shall be deemed a representation and warranty by
the Selling Stockholder, as to matters covered thereby, to the Underwriter.
2. Purchase and Sale.
11
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder agrees
to sell to the Underwriter, and the Underwriter agrees to purchase from the
Selling Stockholder, at a purchase price of $125.00 per share, the Underwritten
Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder hereby
grants an option to the Underwriter to purchase, up to 1,350,000 Option
Securities at the same purchase price per share as the Underwriter shall pay for
the Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the Underwriter.
Said option may be exercised in whole or in part at any time on or before the
30th day after the date of the Prospectus (March 9, 2006) upon written or
telegraphic notice by the Underwriter to the Company and the Selling Stockholder
setting forth the number of Option Securities as to which the Underwriter is
exercising the option and the Settlement Date.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the second Business Day prior to
the Closing Date) shall be made at the offices of Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP, counsel for the Underwriter, at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Skadden Offices") at 10:00 AM, New York City time, on March 15,
2006, or at such time on such later date not more than three Business Days after
the foregoing date as the Underwriter shall designate, which date and time may
be postponed by agreement among the Underwriter, the Company and the Selling
Stockholder (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Underwriter against payment by the Underwriter of the aggregate purchase
price of the Securities being sold by the Selling Stockholder to or upon the
order of the Selling Stockholder by wire transfer payable in same-day funds to
the account specified by the Selling Stockholder. Delivery of the Securities
shall be made through the facilities of The Depository Trust Company unless the
Underwriter shall otherwise instruct.
The Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the Underwriter of the Securities to be
purchased by it from the Selling Stockholder, and the Underwriter will pay any
additional stock transfer taxes involved in further transfers.
If the option provided for in Section 2(b) hereof is exercised after
the second Business Day prior to the Closing Date, the Selling Stockholder will
deliver the Option Securities (at the expense of the Company) to the Underwriter
at Skadden's Offices at 10:00 AM, on the date specified by the Underwriter
(which shall be within three Business Days after exercise of said option),
against payment by the Underwriter of the purchase price thereof to or upon the
order of the Selling Stockholder hereto by wire transfer payable in same-day
funds to the account specified by the Selling Stockholder. If settlement for the
Option Securities occurs after the Closing Date, the Company and such Selling
Stockholders will deliver to the Underwriter on the Settlement Date, and the
obligation of the Underwriter to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
12
4. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Securities for sale to the public as set forth in the
Prospectus.
5. Agreements. (i) The Company agrees with the Underwriter that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or supplement
(including the Prospectus or any Preliminary Prospectus) to the Basic Prospectus
unless the Company has furnished the Underwriter a copy for its review prior to
filing and will not file any such proposed amendment or supplement to which the
Underwriter reasonably objects. The Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed in a form reasonably approved
by the Underwriter with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Underwriter of such timely filing. The Company will promptly
advise the Underwriter (1) when the Prospectus, and any supplement thereto,
shall have been filed with the Commission pursuant to Rule 424(b), (2) when,
prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (3) of any
request by the Commission or its staff for any amendment of the Registration
Statement, or for any supplement to the Prospectus or for any additional
information, (4) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any notice objecting to its
use or the institution or threatening of any proceeding for that purpose and (5)
of the receipt by the Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or prevention and, upon such issuance,
occurrence or prevention, to obtain as soon as possible the withdrawal of such
stop order or relief from such occurrence or prevention, including, if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as practicable.
(b) Prior to the termination of the offering of the Securities, if
there occurs an event or development as a result of which the Disclosure Package
would include an untrue statement of a material fact or would omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances then prevailing, not misleading, the Company will (i) notify
promptly the Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented; (ii) amend or supplement the Disclosure
Package to correct such statement or omission; and (iii) supply any amendment or
supplement to you in such quantities as you may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), any event occurs as a result
of which the Disclosure Package, if prior to the availability of the Prospectus,
or the Prospectus as then supplemented would include any 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
at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the
13
respective rules thereunder, including in connection with delivery or use of the
Prospectus, the Company promptly will (1) notify the Underwriter of any such
event, (2) prepare and file with the Commission, subject to the second sentence
of paragraph (i)(a) of this Section 5, an amendment or supplement or new
registration statement which will correct such statement or omission or effect
such compliance, (3) use its best efforts to have any amendment to the
Registration Statement or new registration statement declared effective as soon
as practicable in order to avoid any disruption in use of the Prospectus and (4)
supply any supplemented Prospectus to the Underwriter in such quantities as the
Underwriter may reasonably request.
(d) As soon as practicable, the Company will make generally available
to its security holders and to the Underwriter an earnings statement or
statements of the Company and its subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act (it being understood that
such delivery requirements shall be deemed to have been satisfied by the
Company's compliance with the reporting requirements pursuant to the Exchange
Act).
(e) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by the
Underwriter or any dealer may be required by the Act (including in circumstances
where such requirement may be satisfied pursuant to Rule 172), as many copies of
each Preliminary Prospectus, if any, the Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Underwriter may reasonably request.
The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(f) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the Underwriter
may reasonably designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will pay any fee of the
National Association of Securities Dealers, Inc., in connection with its review
of the offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(g) The Company agrees that, unless it has obtained or will obtain the
prior written consent of the Underwriter, and the Underwriter agrees with the
Company, unless it has obtained or will obtain, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer
relating to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a "free writing prospectus" (as
defined in Rule 405) required to be filed by the Company with the Commission or
retained by the Company under Rule 433; provided that the prior written consent
of the parties hereto shall be deemed to have been given in respect of the Free
Writing Prospectuses included in Schedule I hereto and any electronic road show.
Any such free writing prospectus consented to by the Underwriter or the Company
is hereinafter referred to as a "Permitted Free Writing Prospectus." The Company
agrees that (x) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y)
it has complied and will comply, as the case may be, with the requirements of
Rules 164 and 433 applicable to any Permitted Free
14
Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping.
(h) The Company will not, without the prior written consent of the
Underwriter, offer, sell, contract to sell, pledge, or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any
affiliate of the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Exchange Act, any other shares of Common Stock or any securities convertible
into, or exercisable, or exchangeable for, shares of Common Stock; or publicly
announce an intention to effect any such transaction, for a period of 120 days
after the date of this Agreement, provided, however, that the Company may issue
and sell Common Stock, stock options and other Common Stock based securities or
awards pursuant to any director stock option or equity plan, any employee
benefit plan, stock ownership plan, stock purchase plan or dividend reinvestment
plan of the Company in effect at the Execution Time, the Company may issue
Common Stock issuable upon the conversion or exchange of securities or the
exercise of warrants or options outstanding at the Execution Time or in payment
of outstanding shares of phantom stock outstanding at the Execution Time and the
Company may issue shares of Common Stock as consideration pursuant to
acquisitions and file registration statements with respect to such shares of
Common Stock. Notwithstanding the foregoing, nothing in this provision shall be
construed to limit the ability of Citigroup Inc. to exercise its rights under
the Citigroup Registration Rights Agreement.
(i) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities in violation of
the Exchange Act.
(j) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing with
the Commission of the Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus, the Prospectus, any Issuer Free
Writing Prospectus or other Free Writing Prospectus that is included in the
Disclosure Package, if any, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus or other Free Writing Prospectus that is included in the
Disclosure Package, if any, and all amendments or supplements to any of them, as
may, in each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities; (iv)
the printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the listing of the
Securities on the New York Stock Exchange; (vi) any registration or
qualification of the Securities for offer and sale under the
15
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriter relating to such
registration and qualification); (vii) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriter relating to such
filings); (viii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses of the Company's
accountants (including, for the avoidance of doubt, the fees and expenses of
PricewaterhouseCoopers LLP and KPMG LLP) and the fees and expenses of counsel
(including local and special counsel) for the Company; and (x) all other costs
and expenses incident to the performance by the Company of its obligations
hereunder.
(ii) The Selling Stockholder agrees with the Underwriter that:
(a) The Selling Stockholder will not, without the prior written consent
of the Underwriter offer, sell, contract to sell, pledge or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Selling Stockholder or any affiliate of the Selling Stockholder (except for the
Underwriters) or any person in privity with the Selling Stockholder or any
affiliate of the Selling Stockholder), directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Exchange Act with respect to, any shares of capital stock of the
Company or any securities convertible into, or exercisable or exchangeable for
such capital stock, or publicly announce an intention to effect any such
transaction, for a period of 120 days after the date of the Underwriting
Agreement, other than Securities to be sold by the Selling Stockholder
hereunder, provided, however, that this Section 5(ii)(a) shall not apply to
transactions by the Selling Stockholder relating to shares of Common Stock
solely in connection with sales of shares to index funds whose portfolios are
primarily based on the Standard & Poor's Corporation 500 Composite Index, as the
result of the inclusion of the Company in such index.
(b) The Selling Stockholder will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities, provided, however, that the Selling Stockholder
makes no covenant in this paragraph (b) as to any action by the Company or the
Underwriter.
(c) The Selling Stockholder will advise you promptly, and if requested
by you, will confirm such advice in writing, so as long as delivery of a
prospectus relating to the Securities by an underwriter or dealer may be
required under the Act, of any material change in information in the
Registration Statement, any Preliminary Prospectus or the Prospectus relating to
the Selling Stockholder.
6. Conditions to the Obligations of the Underwriter. The obligations of
the Underwriter to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the
16
Company and the Selling Stockholder contained herein as of the Execution Time,
the Closing Date and the Settlement Date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and the Selling Stockholder made in
any certificates pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholder of their respective obligations hereunder
and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, will be filed in the
manner and within the time period required by Rule 424(b); any material required
to be filed by the Company pursuant to Rule 433(d) under the Act shall have been
filed with the Commission within the applicable time periods prescribed for such
filings by Rule 433; and no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use shall have been issued
and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxxx & Sterling LLP,
counsel for the Company, to have furnished to the Underwriter its opinion, dated
the Closing Date and addressed to the Underwriter, to the effect set forth in
Exhibit A-1 hereto and to such further effect as the Underwriter may reasonably
request and shall have requested and caused Xxx Xxxxxxxx, Deputy General Counsel
for the Company, to have furnished to the Underwriter his opinion, dated the
Closing date and addressed to the Underwriter, to the effect set forth in
Exhibit A-2 hereto, and to such further effect as the Underwriter may reasonably
request.
(c) The Selling Stockholder shall have requested and caused Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP to have furnished to the Underwriter their
opinion dated the Closing Date and addressed to the Underwriter, in form and
substance satisfactory to the Underwriter and the Selling Stockholder shall have
requested Citigroup Inc., Corporate Law Department, to have furnished to the
Underwriter its opinion dated the Closing Date and addressed to the Underwriter,
in form and substance satisfactory to the Underwriter.
(d) The Underwriter shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP such opinion or opinions, dated the Closing Date and
addressed to the Underwriter, with respect to the issuance and sale of the
Securities, the Registration Statement, the Disclosure Package, the Prospectus
(together with any supplement thereto) and other related matters as the
Underwriter may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Underwriter a certificate
of the Company, signed by the Chief Executive Officer or a Vice President and
the Chief Financial Officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, the Disclosure Package and any
supplements or amendments thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the same
effect as if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
17
(ii) no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of any
supplement thereto), there has been no Material Adverse Effect, except as
set forth in or contemplated in the Disclosure Package and the Prospectus
(exclusive of any supplement thereto).
(f) The Selling Stockholder shall have furnished to the Underwriter a
certificate, signed on behalf of the Selling Stockholder, dated the Closing
Date, to the effect that the representations and warranties of the Selling
Stockholder in this Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date.
(g) The Company shall have requested and caused PricewaterhouseCoopers,
LLP, independent auditors for the Company and Permal Group, to have furnished to
the Underwriter, at the Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Underwriter.
(h) The Company shall have requested and caused KPMG LLP, independent
auditors for the Asset Management Businesses to have furnished to the
Underwriter, at the Execution Time and at the Closing Date, letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Underwriter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letters
referred to in paragraphs (g) and (h) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Underwriter, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof), the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(j) Prior to the Closing Date, (i) the Company and (ii) the Selling
Stockholder shall have furnished to the Underwriter such further information,
customary closing and secretary certificates and documents as the Underwriter
may reasonably request, including, without limitation, Forms W-8 or W-9, as
required, from the Selling Stockholder.
(k) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given
18
of any intended or potential decrease in any such rating or of a possible change
in any such rating that does not indicate the direction of the possible change.
(l) The Securities shall have been listed and admitted and authorized
for trading on the New York Stock Exchange, and satisfactory evidence of such
actions shall have been provided to the Underwriter.
(m) As soon as practicable following the Execution Time and prior to
the Closing Date, the Company (i) shall have furnished to the Underwriter
letters substantially in the form of Exhibit B hereto from each executive
officer who would be named in the Company's proxy statement if such proxy
statement were required to be filed on the date hereof and the Closing Date and
(ii) shall use its reasonable best efforts to furnish to the Underwriter letters
substantially in the form of Exhibit B hereto from each director of the Company,
addressed to the Underwriter.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Underwriter and counsel for
the Underwriter, this Agreement and all obligations of the Underwriter hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriter. Notice of such cancellation shall be given to the Company and the
Selling Stockholder in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be
delivered at the Skadden offices on the Closing Date.
7. Reimbursement of the Underwriter's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6(a), 6(b), 6(e), 6(g),
6(h), 6(i), 6(j)(i), 6(k), 6(l) and 6(m) hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Underwriter, the Company will reimburse the Underwriter on demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities. If the sale of the Securities provided for
herein is not consummated because of any termination pursuant to Section 9
hereof, the Company and the Underwriter will split on a 50/50 basis all combined
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by both parties in connection with the proposed
purchase and sale of the Securities
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Underwriter,
the directors, officers, employees and agents of the Underwriter and each person
who controls the Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect
19
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Prospectus, the
Prospectus or any Issuer Free Writing Prospectus, or in any amendment thereof 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 agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; 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 any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by the Underwriter or the Selling Stockholder specifically for
inclusion therein. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) The Selling Stockholder agrees to indemnify and hold harmless the
Underwriter, the directors, officers, employees and agents of the Underwriter
and each person who controls the Underwriter within the meaning of either the
Act or the Exchange Act to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only with reference to written information
furnished to the Company by or on behalf of the Selling Stockholder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which the Selling
Stockholder may otherwise have. The Underwriter and the Company acknowledge that
the only information furnished to the Company by or on behalf of the Selling
Stockholder specifically for use in the Registration Statement, or the
Prospectus or any amendment or supplement thereto are the statements pertaining
to the number of shares owned and the number of shares proposed to be sold by
such Selling Stockholder.
(c) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act and the Selling Stockholder and each person who
controls the Selling Stockholder within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity to the Underwriter,
but only with reference to written information relating to the Underwriter
furnished to the Company by the Underwriter specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to the liability which the Underwriter may otherwise have. The
Company and the Selling Stockholder acknowledge that the statements set forth in
the last paragraph on the cover page regarding delivery of the Securities and,
under the heading "Underwriting" , (i) the sentences related to concessions and
reallowances and (ii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids, in any Preliminary Prospectus, the Prospectus and
any Issuer Free Writing Prospectus constitute the only information furnished in
writing by the Underwriter for inclusion in any Preliminary Prospectus, the
Prospectus and any Issuer Free Writing Prospectus.
(d) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify
20
the indemnifying party in writing of the commencement thereof; but the failure
so to notify the indemnifying party (i) will not relieve it from liability under
paragraph (a), (b) or (c) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a), (b)
or (c) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnified party will
not, without the prior written consent of the indemnifying party (which will not
be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnifying party is an actual or potential party
to such claim or action).
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Selling Stockholder and the
Underwriter agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company, the Selling Stockholder and the Underwriter may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholder on the one hand and by the Underwriter on
the other from the offering of the Securities; provided, however, that in no
case shall the Underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
the Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the
21
Company, the Selling Stockholder and the Underwriter shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, the Selling Stockholder and the Underwriter
in connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company and the Selling Stockholder on the one hand shall be deemed to be equal
to the total net proceeds from the offering (before deducting expenses) received
by the Selling Stockholder, and benefits received by the Underwriter on the
other shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company or the Selling Stockholder on the one hand or the Underwriter on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Selling Stockholder and the Underwriter agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (e), 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. For purposes of
this Section 8, each person who controls the Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of the Underwriter shall have the same rights to contribution as the
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (e). Notwithstanding the
foregoing, the Selling Stockholder shall not be obligated to make contributions
hereunder which in the aggregate exceed the amount for which the Selling
Stockholder would have been liable pursuant to paragraph (b), as limited by
paragraph (f), of this Section 8 had indemnification been available thereunder.
(f) The liability of the Selling Stockholder under the Selling
Stockholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the initial public offering price, net of
underwriting discounts, of the Securities sold by the Selling Stockholder to the
Underwriter.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriter by notice given to the Company by the
Underwriter, prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Underwriter, impractical or
22
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Preliminary Prospectus or the Prospectus (exclusive of any
supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of the Selling Stockholder and of the Underwriter set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter,
the Selling Stockholder or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telefaxed to Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Syndicate Desk and copied to Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, XX, 00000, Attention:
Xxxxxxx X. Xxxxxxxxx, Esq., or, if sent to the Company, will be mailed,
delivered or telefaxed to Xxxx Xxxxx, Inc. (fax no.: (000) 000-0000) and
confirmed to the General Counsel, Xxxx Xxxxx, Inc., 000 Xxxxx Xxxxxx, Xxxxxxxxx,
XX 00000, Attention: Xxxxxx X. Xxxxx, Esq., and copied to Shearman & Sterling
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx Xxxxx, Xx. or if
sent to the Selling Stockholder, will be mailed delivered, or telefaxed to AMAD
Holdings Inc. (fax no.: (000) 000-0000) and confirmed to Xxxx X. Xxxxxx, and to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx X. Xxxxxxxxx.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14. No fiduciary duty. Each of the Company and the Selling Stockholder
hereby acknowledges that (a) the purchase and sale of the Securities pursuant to
this Agreement is an arm's-length commercial transaction between the Company and
the Selling Stockholder, on the one hand, and the Underwriter and any affiliate
through which it may be acting, on the other, (b) the Underwriter is acting as
principal and not as an agent or fiduciary of the Company, the Selling
Stockholder or their respective affiliates, stockholders, employees or any other
party and (c) the engagement of the Underwriter in connection with the offering
and the process leading up to the offering is as independent contractors and not
in any other capacity. Furthermore, each of the Company and the Selling
Stockholder agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether any of the Underwriters
has advised or is currently advising the Company on related or other matters).
Each of the Company and the Selling Stockholder agrees that it will not claim
that the Underwriters have rendered advisory services of any nature or respect,
or owe an agency, fiduciary or similar duty to the
23
Company or the Selling Stockholder, in connection with such transaction or the
process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) among the Company, the Selling
Stockholder and the Underwriter, or any of them, with respect to the subject
matter hereof.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
17. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
18. Waiver of Jury Trial. The parties to this Agreement irrevocably
waive, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
19. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Basic Prospectus, as amended
and supplemented to the Execution Time, (ii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule II hereto, and (iii) any other Free
Writing Prospectus that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package.
"Effective Date" shall mean each date and time that the Registration
Statement and any post-effective amendment or amendments thereto became or
become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date (which shall be the date of the
Prospectus) and time that this Agreement is executed and delivered by the
parties hereto.
24
"Free Writing Prospectus" shall mean a free writing prospectus, as
defined in Rule 405.
"Issuer Free Writing Prospectus" shall mean an issuer free writing
prospectus, as defined in Rule 433.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to the filing of the Prospectus, together
with the Basic Prospectus.
"Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements and any
prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430B, as amended at the Execution Time and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended.
"Rule 158", "Rule 163", "Rule 164", "Rule 172", "Rule 405", "Rule 415",
"Rule 424", "Rule 430B" and "Rule 433" refer to such rules under the Act.
"Well-Known Seasoned Issuer" shall mean a well-known seasoned issuer,
as defined in Rule 405.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholder and the Underwriter.
Very truly yours,
Xxxx Xxxxx, Inc.
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Senior Vice President
AMAD Holdings Inc.
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
By: Citigroup Global Markets Inc.
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
SCHEDULE I
Schedule of Free Writing Prospectuses included in the Disclosure Package
------------------------------------------------------------------------
SCHEDULE II
Significant Subsidiaries
------------------------
Western Asset Management Company
Xxxx Xxxxx Capital Management, Inc.
Private Capital Management, L.P.
CAM North America LLC
Permal Group Ltd.
Royce & Associates, LLC
EXHIBIT A-1
-----------
FORM OF OPINION OF SHEARMAN & STERLING LLP
------------------------------------------
In our review of the Agreement and other documents, we have assumed:
(a) The genuineness of all signatures.
(b) The authenticity of the originals of the documents submitted to us.
(c) The conformity to authentic originals of any documents submitted to
us as copies.
(d) As to matters of fact, the truthfulness of the representations made
in the Agreement and in certificates of public officials and officers of the
Company.
(e) That the Agreement is the legal, valid and binding obligation of
each party thereto, other than the Company, enforceable against each such party
in accordance with its terms.
(f) That:
(i) The Company is an entity duly organized and validly existing
under the laws of the jurisdiction of its organization.
(ii) The Company has power and authority (corporate or otherwise)
to execute, deliver and perform, and has duly authorized, executed and
delivered (except to the extent Generally Applicable Law is applicable
to such execution and delivery), the Agreement.
(iii) The execution, delivery and performance by the Company of the
Agreement have been duly authorized by all necessary action (corporate
or otherwise) and do not:
(A) contravene its certificate or articles of incorporation,
bylaws or other organizational documents;
(B) except with respect to Generally Applicable Law, violate
any law, rule or regulation applicable to it; or
(C) result in any conflict with or breach of any agreement or
document binding on it of which any addressee hereof has knowledge,
has received notice or has reason to know.
(iv) Except with respect to Generally Applicable Law, no
authorization, approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or (to the extent
the same is required under any agreement or document binding on it of
which an addressee has knowledge, has received notice or has reason to
know) any other third party is required for the due execution, delivery
or performance by the Company of the Agreement or, if any such
authorization, approval, consent, action, notice or filing is required,
it has been duly obtained, taken, given or made and is in full force
and effect.
We have not independently established the validity of the foregoing assumptions.
"Generally Applicable Law" means the federal law of the United States
of America, and the law of the State of New York (including the rules or
regulations promulgated thereunder or pursuant thereto), that a New York lawyer
exercising customary professional diligence would reasonably be expected to
recognize as being applicable to the Company, the Agreement or the transactions
governed by the Agreement, and for purposes of assumption paragraph (f) above
and our opinions in paragraphs 1, 2(a) below, the General Corporation Law of the
State of Delaware. Without limiting the generality of the foregoing definition
of Generally Applicable Law, the term "Generally Applicable Law" does not
include any law, rule or regulation that is applicable to the Company, the
Opinion Documents or such transactions solely because such law, rule or
regulation is part of a regulatory regime applicable to any party to any of the
Opinion Documents or any of its affiliates due to the specific assets or
business of such party or such affiliate.
Based upon the foregoing and upon such other investigation as we have
deemed necessary and subject to the qualifications set forth below, we are of
the opinion that:
1. The Company (a) has the corporate power to execute, deliver and
perform the Agreement and (b) has taken all corporate action necessary to
authorize the execution, delivery and performance of the Agreement.
2. The execution and delivery by the Company of the Agreement do not,
and the performance by the Company of its obligations thereunder will not,
(a) result in a violation of the Company's certificate of incorporation or
by-laws or (b) result in a violation of Generally Applicable Law [or any
order, writ, judgment, injunction, decree, determination or award listed in
Schedule A].
3. No authorization, approval or other action by, and no notice to or
filing with, any United States federal or New York governmental authority
or regulatory body, [or any third party that is a party to any of the
documents listed in Schedule A,] is required for the due execution,
delivery or performance by the Company of the Agreement, except as have
been obtained and are in full force and effect under the Securities Act or
and as may be required under the securities or blue sky laws of any
jurisdiction in the United States in connection with the offer and sale of
the Securities,
each of which has been duly obtained, taken, given or made and, to our
knowledge, has not been withdrawn.
4. The Agreement has been duly executed and delivered by the Company.
5. The Securities have been duly authorized by the Company and, when
issued and delivered as provided in the Agreement, the Securities will be
validly issued, and the Common Stock will be fully paid and non-assessable,
and the issuance of such Securities will not be subject to preemptive or
similar rights under the Company's certificate of incorporation [or
documents listed on Schedule Z].
6. The Company is not required to register as an investment company
under the Investment Company Act of 1940, as amended.
7. The statements in the Base Prospectus under the caption "Description
of the Capital Stock" and "Plan of Distribution" and in the Prospectus
Supplement under the caption "Underwriting" in each case, insofar as such
statements constitute summaries of documents referred to therein, fairly
summarize in all material respects the matters referred to therein.
Our opinions expressed above are limited to (i) Generally Applicable
Law and, (ii) in the case of our opinion in paragraph 6 above, the Investment
Company Act of 1940, as amended, and we do not express any opinion herein
concerning any other law.
EXHIBIT A-2
-----------
FORM OF OPINION OF DEPUTY GENERAL COUNSEL OF THE COMPANY
--------------------------------------------------------
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland;
(ii) The Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Disclosure Package
and the Prospectus;
(iii) Except as would not result in a Material Adverse Effect, all of the
outstanding shares of capital stock of each Material Subsidiary that is a
corporation have been duly and validly authorized and issued and are fully paid
and nonassessable, and except as otherwise set forth in the Disclosure Package
and the Prospectus, to such counsel's knowledge, all outstanding shares of
capital stock of the Material Subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any perfected
security interest and any other security interest, claim, lien or encumbrance;
(iv) The Company's authorized equity capitalization is as set forth in the
Disclosure Package and the Prospectus; the capital stock of the Company conforms
in all material respects to the description thereof contained or incorporated by
reference in the Disclosure Package and the Prospectus; the shares of Common
Stock being sold by the Selling Stockholder are duly listed, and admitted and
authorized for trading, on the New York Stock Exchange; the certificates for the
Common Stock are in valid and sufficient form;
(v) To the knowledge of such counsel, there is no pending or threatened action,
suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries or its
or their property, of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Preliminary Prospectus and
the Prospectus, and to the knowledge of such counsel there is no franchise,
contract or other document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required, which might reasonably be expected
to result in a Material Adverse Effect;
(vi) The Registration Statement has become effective under the Act; any required
filing of the Basic Prospectus, any Preliminary Prospectus and the Prospectus,
and any supplements thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued, no proceedings for
that purpose have been instituted or threatened;
(vii) The Agreement has been duly authorized by the Company;
(viii) To the knowledge of such counsel, no consent, approval, authorization,
filing with, or order of any court or governmental agency or body is required by
the Company in connection
with the transactions contemplated by the Agreement, except as such as have been
obtained by the Company under the Act and under the Securities Exchange Act of
1934 and such as may be required by the Company under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Securities
by the Underwriter in the manner contemplated in the Agreement and in the
Preliminary Prospectus and the Prospectus and such other approvals (specified in
such opinion) as have been obtained; and
(ix) Neither the consummation by the Company of any of the transactions
contemplated in the Agreement nor the fulfillment by the Company of the terms of
the Agreement will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or its subsidiaries pursuant to, (i) the charter or by-laws of the
Company or its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument known to such counsel to which the
Company or its subsidiaries is a party or bound or to which its or their
property is subject (excluding any conflict, breach, violation or imposition
that would not reasonably be expected to result in a Material Adverse Effect),
or (iii) to such counsel's knowledge, any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or its subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or its subsidiaries or any
of its or their properties.
EXHIBIT B
---------
[Form of Lock-Up Agreement]
[Letterhead of officer/director of
Xxxx Xxxxx, Inc.]
Xxxx Xxxxx, Inc.
Public Offering of Common Stock
-------------------------------
March , 2006
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Xxxx Xxxxx, Inc., a
Maryland corporation (the "Company"), AMAD Holdings Inc., a Delaware corporation
(the "Selling Stockholder"), and you, relating to an underwritten public
offering of Common Stock, $0.10 par value (the "Common Stock"), of the Company.
In order to induce you to enter into the Underwriting Agreement, the
undersigned will not, without the prior written consent of Citigroup Global
Markets Inc., offer, sell, contract to sell, pledge or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the undersigned or
any affiliate of the undersigned or any person in privity with the undersigned
or any affiliate of the undersigned), directly or indirectly, including the
filing (or participation in the filing) of a registration statement with the
Securities and Exchange Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any shares of capital stock of the
Company or any securities convertible into or exercisable or exchangeable for
such capital stock, or publicly announce an intention to effect any such
transaction, for a period of 60 days after the date of the Underwriting
Agreement. Notwithstanding the foregoing, the restrictions contained in this
letter shall not apply to (i) transfers of shares of Common Stock or options to
purchase the Common Stock made as a bona fide gift or gifts, provided that (A)
the donee or donees thereof agree to be bound by the restrictions set forth
herein, or (B) such gift is a charitable donation to a tax exempt organization
in an amount of 5% or less of the Common Stock owned at the date hereof by the
undersigned, (ii) transfers of shares of Common Stock or options to purchase the
Common Stock made to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that the
trustee of the trust agrees to be bound in writing by the
restrictions set forth herein and provided further that any such transfer shall
not involve a disposition for value, or (iii) transfers or sales of shares of
Common Stock for the payment of exercise costs (including taxes) in respect of
any purchase of Common Stock pursuant to an option granted pursuant to existing
employee benefit plans or director compensation plans of the Company.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer/director]
[Name and address of officer/director]
