Exhibit 1.1
Technical Olympic USA, Inc.
4,500,000 Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
November [ ], 2003
UNDERWRITING AGREEMENT
November [ ], 2003
Citigroup Global Markets Inc.
UBS Securities LLC
as Managing Underwriters
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Technical Olympic USA, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell and Technical Olympic S.A. (the "Selling
Stockholder") proposes to sell to the underwriters named in SCHEDULE A annexed
hereto (the "Underwriters"), for whom you are acting as representatives, an
aggregate of 4,500,000 shares (the "Firm Shares") of Common Stock, $0.01 par
value (the "Common Stock"), of the Company, of which 2,000,000 shares are to be
issued and sold by the Company and 2,500,000 shares are to be sold by the
Selling Stockholder. In addition, solely for the purpose of covering
over-allotments, the Selling Stockholder proposes to grant to the Underwriters
the option to purchase from the Selling Stockholder up to an additional 675,000
shares of Common Stock (the "Additional Shares"). The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." The Shares are described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-106537)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act and also
including any registration statement filed pursuant to Rule 462(b) under the
Act, is herein called the "Registration Statement," and the prospectus, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act) or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the time it
became effective, is herein called the "Prospectus." As used herein, "business
day" shall mean a day on which the New York Stock Exchange is open for trading.
The Company, the Selling Stockholder and the Underwriters
agree as follows:
1. SALE AND PURCHASE. Upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Company agrees to issue, and the Company and the Selling Stockholder, severally
and not jointly, agree to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company and
the Selling Stockholder the respective number of Firm Shares (subject to such
adjustment as you may determine to
avoid fractional shares) which bears the same
proportion to the number of Firm Shares to be sold by the Company or by the
Selling Stockholder, as the case may be, as the number of Firm Shares set forth
opposite the name of such Underwriter in SCHEDULE A attached hereto bears to the
total number of Firm Shares, subject to adjustment in accordance with Section 10
hereof, in each case at a purchase price of $[ ] per Share. Each of the Company
and the Selling Stockholder is advised by you that the Underwriters intend (i)
to make a public offering of their respective portions of the Firm Shares as
soon after the effective date of the Registration Statement as in your judgment
is advisable and (ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus. You may from time to time increase or decrease the
public offering price after the initial public offering to such extent as you
may determine.
In addition, the Selling Stockholder hereby grants to the
several Underwriters the option to purchase, and upon the basis of the
representations and warranties and subject to the terms and conditions herein
set forth, the Underwriters shall have the right to purchase, severally and not
jointly, from the Selling Stockholder, ratably in accordance with the number of
Firm Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters to the Company and the Selling Stockholder for the Firm Shares.
This option may be exercised by UBS Securities LLC ("UBS") on behalf of the
several Underwriters at any time and from time to time on or before the
thirtieth day following the date hereof, by written notice to the Selling
Stockholder. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "additional time of purchase"); PROVIDED, HOWEVER, that the additional
time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
SCHEDULE A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares),
subject to adjustment in accordance with Section 10 hereof.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the
Firm Shares shall be made to the Company and the Selling Stockholder by Federal
Funds wire transfer, against delivery of the certificates for the Firm Shares to
you through the facilities of The Depository Trust Company (the "DTC") for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 10:00 A.M., New York City time, on November [ ], 2003 (unless another time
shall be agreed to by you and the Company and the Selling Stockholder or unless
postponed in accordance with the provisions of Section 10 hereof). The time at
which such payment and delivery are to be made is hereinafter sometimes called
"the time of purchase." Electronic transfer of the Firm Shares shall be made to
you at the time of purchase in such names and in such denominations as you shall
specify.
Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
Deliveries of the documents described in Section 8 hereof with
respect to the purchase of the Shares shall be made at the offices of Xxxxxx
Xxxxxx & Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M.,
New York City time, on the date of the closing of the purchase of the Firm
Shares or the Additional Shares, as the case may be.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has been declared effective
under the Act; no stop order of the Commission preventing or suspending
the use of any Preliminary Prospectus or the effectiveness of the
Registration Statement has been issued and no proceedings for such
purpose have been instituted or, to the Company's knowledge, are
contemplated by the Commission; each Preliminary Prospectus, at the
time of filing thereof, complied in all material respects to the
requirements of the Act and the last Preliminary Prospectus distributed
in connection with the offering of the Shares did not, as of its date,
and does not, as of the date hereof, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; the
Registration Statement complied when it became effective, complies and
will comply, at the time of purchase and any additional time of
purchase, in all material respects with the requirements of the Act and
the Prospectus will comply, as of its date and at the time of purchase
and any additional times of purchase, in all material respects with the
requirements of the Act; the conditions to the use of Form S-1 have
been satisfied; the Registration Statement did not when it became
effective, does not and will not, at the time of purchase and any
additional time of purchase, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and the
Prospectus will not, as of its date and at the time of purchase and any
additional time of purchase, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that the
Company and the Selling Stockholder make no warranty or representation
with respect to any statement contained in the Preliminary Prospectus,
the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning an Underwriter and furnished in
writing by or on behalf of such Underwriter through you to the Company
expressly for use in the Preliminary Prospectus, the Registration
Statement or the Prospectus; and the Company and the Selling
Stockholder has not distributed and will not distribute any offering
material in connection with the offering or sale of the Shares other
than the Registration Statement, the Preliminary Prospectus and the
Prospectus;
(b) as of the date of this Agreement, the Company has an
authorized and outstanding capitalization as set forth under the
heading "Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of purchase
and the additional time of purchase, as the case may be, the Company
shall have an authorized and outstanding capitalization as set forth
under the heading "As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization", except for
immaterial changes in capitalization in the ordinary course of business
consistent with prior practice occurring after the date set forth in
the section of the Registration Statement and the Prospectus entitled
"Capitalization"; all of the issued and outstanding shares of capital
stock, including the Common Stock, of the Company have been duly
authorized and validly issued and are fully paid and non-assessable,
have been issued in compliance with all federal and state securities
laws and were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver this
Agreement and to sell and deliver the Shares as contemplated herein;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct
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of its business requires such qualification, except where the failure
to be so qualified and in good standing would not, individually or in
the aggregate, have a material adverse effect on the business,
properties, financial condition, results of operation or prospects of
the Company and the Subsidiaries (as hereinafter defined) taken as a
whole (a "Material Adverse Effect");
(e) the Company has no subsidiaries (as defined in the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the "Exchange Act")) other than
the entities listed in SCHEDULE B hereto (collectively, the
"Subsidiaries"); other than the equity interests of the Subsidiaries
and the equity interests of the entities listed on SCHEDULE C, the
Company does not own, directly or indirectly, any shares of stock or
any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture,
association or other entity; complete and correct copies of the
certificates of incorporation and the by-laws of the Company and the
organizational and governing documents of the Subsidiaries and all
amendments thereto have been delivered to you, and except as set forth
in the exhibits to the Registration Statement no changes therein will
be made subsequent to the date hereof and prior to the time of purchase
or, if later, the additional time of purchase; each Subsidiary has been
duly incorporated or formed and is validly existing as a corporation,
limited liability company, limited partnership or statutory trust in
good standing under the laws of the jurisdiction of its incorporation
or formation, with full corporate, limited liability company, limited
partnership or trust power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; each Subsidiary is duly qualified to do
business as a foreign corporation, limited liability company, limited
partnership or statutory trust and is in good standing in each
jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually
or in the aggregate, have a Material Adverse Effect; all of the
outstanding shares of capital stock of each of the Subsidiaries have
been duly authorized and validly issued, are fully paid and
non-assessable and (except as otherwise described in this Section 3(e))
are owned by the Company subject to no security interest, other
encumbrance or adverse claims, other than the security interests and
encumbrances described in the Registration Statement and the
Prospectus; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in the
Subsidiaries are outstanding;
(f) the Shares have been duly and validly authorized and, in
the case of the Shares to be sold by the Selling Stockholder are, and
in the case of the Shares to be sold by the Company, when issued and
delivered against payment therefor as provided herein will be, duly and
validly issued, fully paid and non-assessable and free of statutory and
contractual preemptive rights, resale rights, rights of first refusal
and similar rights;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus and the certificates
for the Shares are in due and proper form and the holders of the Shares
will not be subject to personal liability by reason of being such
holders;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) neither the Company nor any of the Subsidiaries is in
breach or violation of or in default under (nor has any event occurred
which with notice, lapse of time or both would result in any breach of,
constitute a default under or give the holder of any indebtedness (or a
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all
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or a part of such indebtedness under) (i) its respective charter or
by-laws or other organizational or governing documents, or (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected, except for, in the case of (ii),
such breaches, violations or defaults as would not, individually or in
the aggregate, have a Material Adverse Effect, and the execution,
delivery and performance of this Agreement, the sale of the Shares and
the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which with notice, lapse of
time or both would result in any breach of or constitute a default
under) (i) the charter or by-laws or other organizational or governing
documents of the Company or any of the Subsidiaries, or (ii) any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, or (iii) any federal,
state, local or foreign law, regulation or rule or any decree, judgment
or order applicable to the Company or any of the Subsidiaries, except
for, in the case of (ii), such conflicts, breaches, violations or
defaults as would not, individually or in the aggregate, have a
Material Adverse Effect;
(j) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance or sale of the Shares or the consummation by the
Company of the transactions contemplated hereby other than registration
of the Shares under the Act, which has been or will be effected, and
any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the
Underwriters or under the rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD");
(k) except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any shares of Common Stock or
shares of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of
Common Stock or shares of any other capital stock or other equity
interests of the Company, and (iii) no person has the right to act as
an underwriter or as a financial advisor to the Company in connection
with the offer and sale of the Shares, in the case of each of the
foregoing clauses (i), (ii) and (iii), whether as a result of the
filing or effectiveness of the Registration Statement or the sale of
the Shares as contemplated thereby or otherwise; no person has the
right, contractual or otherwise, to cause the Company to register under
the Act any shares of Common Stock or shares of any other capital stock
or other equity interests of the Company (except as set forth in
Registration Statement and the Prospectus), or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise;
(l) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business, except where the absence of such license,
authorization, consent, approval or filing would not, individually or
in the aggregate, have a Material Adverse Effect; neither the Company
nor any of the Subsidiaries is in violation of, or in default under, or
has received notice of any proceedings relating to revocation or
modification of, any such license, authorization, consent or
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approval or any federal, state, local or foreign law, regulation or
rule or any decree, order or judgment applicable to the Company or any
of the Subsidiaries, except where such violation, default, revocation
or modification would not, individually or in the aggregate, have a
Material Adverse Effect;
(m) there are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the Company's knowledge,
contemplated to which the Company or any of the Subsidiaries or any of
their respective directors or officers is a party or of which any of
their respective properties is subject at law or in equity, before or
by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, except any such action,
suit, claim, investigation or proceeding which would not result in a
judgment, decree or order having, individually or in the aggregate, a
Material Adverse Effect or preventing consummation of the transactions
contemplated hereby;
(n) Ernst & Young LLP and BDO Xxxxxxx, LLP, whose respective
reports on the consolidated financial statements of the Company and the
Subsidiaries and Xxxxx Holdings Corp. ("Xxxxx") and its subsidiaries
are filed with the Commission as part of the Registration Statement and
the Prospectus, are each independent public accountants as required by
the Act;
(o) the audited financial statements included in the
Registration Statement and the Prospectus, together with the related
notes and schedules, present fairly in all material respects the
consolidated financial position of the Company and the Subsidiaries and
Xxxxx and its subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and
the Subsidiaries for the periods specified and have been prepared in
compliance with the requirements of the Act and in conformity with
United States generally accepted accounting principles applied on a
consistent basis during the periods involved; any pro forma financial
statements or data included in the Registration Statement and the
Prospectus comply with the requirements of Regulation S-X of the Act
and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable; the pro forma adjustments used
therein are appropriate to give effect to the transactions or
circumstances described therein and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements and data; the other financial and operational data set forth
in the Registration Statement and the Prospectus are accurately
presented and prepared on a basis consistent with the financial
statements and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be included
in the Registration Statement and the Prospectus that are not included
as required; and the Company and the Subsidiaries do not have any
material liabilities or obligations, direct or contingent (including
any off-balance sheet obligations), that are required to be disclosed
and that are not disclosed in the Registration Statement and the
Prospectus;
(p) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any development involving
a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the Company
and the Subsidiaries taken as a whole, (ii) any transaction which is
material to the Company and the Subsidiaries taken as a whole, (iii)
any obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or the Subsidiaries, which is
material to the Company and the Subsidiaries taken as a whole, (iv) any
change in the capital stock of the Company or the Subsidiaries, except
pursuant to the Company's stock option plans in effect as of the date
hereof, or any change in the outstanding indebtedness of the Company or
the Subsidiaries except changes
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in the ordinary course of business consistent with prior practice or
(v) any dividend or distribution of any kind declared, paid or made on
the capital stock of the Company;
(q) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(r) the Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Registration Statement and in the Prospectus as being owned by each of
them, free and clear of all liens, claims, security interests or other
encumbrances except such as (i) are described in the Registration
Statement and the Prospectus, (ii) do not, individually or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its Subsidiaries, or (iii) where failure to have
such good and marketable title or to be free of such liens, claims,
security interests or the encumbrances would not, individually or in
the aggregate, have a Material Adverse Effect; all the property
described in the Registration Statement and the Prospectus as being
held under lease by the Company or a Subsidiary is, assuming due and
valid execution by the lessor, held thereby under valid, subsisting and
enforceable leases, except where the failure to be so held would not,
individually or in the aggregate, have a Material Adverse Effect;
(s) the Company and the Subsidiaries own, or have obtained
valid and enforceable licenses for, or other rights to use, the
inventions, patent applications, patents, trademarks (both registered
and unregistered), tradenames, copyrights, trade secrets and other
proprietary information described in the Registration Statement and the
Prospectus as being owned or licensed by them or which are necessary
for the conduct of their respective businesses, except where the
failure to own, license or have such rights would not, individually or
in the aggregate, have a Material Adverse Effect (collectively,
"Intellectual Property"); (i) there are no third parties who have or,
to the Company's knowledge, will be able to establish rights to any
Intellectual Property, except for the ownership rights of the owners of
the Intellectual Property which is licensed to the Company and the
rights of third parties that would not, individually or in the
aggregate, have a Material Adverse Effect; (ii) to the Company`s
knowledge, there is no infringement by third parties of any
Intellectual Property; (iii) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any Intellectual Property,
and the Company is unaware of any facts which could form a reasonable
basis for any such claim; (iv) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any Intellectual Property, and the
Company is unaware of any facts which could form a reasonable basis for
any such claim; (v) there is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others that the Company
infringes or otherwise violates any patent, trademark, copyright, trade
secret or other proprietary rights of others, and the Company is
unaware of any facts which could form a reasonable basis for any such
claim; (vi) to the Company's knowledge ,there is no patent or patent
application that contains claims that interfere with the issued or
pending claims of any of the Intellectual Property; and (vii) to the
Company's knowledge, there is no prior art that may render any patent
application filed by the Company of the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office;
(t) neither the Company nor any of the Subsidiaries is engaged
in any unfair labor practice; except for matters which would not,
individually or in the aggregate, have a Material Adverse Effect, (i)
there is (A) no unfair labor practice complaint pending or, to the
Company's
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knowledge, threatened against the Company or any of the Subsidiaries
before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining
agreements is pending or threatened, (B) no strike, labor dispute,
slowdown or stoppage pending or, to the Company's knowledge, threatened
against the Company or any of the Subsidiaries and (C) no union
representation dispute currently existing concerning the employees of
the Company or any of the Subsidiaries, and (ii) to the Company's
knowledge, (A) no union organizing activities are currently taking
place concerning the employees of the Company or any of the
Subsidiaries and (B) there has been no violation of any federal, state,
local or foreign law relating to discrimination in the hiring,
promotion or pay of employees, any applicable wage or hour laws or any
provision of the Employee Retirement Income Security Act of 1974
("ERISA") or the rules and regulations promulgated thereunder
concerning the employees of the Company or any of the Subsidiaries;
(u) the Company and the Subsidiaries and their properties,
assets and operations are in compliance with, and hold all permits,
authorizations and approvals required under, Environmental Laws (as
defined below), except to the extent that failure to so comply or to
hold such permits, authorizations or approvals would not, individually
or in the aggregate, have a Material Adverse Effect; there are no past,
present or, to the Company's knowledge, reasonably anticipated future
events, conditions, circumstances, activities, practices, actions,
omissions or plans that could reasonably be expected to give rise to
any material costs or liabilities to the Company or the Subsidiaries
under, or to interfere with or prevent compliance by the Company or the
Subsidiaries with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries (i) is, to the
Company's knowledge, the subject of any investigation, (ii) has
received any notice or claim, (iii) is a party to or, to the Company's
knowledge, affected by any pending or threatened action, suit or
proceeding, (iv) is bound by any judgment, decree or order or (v) has
entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release or
threatened release or cleanup at any location of any Hazardous
Materials (as defined below) (as used herein, "Environmental Law" means
any federal, state, local or foreign law, statute, ordinance, rule,
regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to
health, safety or the protection, cleanup or restoration of the
environment or natural resources, including those relating to the
distribution, processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and "Hazardous Materials" means any material
(including, without limitation, pollutants, contaminants, hazardous or
toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
(v) in the ordinary course of its business, the Company and
each of the Subsidiaries conducts a periodic review of the effect of
the Environmental Laws on its properties, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
cleanup, closure of properties or compliance with the Environmental
Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties);
(w) all tax returns required to be filed by the Company and
each of the Subsidiaries have been filed, and all taxes and other
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have
been paid, other than those being contested in good faith and for which
adequate reserves have been provided or those, in the case of state and
local taxes and assessments only, as would not, individually or in the
aggregate, have a Material Adverse Effect;
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(x) the Company and each of the Subsidiaries maintains such
insurance covering its properties, operations, personnel and businesses
as the Company deems adequate; such insurance insures against such
losses and risks to an extent which is adequate in accordance with
customary industry practice to protect the Company and the Subsidiaries
and their businesses; all such insurance is fully in force on the date
hereof and will be fully in force at the time of purchase and any
additional time of purchase, except where such failure to be in force
would not, individually or in the aggregate, have a Material Adverse
Effect;
(y) neither the Company nor any of the Subsidiaries has
sustained since the date of the last audited financial statements
included in the Registration Statement and the Prospectus any material
loss or interference with its respective business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree;
(z) the Company has not sent or received any communication
regarding termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has
been threatened by the Company or, to the Company's knowledge, any
other party to any such contract or agreement;
(aa) the Company and each of the Subsidiaries 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 authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (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
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(bb) the Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 and
15d-14 under the Exchange Act); such disclosure controls and procedures
are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the
Company's Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; the Company's auditors and the Audit Committee of the
Board of Directors have been advised of: (i) any significant
deficiencies in the design or operation of internal controls which
could adversely affect the Company's ability to record, process,
summarize, and report financial data; and (ii) any fraud, whether or
not material, that involves management or other employees who have a
role in the Company's internal controls; any material weaknesses in
internal controls have been identified for the Company's auditors; and
since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses;
(cc) the Company has provided you true, correct, and complete
copies of all documentation pertaining to any extension of credit in
the form of a personal loan made, directly or indirectly, by the
Company to any director or executive officer of the Company, or to any
family member or affiliate of any director or executive officer of the
Company; and since July 30, 2002, the Company has not, directly or
indirectly, including through any Subsidiary: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in the
form of a personal loan, to or for any director or executive officer of
the Company, or to or for any family member or affiliate of any
director or executive officer of the Company; or (ii) made any material
modification, including any renewal thereof, to any term of any
personal
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loan to any director or executive officer of the Company, or any family
member or affiliate of any director or executive officer, which loan
was outstanding on July 30, 2002;
(dd) any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from
such sources to the extent required;
(ee) neither the Company nor any of the Subsidiaries nor, to
the Company's knowledge, any employee or agent of the Company or the
Subsidiaries has made any payment of funds of the Company or the
Subsidiaries or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Registration Statement or
the Prospectus;
(ff) neither the Company nor any of the Subsidiaries nor any
of their respective directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or
which has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares; and
(gg) to the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's
officers, directors or 5% or greater securityholders, except as set
forth in the Registration Statement and the Prospectus.
In addition, any certificate signed by any officer of the
Company or the Selling Stockholder and delivered to the Underwriters or counsel
for the Underwriters in connection with the offering of the Shares shall be
deemed to be a representation and warranty by the Company or the Selling
Stockholder, as the case may be, as to matters covered thereby, to each
Underwriter.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER.
The Selling Stockholder represents and warrants to each Underwriter that:
(a) the Selling Stockholder now is and at the time of delivery
of such Shares (whether the time of purchase or additional time of
purchase, as the case may be) will be, the lawful owner of the number
of Shares to be sold by such Selling Stockholder pursuant to this
Agreement and has and, at the time of delivery thereof, will have valid
and marketable title to such Shares, and upon delivery of and payment
for such Shares (whether at the time of purchase or the additional time
of purchase, as the case may be), the Underwriters will acquire valid
and marketable title to such Shares free and clear of any claim, lien,
encumbrance, security interest, community property right, restriction
on transfer or other defect in title;
(b) the Selling Stockholder has and at the time of delivery of
such Shares (whether the time of purchase or additional time of
purchase, as the case may be) will have, full legal right, power and
capacity, and any approval required by the laws of the United States or
any state thereof (other than those imposed by the Act and the
securities or blue sky laws of certain jurisdictions) or Greek law, to
sell, assign, transfer and deliver such Shares in the manner provided
in this Agreement;
-10-
(c) each of this Agreement and the Lock-Up Agreement has been
duly executed and delivered by the Selling Stockholder and is a legal,
valid and binding agreement of the Selling Stockholder enforceable in
accordance with its terms;
(d) when the Registration Statement becomes effective and at
all times subsequent thereto through the latest of the time of
purchase, additional time of purchase or the termination of the
offering of the Shares, the Registration Statement and Prospectus, and
any supplements or amendments thereto as relate to information
furnished by the Selling Stockholder will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading;
(e) to the Selling Stockholder's knowledge, when the
Registration Statement becomes effective and at all times subsequent
thereto through the latest of the time of purchase, additional time of
purchase or the termination of the offering of the Shares, the
Registration Statement and Prospectus, and any supplements or
amendments thereto will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading;
(f) neither the Selling Stockholder nor any of its directors,
officers, affiliates or controlling persons has taken, directly or
indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(g) it has filed any notices required by the Athens Exchange,
Greek law or the laws of the United States or any state thereof in
connection with its disposition of the Shares;
(h) the Selling Stockholder has been duly organized and is
validly existing under the laws of the Republic of Greece;
(i) the statements in the Prospectus under the caption
"Security Ownership" insofar as such statements constitute a summary of
matters pertaining to the Selling Stockholder referred to therein
present fairly the information called for with respect to such matters;
(j) the Selling Stockholder's articles of association, as in
effect at the date hereof, have been duly adopted by the Selling
Stockholder and are binding on the Selling Stockholder and its
stockholders;
(k) to the Selling Stockholder's knowledge, all
representations and warranties of the Company contained in Section 3
are true and correct;
(l) the execution, delivery and performance by the Selling
Stockholder of this Agreement and the Lock-Up Agreement do not and will
not and the sale and delivery of the Shares do not and will not breach
any provision of its articles of association, and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under any of the laws of the Republic of
Greece or the United States or any state thereof or any existing order
or decree of general application of any governmental authority or
agency or any official body of the Republic of Greece or the United
States or any state thereof;
-11-
(m) all approvals, consents, authorizations, orders,
registrations, clearances and qualifications of or with any United
States federal or state court, Greek court, or governmental agency or
body or any stock exchange authorities within Greece or the United
States or any state thereof having jurisdiction over the Selling
Stockholder required for the sale of the Shares and for the execution
and delivery by the Selling Stockholder of this Agreement and the
Lock-Up Agreement, have been obtained or made and are in full force and
effect;
(n) the choice of laws of the State of New York to govern the
Agreement will be upheld as a valid choice of law in the courts of the
Republic of Greece, provided it is pleaded as such;
(o) there is no applicable statutory provision which would
restrict the enforcement in the Republic of Greece of a judgment
obtained in a competent United States or New York State Court (each an
"American Court"), and a final and conclusive monetary judgment
obtained in an American Court against the Selling Stockholder for a
definite sum of money (not being a sum payable in respect of taxes or
like charges or in respect of a fine or penalty) arising out of or in
relation to this Agreement would be enforceable by action in the courts
of the Republic of Greece without a retrial or re-examination of the
matters thereby adjudicated upon provided that the proceedings before,
and the judgment of, such American Court were not impeachable on the
following grounds: (a) the defeated party not having had the
opportunity to defend itself (other than by virtue of a provision
equally applicable to U.S. citizens); (b) the decision being contrary
to a decision of a Greek court enjoying a RES JUDICATA effect in a
dispute between the same parties and (c) the decision being contrary to
the BONOS MORES or to Greek public order;
(p) to ensure the legality, validity, enforceability or
admissibility into evidence of this Agreement or the Lock-Up Agreement
in the Republic of Greece, it is not necessary that any such document
be submitted to, filed or recorded with any court or other authority in
the Republic of Greece or that any tax, imposition or charge be paid in
the Republic of Greece on or in respect of any such document, other
than charges relating to creating a Greek translation of the relevant
document;
(q) the submission to the jurisdiction of a competent American
Court, contained herein is valid and binding under the laws of the
Republic of Greece; the waiver by the Selling Stockholder of any
objection to the venue of a proceeding in such American Court is legal,
valid and binding; the waiver by the Selling Stockholder of all
immunity (whether on the basis of sovereignty or otherwise) from
jurisdiction, service of process, attachment (both before and after
judgment) and execution to which it might otherwise be entitled in any
claim in such American Court is legal, valid and binding; and
(r) service of process effected in the manner set forth in
Section 15 of this Agreement, assuming its validity under New York law,
will be effective, for the purposes of the laws of the Republic of
Greece, to confer valid personal jurisdiction over the Selling
Stockholder in an American Court, provided that such appointment of
agent for service of process by the Selling Stockholder has not
previously been revoked.
5. CERTAIN COVENANTS OF THE COMPANY. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states or other
jurisdictions as you may designate and to maintain such qualifications
in effect so long as you may request for the distribution of the
Shares; PROVIDED that the Company shall not be
-12-
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as
many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or any post-effective
amendment thereto to be declared effective before the offering of the
Shares may commence, the Company will endeavor to cause the
Registration Statement or such post-effective amendment to become
effective as soon as possible and the Company will advise you promptly
and, if requested by you, will confirm such advice in writing, (i) when
the Registration Statement and any such post-effective amendment
thereto has become effective, and (ii) if Rule 430A under the Act is
used, when the Prospectus is filed with the Commission pursuant to Rule
424(b) under the Act (which the Company agrees to file in a timely
manner under such Rule);
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for,
or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its
best efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement
the Registration Statement or the Prospectus and to provide you and
Underwriters' counsel copies of any such documents for review and
comment a reasonable amount of time prior to any proposed filing and to
file no such amendment or supplement to which you shall object in
writing;
(e) subject to Section 5(d) hereof, to file promptly all
reports and any definitive proxy or information statement required to
be filed by the Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to provide you with a copy of such
reports and statements and other documents to be filed by the Company
pursuant to Section 13, 14 or 15(d) of the Exchange Act during such
period a reasonable amount of time prior to any proposed filing, and to
promptly notify you of such filing (so long as you execute a
confidentiality agreement in a form reasonably acceptable to Company
counsel);
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
-13-
(g) to advise the Underwriters promptly of the happening of
any event within the time during which a prospectus relating to the
Shares is required to be delivered under the Act which could require
the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and, during such time, subject to Section 5(d) hereof, to
prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change;
(h) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) of the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period but not later than March 31, 2005;
(i) to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a
consolidated balance sheet and statements of income, shareholders'
equity and cash flow of the Company and the Subsidiaries for such
fiscal year, accompanied by a copy of the certificate or report thereon
of nationally recognized independent certified public accountants);
(j) to furnish to you three copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto) and sufficient
copies of the foregoing (other than exhibits) for distribution of a
copy to each of the other Underwriters;
(k) to furnish to you promptly and, upon request, to each of
the other Underwriters for a period of five years from the date of this
Agreement (i) copies of any reports or other communications which the
Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the
Commission, (iii) copies of documents or reports filed with any
national securities exchange on which any class of securities of the
Company is listed and (iv) such other information as you may reasonably
request regarding the Company or the Subsidiaries; provided that you
will execute a confidentiality agreement in a form reasonably
acceptable to Company counsel to the extent the information you are
provided is not publicly available;
(l) to furnish to you as early as practicable prior to the
time of purchase and any additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been
read by the Company's independent certified public accountants, as
stated in their letter to be furnished pursuant to Section 8(d) hereof;
(m) to apply the net proceeds received by the Company from the
sale of the Firm Shares in the manner set forth under the caption "Use
of Proceeds" in the Prospectus and that the Selling Stockholder will
receive all the proceeds from the sale of the Shares sold by the
Selling Stockholder;
(n) to pay all costs, expenses, fees and taxes in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any
-14-
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the registration, sale and
delivery of the Shares including any stock or transfer taxes and stamp
or similar duties payable upon the sale, issuance or delivery of the
Shares to the Underwriters, (iii) the producing, word processing and/or
printing of this Agreement, any Agreement Among Underwriters, any
dealer agreements and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies
of each thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state or
foreign laws and the determination of their eligibility for investment
under state or foreign law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel for the Underwriters)
and the printing and furnishing of copies of any blue sky surveys or
legal investment surveys to the Underwriters and to dealers, (v) any
listing of the Shares on any securities exchange or qualification of
the Shares for quotation on the National Association of Securities
Dealers Automated Quotation National Market System ("NASDAQ") and any
registration thereof under the Exchange Act, (vi) any filing for review
of the public offering of the Shares by the NASD, including the legal
fees and filing fees and other disbursements of counsel to the
Underwriters, (vii) the fees and disbursements of any transfer agent or
registrar for the Shares, (viii) the costs and expenses of the Company
and the Selling Stockholder relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of
the Shares to prospective investors and the Underwriters' sales forces,
including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants
engaged in connection with the road show presentations, travel, lodging
and other expenses incurred by the officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with
the road show and (ix) the performance of the Company's and the Selling
Stockholder's other obligations hereunder;
(o) not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose
of or agree to dispose of, directly or indirectly, any Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or other rights to purchase Common Stock
or any other securities of the Company that are substantially similar
to Common Stock, for a period of 90 days after the date hereof (the
"Lock-Up Period"), without the prior written consent of the Managing
Underwriters, except for (i) the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement and the Prospectus and (iii)
the issuance of employee stock options not exercisable during the
Lock-Up Period pursuant to stock option plans described in the
Registration Statement and the Prospectus;
(p) to use its best efforts to cause the Common Stock to be
listed for quotation on NASDAQ; and
(q) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the
Common Stock.
6. CERTAIN COVENANTS OF THE SELLING STOCKHOLDER. The Selling
Stockholder agrees that it will advise the Managing Underwriters promptly, and
if requested by the Managing Underwriters,
-15-
will confirm such advice in writing, so long as delivery of a prospectus
relating to the Shares by an underwriter or dealer may be required under the
Act, of (i) any material adverse change, or any development involving a
prospective material adverse change, in the business, properties, management,
financial condition or results of operations of the Company and the Subsidiaries
taken as a whole, known to it, (ii) any change in information in the
Registration Statement or the Prospectus relating to such Selling Stockholder,
(iii) any new material information relating to the Company or relating to any
matter stated in the Prospectus which comes to the attention of the Selling
Stockholder or (iv) any information of which it has knowledge that causes the
Registration Statement or the Prospectus to contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are
not delivered for any reason other than the termination of this Agreement
pursuant to the fifth paragraph of Section 10 hereof or the default by one or
more of the Underwriters in its or their respective obligations hereunder, the
Company shall, in addition to paying the amounts described in Section 5(n)
hereof, reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable and documented fees and disbursements of their counsel.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholder on the date hereof, at the time of purchase and, if applicable, at
the additional time of purchase, the performance by the Company and the Selling
Stockholder of its obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion of
Akerman Senterfitt, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form and substance satisfactory to Xxxxxx
Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters.
(b) The Selling Stockholder shall furnish to you at the time
of purchase and, if applicable, at the additional time of purchase, an
opinion of Akerman Senterfitt, counsel for the Selling Stockholder,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters and in form and substance
satisfactory to Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the
Underwriters.
(c) The Selling Stockholder shall furnish to you at the time
of purchase and at the additional time of purchase, as the case may be,
an opinion of Xxxxxxx-Xxxxxx, Greek counsel for the Selling
Stockholder, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters, and in form and
substance satisfactory to Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the
Underwriters.
(d) You shall have received from Ernst & Young LLP letters
dated, respectively, the date of this Agreement, the time of purchase
and, if applicable, the additional time of purchase, and addressed to
the Underwriters (with reproduced copies for each of the Underwriters)
in the forms heretofore approved by the Managing Underwriters. You
shall have received from BDO Xxxxxxx, LLP a letter dated the date of
this Agreement and addressed to the Underwriters (with reproduced
copies for each of the Underwriters) in the form heretofore approved by
the Managing Underwriters.
-16-
(e) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion
of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the
time of purchase or the additional time of purchase, as the case may
be, as to the matters referred to in subparagraphs (iv), (v)
(pertaining to the Shares to be sold by the Company), (viii) (with
respect to the Shares only), (ix) and (x) and a favorable letter as to
the last subparagraph of paragraph (a) of this Section 8.
(f) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the opinion of Karatzas
& Partners Law Firm, Greek counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be, in
form and substance satisfactory to the Underwriters.
(g) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus shall have been filed to which
you object in writing.
(h) The Registration Statement shall become effective not
later than 5:30 P.M. New York City time on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:30 P.M., New York City time, on the second full business day
after the date of this Agreement.
(i) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) the Prospectus
and all amendments or supplements thereto shall not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not
misleading.
(j) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, no material adverse change or any development involving a
prospective material adverse change in the business, properties,
management, financial condition or results of operations of the Company
and the Subsidiaries taken as a whole shall occur or become known.
(k) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of its Chief Executive Officer or its Chief Financial
Officer in the form attached as EXHIBIT B hereto.
(l) You shall have received on the date hereof signed
agreements dated the date hereof (each a "Lock-Up Agreement"), in the
form set forth as EXHIBIT A hereto, of the Selling Stockholder and each
of the persons listed on SCHEDULE D annexed hereto.
(m) The Company and the Selling Stockholder shall have
furnished to you such other documents and certificates as to the
accuracy and completeness of any statement in the Registration
Statement and the Prospectus as of the time of purchase and, if
applicable, the additional time of purchase, as you may reasonably
request.
-17-
(n) The Shares shall have been approved for quotation on
NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
(o) The Selling Stockholder will at the time of purchase and
the additional time of purchase, as the case may be deliver to you a
certificate of the Selling Stockholder to the effect that the
representations and the warranties of the Selling Stockholder as set
forth in this Agreement are true and correct as of each such date.
9. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement
shall become effective (i) if Rule 430A under the Act is not used, when you
shall have received notification of the effectiveness of the Registration
Statement or (ii) if Rule 430A under the Act is used, when the parties hereto
have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of the Managing Underwriters,
if (x) since the time of execution of this Agreement or the earlier respective
dates as of which information is given in the Registration Statement and the
Prospectus, there has been any material adverse change or any development
involving a prospective material adverse change in the business, properties,
management, financial condition or results of operation of the Company and the
Subsidiaries taken as a whole, which would, in the sole judgment of the Managing
Underwriters, make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus, or (y) there
shall have occurred: (i) a suspension or limitation in trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ; (ii) a suspension or material limitation in trading in the Company's
securities on the NASDAQ; (iii) a general moratorium on commercial banking
activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) an outbreak or escalation of hostilities or
acts of terrorism involving the United States or a declaration by the United
States of a national emergency or war; or (v) any other calamity or crisis or
any change in financial, political or economic conditions in the United States
or elsewhere, if the effect of any such event specified in clause (iv) or (v) in
the sole judgment of the Managing Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement and the
Prospectus, or (z) there shall have occurred any downgrading, or any notice or
announcement shall have been given or made of (i) any intended or potential
downgrading or (ii) any watch, review or possible change that does not indicate
an affirmation or improvement, in the rating accorded any securities of or
guaranteed by the Company or any Subsidiary by any "nationally recognized
statistical rating organization," as that term is defined in Rule 436(g)(2)
under the Act.
If the Managing Underwriters elect to terminate this Agreement
as provided in this Section 9, the Company, the Selling Stockholder and each
other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company or the Selling Stockholder, as the case may be, shall be unable to
comply with any of the terms of this Agreement, the Company or the Selling
Stockholder, as the case may be, shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 5(n), 7 and 11
hereof), and the Underwriters shall be under no obligation or liability to the
Company and the Selling Stockholder under this Agreement (except to the extent
provided in Section 10 hereof) or to one another hereunder.
-18-
10. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections
8 and 9 hereof, if any Underwriter shall default in its obligation to take up
and pay for the Firm Shares to be purchased by it hereunder (otherwise than for
a failure of a condition set forth in Section 8 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 9
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall take up and
pay for (in addition to the aggregate number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as you may designate with the consent of each Underwriter
so designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in SCHEDULE A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company and the Selling Stockholder agree with the
non-defaulting Underwriters that they will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 10 with like effect
as if such substituted Underwriter had originally been named in SCHEDULE A.
If the aggregate number of Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Firm Shares which all Underwriters agreed to purchase hereunder, and if
neither the non-defaulting Underwriters nor the Company shall make arrangements
within the five business day period stated above for the purchase of all the
Firm Shares which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall terminate without further act or deed and
without any liability on the part of the Company or the Selling Stockholder to
any non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company or the Selling Stockholder. Nothing in
this paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
11. INDEMNITY AND CONTRIBUTION.
(a) The Company and the Selling Stockholder jointly and
severally agree to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against
any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or
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in the Registration Statement as amended by any post-effective amendment thereof
by the Company) or in a Prospectus (the term Prospectus for the purpose of this
Section 9 being deemed to include any Preliminary Prospectus, the Prospectus and
the Prospectus as amended or supplemented by the Company), or arises out of or
is based upon any omission or alleged omission to state a material fact required
to be stated in either such Registration Statement or such Prospectus or
necessary to make the statements made therein not misleading, except insofar as
any such loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in such Registration Statement or such Prospectus or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information
not misleading; provided, however, that with respect to any untrue statement or
omission of material fact made in any Preliminary Prospectus, the indemnity
agreement contained in this Section 11(a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, damage, expense,
liability or claim purchased the Shares concerned, to the extent that any such
loss, damage, expense, liability or claim of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (v) the Company had
previously furnished sufficient copies of the Prospectus to the Managing
Underwriters, (w) delivery of the Prospectus was required by the Act to be made
to such person, (x) the untrue statement or omission of a material fact
contained in the Preliminary Prospectus was corrected in the Prospectus, (y)
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Shares to such person, a copy of the Prospectus
and (z) such loss, damage, expense, liability or claim was not caused by (i) any
untrue statement or alleged untrue statement made by the Company or the Selling
Stockholder in Section 3 or 4 hereof or the failure by the Company or the
Selling Stockholder to perform when and as required by any agreement or covenant
contained herein or (ii) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials provided by the Company
or the Selling Stockholder or based upon written information furnished by or on
behalf of the Company or the Selling Stockholder including, without limitation,
slides, videos, films or tape recordings used in connection with the marketing
of the Shares.
If any action, suit or proceeding (each, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Company or the Selling Stockholder pursuant to the
foregoing paragraph, such Underwriter or such person shall promptly notify the
Company and the Selling Stockholder in writing of the institution of such
Proceeding and the Company or the Selling Stockholder, as the case may be, shall
assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses; PROVIDED, HOWEVER, that the omission to so notify the Company or the
Selling Stockholder shall not relieve the Company or the Selling Stockholder
from any liability which the Company or the Selling Stockholder may have to any
Underwriter or any such person or otherwise. Such Underwriter or such person
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or of such person unless the employment of such counsel shall have
been authorized in writing by the Company or the Selling Stockholder in
connection with the defense of such Proceeding or the Company or the Selling
Stockholder shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to
or in conflict with those available to the Company or the Selling Stockholder
(in which case the Company or the Selling Stockholder shall not have the right
to direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company or the Selling Stockholder and paid as incurred (it being understood,
however, that the Company or the Selling Stockholder shall not be liable for the
expenses of more than one separate
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counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). The Company or the Selling
Stockholder shall not be liable for any settlement of any Proceeding effected
without its written consent but if settled with the written consent of the
Company or the Selling Stockholder, the Company or the Selling Stockholder
agrees to indemnify and hold harmless any Underwriter and any such person from
and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, the Selling Stockholder
and any person who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons, from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, the Company, the Selling Stockholder or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information concerning such Underwriter furnished in writing
by or on behalf of such Underwriter through you to the Company expressly for use
in the Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such information
not misleading.
If any Proceeding is brought against the Company, the Selling
Stockholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, the
Selling Stockholder or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
PROVIDED, HOWEVER, that the omission to so notify such Underwriter shall not
relieve such Underwriter from any liability which such Underwriter may have to
the Company, the Selling Stockholder or any such person or otherwise. The
Company, the Selling Stockholder or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Company, the Selling Stockholder or such person
unless the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to or in conflict
with those available to such Underwriter (in which case such Underwriter shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified
-21-
party or parties, but such Underwriter may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), in any of which events such fees and expenses
shall be borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). No Underwriter shall be
liable for any settlement of any such Proceeding effected without the written
consent of such Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless the Company,
the Selling Stockholder and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at least 30
days' prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 11 or insufficient to hold an indemnified party harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other hand from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Stockholder on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Stockholder on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Selling Stockholder and the
total underwriting discounts and commissions received by the Underwriters, bear
to the aggregate public offering price of the Shares. The relative fault of the
Company and the Selling Stockholder on the one hand and of the Underwriters on
the other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company and/or the
Selling Stockholder or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(d) The Company, the Selling Stockholder and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 11 were determined by pro rata allocation
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(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in subsection (c) above. Notwithstanding the
provisions of this Section 11, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 11 are several in proportion to their respective underwriting
commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 11 and the covenants, warranties and representations of the Company
and the Selling Stockholder contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each
partner, officer or director of such person) who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, its directors or officers, the Selling Stockholder or
any person who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the delivery of the Shares. The Company, the Selling Stockholder
and each Underwriter agree promptly to notify each other of the commencement of
any Proceeding against it and, in the case of the Company or the Selling
Stockholder, against any of the Company's or Selling Stockholder's officers or
directors, as the case may be, in connection with the sale of the Shares, or in
connection with the Registration Statement or the Prospectus.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements
set forth in the last paragraph on the cover page of the Prospectus and the
statements set forth in the fifth, seventh, eighth and tenth paragraphs under
the caption "Underwriting" in the Prospectus constitute the only information
furnished by or on behalf of the Underwriters as such information is referred to
in Sections 3 and 11 hereof.
13. NOTICES. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X.
00000, Attention: General Counsel, and UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx
Xxxx, X.X. 00000-0000, Attention: Syndicate Department, with a copy to Xxxxxx
Xxxxxx & Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, Esq.; if to the Company or the Selling Stockholder, shall be
sufficient in all respects if delivered or sent to the Company at the offices of
the Company at 0000 Xxxxxxxxx Xxxx., Xxxxx 000X, Xxxxxxxxx, Xxxxxxx 00000,
Attention: General Counsel, with a copy to Akerman Senterfitt, Xxx Xxxxxxxxx
Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxx X. XxxXxxxxxxx,
Esq., and Xxxxxxx-Xxxxxx, 0, Xxxxxxxxxx Xxx., 00000 Xxxxxx, Xxxxxx, Attention:
Xx. Xxxxxx Xxxxxxx.
14. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
15. SUBMISSION TO JURISDICTION. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company
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and the Selling Stockholder consent to the jurisdiction of such courts and
personal service with respect thereto. The Company and the Selling Stockholder
irrevocably and unconditionally waive any objection to the laying of venue of
any Claim in any such court, irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any Claim brought in any such court has
been brought in an inconvenient forum. With respect to any Claim or judgment
related thereto, the Company and the Selling Stockholder irrevocably waive, to
the fullest extent permitted by applicable law, all immunity (whether on the
basis of sovereignty or otherwise) from jurisdiction, service of process,
attachment (both before and after judgment) and execution to which it might
otherwise be entitled, and will not raise or claim or cause to be pleaded any
such immunity at or in respect of any Claim or judgment related thereto. The
Company and the Selling Stockholder hereby consent to personal jurisdiction,
service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against the Managing
Underwriters or any indemnified party. Each of the Managing Underwriters, the
Selling Stockholder and the Company (on its behalf and, to the extent permitted
by applicable law, on behalf of its stockholders and affiliates) waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
upon contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company and the Selling Stockholder agree that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by suit
upon such judgment. The Selling Stockholder hereby appoints, without power of
revocation, the Company as its agent to accept and acknowledge on its behalf
service, at the Company's address for notices listed in Section 13, of any and
all process which may be served in any action, proceeding or counterclaim in any
way relating to or arising out of this Agreement.
16. PARTIES AT INTEREST. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters, the Selling
Stockholder and the Company and to the extent provided in Section 11 hereof the
controlling persons, directors and officers referred to in such section, and
their respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
17. COUNTERPARTS. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Underwriters, the Selling Stockholder and the Company and their
successors and assigns and any successor or assign of any substantial portion of
the Company's, the Selling Stockholder's and any of the Underwriters' respective
businesses and/or assets.
19. JUDGMENT CURRENCY. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder into any
currency other than U.S. dollars, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Managing
Underwriters could purchase U.S. dollars with such other currency in the City of
New York on the business day preceding that on which final judgment is given.
The obligations of the Company and the Selling Stockholder in respect of any sum
due from it to the Underwriters shall, notwithstanding any judgment in any
currency other than U.S. dollars, not be discharged until the first business
day, following receipt by the Underwriters of any sum adjudged to be so due in
such other currency, on which (and only to the extent that) the Underwriters may
in accordance with normal banking procedures purchase U.S. dollars with such
other currency; if the U.S. dollars so purchased are less than the sum
originally due to the Underwriters hereunder, the Company and the Selling
Stockholder agree, as a separate obligation and notwithstanding any such
judgment, to indemnify the Underwriters against such loss.
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20. MISCELLANEOUS. UBS, an indirect, wholly owned subsidiary
of UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because UBS is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are
not insured by the Federal Deposit Insurance Corporation, are not guaranteed by
a branch or agency, and are not otherwise an obligation or responsibility of a
branch or agency.
-25-
If the foregoing correctly sets forth the understanding among
the Company, the Selling Stockholder and the Underwriters, please so indicate in
the space provided below for the purpose, whereupon this agreement and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholder and the Underwriters, severally.
Very truly yours,
TECHNICAL OLYMPIC USA, INC.
By:
-----------------------------------
Name:
Title:
TECHNICAL OLYMPIC S.A.,
as the Selling Stockholder
By:
-----------------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written, on
behalf of themselves and the
other several Underwriters
named in Schedule A
CITIGROUP GLOBAL MARKETS INC.
By:
----------------------------
Name:
Title:
UBS SECURITIES LLC
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title
-26-
