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Exhibit 1.1
7,350,000 SHARES
GLOBAL POWER EQUIPMENT GROUP INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
May [ ], 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX XXXXXX INC.
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXXX XXXXX & ASSOCIATES, INC.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Global Power Equipment Group Inc., a Delaware
corporation that will be the surviving corporation of the proposed
Reorganization (as defined below) of GEEG Holdings, L.L.C., a Delaware limited
liability company, and any successor (by merger or otherwise) thereto (Global
Power Equipment Group, Inc., after the Reorganization, and GEEG Holdings,
L.L.C., before the Reorganization, are referred to herein as the "COMPANY"),
proposes to issue and sell to the Underwriters (as defined below) 7,350,000
shares of its Common Stock, par value $0.01 per share ("SECURITIES") (such
7,350,000 shares of Securities being hereinafter referred to as the "FIRM
SECURITIES"). The stockholders listed in Schedule A hereto ("SELLING
STOCKHOLDERS") propose to sell to the Underwriters, at the option of the
Underwriters an aggregate of not more than 1,102,500 outstanding shares of the
Company's Securities, as set forth in Schedule A hereto (such 1,102,500
additional shares being hereinafter referred to as the "OPTIONAL SECURITIES"),
in each case solely to cover overallotments. The Firm Securities and the
Optional Securities are herein collectively called the "OFFERED SECURITIES". As
part of the offering contemplated by this Agreement, Xxxxxxx Xxxxx Barney Inc.
has agreed to reserve out of the Securities set forth opposite its name on
Schedule B hereto, up to [ ] shares, for sale to the Company's directors,
officers, employees and other parties associated with the Company in the United
States (collectively, "PARTICIPANTS"), as set forth in the Prospectus under the
heading "Underwriting" (the "DIRECTED SHARE PROGRAM"). The Securities to be sold
by Xxxxxxx Xxxxx Xxxxxx Inc. pursuant to the Directed Share Program (the
"DIRECTED SHARES") will be sold by Xxxxxxx Xxxxx Barney Inc. pursuant to this
Agreement at the public offering price. Any Directed Shares not orally confirmed
for purchase by any Participants by the open of business on the business day
immediately following the date on which this Agreement is executed will be
offered to the
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public by Xxxxxxx Xxxxx Xxxxxx Inc. as set forth in the Prospectus. The Company
and the Selling Stockholders hereby agree with the several Underwriters named in
Schedule B hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-56832) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933 ("ACT")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "INITIAL REGISTRATION STATEMENT") has been declared effective,
either (A) an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)")
under the Act and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial registration statement
and, if applicable, the additional registration statement or (B) such
an additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has been
filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (A) if the Company has advised the Representatives that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (B) if the Company has advised the Representatives that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any)
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deemed to be a part of the additional registration statement as of its
Effective Time pursuant to Rule 430A(b), is hereinafter referred to as
the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration are hereinafter referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no
such filing is required) as included in a Registration Statement, is
hereinafter referred to as the "PROSPECTUS". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were
made) not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(d) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except for those jurisdiction in which its failure to be
so qualified or to be in good standing would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or other), business, properties, prospects or results of
operations of the Company and its subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
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(iv) Each subsidiary of the Company has been duly incorporated
or formed and is an existing corporation or limited liability company
in good standing under the laws of the jurisdiction of its
incorporation or formation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation or limited liability company in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except for those jurisdictions in which the failure to
be so qualified or to be in good standing would not, individually or in
the aggregate, have a Material Adverse Effect; all of the issued and
outstanding capital stock or equity interests of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid
and nonassessable; and the capital stock or equity interests of each
subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects, except for the pledge
of such capital stock or equity interests under the Company's amended
and restated credit facility as described in the Prospectus.
(v) All outstanding shares of the Company's capital stock have
been duly authorized and validly issued, are fully paid and
nonassessable and conform in all material respects to the description
thereof contained in the Prospectus, and the Offered Securities have
been duly authorized and, when issued and delivered against payment
therefor as provided herein, will be validly issued, fully paid and
nonassessable and will conform in all material respects to the
description thereof contained in the Prospectus; and, at the time of
the Closing (as hereinafter defined), the stockholders of the Company
will have no preemptive rights with respect to the Offered Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Securities have been approved for listing subject
to notice of issuance on The New York Stock Exchange.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement, except such as have been
obtained and made under the Act and such as may be required under the
state securities or blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Offered Securities by the
Underwriters and such other approvals as have been obtained.
(x) The issue and sale of the Offered Securities, the
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated by this Agreement, will
not conflict with, result in a breach or violation of any of the terms
and provisions of, or constitute a default under, or result in the
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to: (i) the
charter or by-laws, or other constituent documents, of the Company or
any of its subsidiaries, (ii) the terms of any indenture,
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contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party
or bound or to which its or their property is subject, except for such
consents which have been obtained under the Company's Senior
Subordinated Loan Agreement dated as of August 1, 2000 as described in
the Prospectus, or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of its or their
properties, or any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, except in the case of clauses (ii) or
(iii) any conflicts, breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them that are material to
the business of the Company and its subsidiaries, taken as a whole, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Prospectus, the Company and its subsidiaries hold any leased real or
personal property material to the conduct of its or their business
under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that could individually or in the aggregate have a Material Adverse
Effect.
(xiv) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or, to the Company's
knowledge, is threatened or imminent, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of
its or its subsidiaries' principal suppliers, contractors or customers,
that could have a Material Adverse Effect whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement
thereto).
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, except where the failure to own or possess or
otherwise be able to acquire such intellectual property would not,
individually or in the aggregate, have a Material Adverse Effect, and
neither the Company nor any of its subsidiaries have received any
notice of infringement of or conflict with asserted rights of others
with respect to any intellectual property rights that could
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or
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human exposure to hazardous or toxic substances (collectively,
"ENVIRONMENTAL LAWS"), owns or operates any real property contaminated
with any substance that is subject to any environmental laws, is liable
for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect;
and the Company is not aware of any pending investigation which might
lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and, to
the Company's knowledge, no such actions, suits or proceedings are
threatened or contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis, the schedules included in each Registration
Statement present fairly the information required to be stated therein
and the assumptions used in preparing the pro forma financial
statements included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(xxi) The Company has not offered, or caused the Underwriters
to offer, Securities to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a customer
or supplier of the Company to alter the customer's or supplier's level
or type of business with the Company, or (ii) a trade journalist or
publication to write or publish favorable information about the Company
or its products.
(xxii) There is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required.
(xxiii) The Company believes that it will not be treated as a
"U.S. real property holding corporation" within the meaning of Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Internal Revenue Code of 1986, as amended.
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(b) Each Selling Stockholder severally and not jointly represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has, and on each applicable
Closing Date hereinafter mentioned will have, valid and unencumbered
title to the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date and full right, power and authority to
enter into this Agreement and to sell, assign, transfer and deliver the
Offered Securities to be delivered by such Selling Stockholder on such
Closing Date hereunder; and upon the delivery of and payment for the
Offered Securities on such Closing Date hereunder, the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by such Selling Stockholder on such Closing
Date.
(ii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with this
offering.
(iii) Such Selling Stockholder is the record and beneficial
owner of the Offered Securities to be sold by it hereunder free and
clear of all liens, encumbrances, equities and claims, and, assuming
that each Underwriter (a) is a purchaser in good faith and acquires its
interest in the Offered Securities it has purchased from such Selling
Stockholder without notice of any adverse claim (within the meaning of
Section 8-105 of the New York Uniform Commercial Code ("NYUCC")), (b)
has purchased such Offered Securities delivered on the Optional Closing
Date (as defined below) to The Depository Trust Company or other
securities intermediary by making payment therefor as provided herein,
and (c) has had such Offered Securities credited to the securities
account or accounts of such Underwriter maintained with The Depository
Trust Company or such other securities intermediary, such Underwriter
will have acquired a security entitlement (within the meaning of
Section 8-102(a)(17) of the NYUCC) to such Offered Securities purchased
by such Underwriter.
(iv) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Offered
Securities.
(v) Prior to the First Closing Date, such Selling
Stockholder's Offered Securities shall have been placed in custody, for
delivery pursuant to the terms of this Agreement, under a Custody
Agreement and Power of Attorney duly authorized (if applicable),
executed and delivered by such Selling Stockholder, in the form
heretofore furnished to you (the "CUSTODY AGREEMENT") with EquiServe
Trust Company, N.A., as Custodian (the "CUSTODIAN"); the Offered
Securities so held in custody for each Selling Stockholder shall be
subject to the interests hereunder of the Underwriters; the
arrangements for custody and delivery of such Offered Securities, made
by such Selling Stockholder hereunder and under the Custody Agreement,
are to that extent irrevocable, and are not subject to termination by
any acts of such Selling Stockholder, or by operation of law, whether
by the death or incapacity of such Selling Stockholder or, in the case
of a trust, by the death or incapacity of any trustee or trustees or
the termination of such trust, or the occurrence of any other event;
and if any such death, incapacity, termination or any other such event
shall occur before the delivery of such Securities hereunder, such
Offered Securities will be delivered by the Custodian in accordance
with the terms and conditions of this Agreement and the Custody
Agreement as if such death, incapacity, termination or other event had
not occurred, regardless of whether or not the Custodian shall have
received notice of such death, incapacity, termination or other event.
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(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated by this Agreement,
except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Offered Securities by the
Underwriters and such other approvals as have been obtained.
(vii) Neither the sale of the Offered Securities being sold by
such Selling Stockholder nor the consummation of any other of the
transactions contemplated by this Agreement by such Selling Stockholder
or the fulfillment of the terms hereof by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or, in the case of a Selling Stockholder that is
not a natural person, the charter or by-laws or constituent documents
of such Selling Stockholder, or the terms of any indenture or other
agreement or instrument to which such Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder or any of
its subsidiaries;
(viii) The information relating to such Selling Stockholder
provided to the Company by such Selling Stockholder as described in
Section 7(c) is true and correct in all material respects;
(ix) In the case of Harvest Partners III, LP, (i) such Selling
Stockholder has reviewed the Registration Statement and the
representations and warranties of the Company contained in this Section
2 and has no reason to believe that such representations and warranties
are not true and correct and (ii) the sale of Offered Securities by
such Selling Stockholder pursuant hereto is not prompted by any
information concerning the Company or any of its subsidiaries which is
not set forth in the Prospectus or any supplement thereto.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company at a purchase price of $[ ] per share, the respective numbers
of shares of Firm Securities set forth opposite the names of the Underwriters in
Schedule B hereto.
The Company will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Representatives drawn to the order of Global
Power Equipment Group Inc., at the office of Cravath, Swaine & Xxxxx, at 10:00
A.M., New York time, on [ ], 2001, or at such other time not later than seven
full business days thereafter as the Representatives and the Company determine,
such time being herein referred to as the "FIRST CLOSING DATE". For purposes of
Rule 15c6-1 under the Securities Exchange Act of 1934, the First Closing Date
(if later than the otherwise applicable settlement date) shall be the settlement
date for payment of funds and delivery of securities for all the Offered
Securities sold pursuant to the offering.
In addition, upon written notice from the Representatives given to the
Company and the Selling Stockholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional Securities at the purchase price per Security to
be paid for the Firm Securities. The Selling Stockholders agree, severally and
not jointly, to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified
in such notice by a fraction the numerator of which is the number of shares set
forth opposite the names of such Selling Stockholders in Schedule A hereto under
the caption "Number of Optional Securities to be Sold" and the denominator of
which is the total number of Optional Securities
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(subject to adjustment by the Representatives to eliminate fractions). Such
Optional Securities shall be purchased from each Selling Stockholder for the
account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of Firm Securities (subject to adjustment by the Representatives to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by the Representatives to the
Company and the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not earlier than two business days preceding
(except in the case of the First Closing Date), and not later than five full
business days after, written notice of election to purchase Optional Securities
is given. The Custodian will deliver the Optional Securities being purchased on
each Optional Closing Date to the Representatives for the accounts of the
several Underwriters, at the office of Cravath, Swaine & Xxxxx, against payment
of the purchase price therefor in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of the Custodian, at the above office of
Cravath, Swaine & Xxxxx.
Delivery of the Firm Securities and the Optional Securities shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The Company will
advise the Representatives promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the
Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, on or prior to the time
the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
the Representatives.
(b) The Company will advise the Representatives promptly of
any intent to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect such amendment or
supplementation without the Representatives' consent; and the Company
will also advise the Representatives promptly of the effectiveness of
each
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Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (three of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives may
reasonably request. The Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of
the Initial Registration Statement or such later date as shall have
been consented to by the Representatives. All other such documents
shall be so furnished as soon as available. The Company and the Selling
Stockholders will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representatives reasonably designate and will continue such
qualifications in effect so long as required for the distribution of
the Offered Securities; provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to execute a general consent to service of process in any
jurisdiction where it is not now so subject.
(g) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose, except as required by
law, the intention to
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make any such offer, sale, pledge, disposition or filing, without the
prior written consent of Credit Suisse First Boston Corporation and
Xxxxxxx Xxxxx Barney Inc., except issuances of Securities pursuant to
the conversion or exchange of convertible or exchangeable securities or
the exercise of warrants or options, in each case outstanding on the
date hereof, grants of employee stock options pursuant to the terms of
a plan in effect on the date hereof, or issuances of Securities
pursuant to the exercise of such options.
(h) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and each Selling Stockholder, as the case
may be, under this Agreement, for any filing fees and other expenses
(including reasonable fees and disbursements of counsel) in connection
with qualification of the Offered Securities for sale under the laws of
such jurisdictions as the Representatives reasonably designate and the
printing of memoranda relating thereto, for the filing fee incident to
the review by the National Association of Securities Dealers, Inc. of
the Offered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters. The Company
and each Selling Stockholder will pay all applicable transfer taxes, if
any, involved in the transfer to the several Underwriters of the
Offered Securities to be purchased by them from the Company or such
Selling Stockholder, as applicable, and the respective Underwriters
will pay any additional stock transfer taxes involved in future
transfers.
(i) Each Selling Stockholder agrees, for a period of 180 days
after the date of the initial public offering of the Offered
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose, except as required by law, the intention to make any such
offer, sale, pledge or disposition, or enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior
written consent of Credit Suisse First Boston Corporation and Xxxxxxx
Xxxxx Xxxxxx Inc. Any Securities received (A) upon exercise of options
granted to the undersigned or (B) in connection with the Reorganization
will also be subject to this clause (i). Any Securities acquired by the
undersigned in the open market or in the Directed Share Program will
not be subject to this clause (i). Notwithstanding anything herein to
the contrary, in the case of a Management Stockholder (as identified on
the signature page hereto), a transfer of Securities to a family member
or trust, partnership or other entity established solely for the
benefit of such Management Stockholder or family members thereof, a
bona fide gift, or a bona fide pledge, may be made, in each case
provided the transferee agrees to be bound in writing by the terms of
this clause (i).
(j) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the National Association of Securities Dealers, Inc. (the
"NASD") or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. Xxxxxxx Xxxxx Barney Inc.
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the removal of such transfer
restrictions upon the expiration of such period of time.
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(k) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the Underwriters in connection with the Directed Share
Program.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the written statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), in form and substance satisfactory to the Representatives, of
Xxxxxx Xxxxxxxx LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules audited by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements as of and
for the three month periods ended March 31, 2001 and March 25,
2000 included in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, inquiries of officials of the Company who
have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention
that caused them to believe that:
(A) the unaudited financial statements as of
and for the three-month periods ended March 31, 2001
and March 25, 2000 included in the Registration
Statements do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements for them
to be in conformity with generally accepted
accounting principles;
(B) the unaudited consolidated revenues,
operating income, net income and net income per
common unit amounts for the three-month periods ended
March 31, 2001 and March 25, 2000 included in the
Prospectus do not agree with the amounts set forth in
the unaudited consolidated financial statements for
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those same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited statements of
income;
(C) at the date of the latest available
consolidated balance sheet read by such accountants,
or at a subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the members' units or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, or at a subsequent
specified date not more than three business days
prior to the date of this Agreement, there was any
decrease in consolidated net current assets or net
assets, as compared with amounts shown on the latest
consolidated balance sheet included in the
Prospectus; or
(D) for the period from the closing date of
the latest consolidated statement of income included
in the Prospectus to the closing date of the latest
available statement of income read by such
accountants, or at a subsequent specified date not
more than three business days prior to the date of
this Agreement, there were any decreases, as compared
with the corresponding period of the previous year
and with the period of corresponding length ended the
date of the statement of income included in the
Prospectus, in consolidated revenues or operating
income or in the total or per common unit amounts of
consolidated income before extraordinary items or net
income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter;
(iv) on the basis of a reading of the unaudited pro
forma condensed consolidated financial statements included in
the Registration Statement and the Prospectus (the "PRO FORMA
FINANCIAL STATEMENTS"); carrying out certain specified
procedures; inquiries of certain officials of the Company and
CFI Holdings, Inc. who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the Pro Forma Financial Statements, nothing came to
their attention which caused them to believe that the Pro
Forma Financial statements do not comply as to form in all
material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements; and
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
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For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statements is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post- effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statements is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post- effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by the Representatives. If the Effective Time of
the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by the Representatives. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Representatives, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole which, in the
judgment of the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities or preferred stock
of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act),
or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of the Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of White & Case LLP, counsel for the Company, to the
effect that:
(i) The Company is duly organized and the Company and
each of its "significant subsidiaries," as defined in Rule
1-02(w) of Regulation S-X, is validly existing and in
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good standing under the laws of the jurisdiction in which it
is organized, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company and each such significant
subsidiary is duly qualified to do business and is in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification;
(ii) The Offered Securities delivered on such Closing
Date and all other outstanding shares of the Common Stock of
the Company have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the
Securities;
(iii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings known to such
counsel between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(iv) No consent, approval, authorization or order of,
or filing with, any New York State or U.S. Federal
governmental agency or body or any New York State or U.S.
Federal court or under the Delaware General Corporations Law
(the "DGCL") is required to be obtained or made by the Company
for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under
the Act and such as may be required under the state securities
laws or blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Offered Securities by the
Underwriters (as to which such counsel need express no
opinion) and such other approvals as have been obtained;
(v) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein or
therein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, the DGCL or any New York State or U.S. Federal statute,
rule, regulation or, to the knowledge of such counsel, order
of any New York State or U.S. Federal governmental agency or
body, or any New York State or U.S. Federal court having
jurisdiction over the Company or any subsidiary of the Company
or any of their material properties, or any agreement or
instrument listed as an exhibit to any Registration Statement
to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws or other constituent
documents of the Company or any such subsidiary;
(vi) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such
counsel, no stop order suspending the effectiveness of a
Registration Statement or any
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part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated
under the Act;
(vii) Each Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in
all material respects with the requirements of the Act and the
Rules and Regulations; nothing has come to such counsel's
attention which causes such counsel to believe that the
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus,
and each amendment or supplement thereto, in the light of the
circumstances under which they were made) not misleading; or
that the Prospectus or any amendment or supplement thereto, as
of its issue date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein (in the case of the Prospectus, and each amendment or
supplement thereto, in the light of the circumstances under
which they were made) not misleading;
(viii) The descriptions in the Registration
Statements and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents under the
captions "Description of Capital Stock," "Legal Matters,"
"Management," "Certain Transactions" and "Certain United
States Federal Tax Considerations for Non-United States
Holders of Common Stock" insofar as such descriptions
constitute a summary of the legal documents, matters or
proceedings referred to therein fairly summarize in all
material respects the information called for with respect to
such legal documents, matters and proceedings; and such
counsel does not know of any legal or governmental proceedings
to which the Company or any of its subsidiaries is a party or
to which any of their respective properties is subject which
is required to be described in a Registration Statement or the
Prospectus which are not described as required or of any
contracts or documents of a character required to be described
in a Registration Statement or the Prospectus or to be filed
as exhibits to a Registration Statement which are not
described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements
or schedules or other financial data, and statistical data
covered by the letter referred to in Section 6(a), contained
in or omitted from the Registration Statements or the
Prospectus; and
(ix) This Agreement has been duly authorized,
executed and delivered by the Company.
(e) The Representatives shall have received the opinion
contemplated in the Power of Attorney executed and delivered by each
Selling Stockholder and an opinion, dated on each Optional Closing
Date, of the respective counsel for each of the Selling Stockholders,
to the effect that:
(i) Such Selling Stockholder had full right, power
and authority to sell, assign, transfer and deliver the
Offered Securities delivered by such Selling Stockholder on
such Closing Date hereunder; and, assuming that each
Underwriter (a) is a purchaser in good faith and acquires its
interest in the Offered Securities it has purchased from such
Selling Stockholder without notice of any adverse claim
(within the meaning of Section 8-105 of the NYUCC), (b) has
purchased such Offered Securities delivered to The Depository
Trust Company or other securities intermediary by making
payment therefor and (c) has had such Offered Securities
credited to the securities account or accounts of such
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Underwriter maintained with The Depository Trust Company or
such other securities intermediary, such Underwriter will have
acquired a security entitlement (within the meaning of Section
8-102(a)(17) of the NYUCC) to such Offered Securities
purchased by such Underwriter;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by such Selling Stockholder
for the consummation of the transactions contemplated by the
Custody Agreement or this Agreement in connection with the
sale of the Offered Securities sold by such Selling
Stockholder, except such as have been obtained and made under
the Act and such as may be required under the state securities
laws or blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Offered Securities by the
Underwriters (as to which no opinion need be expressed) and
such other approvals as have been obtained;
(iii) The execution, delivery and performance by such
Selling Stockholder of the Custody Agreement and this
Agreement and the consummation by such Selling Stockholder of
the transactions therein and herein contemplated will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute,
rule, regulation or, to the knowledge of such counsel, order
of any governmental agency or body applicable to such Selling
Stockholder or any court having jurisdiction over such Selling
Stockholder or any of their properties or any material
agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to
which any of the material properties of such Selling
Stockholder is subject (other than breaches or violations of
agreements or instruments which would not prevent, impede or
delay the consummation of the transactions contemplated by the
Custody Agreement or this Agreement), or in the case of a
Selling Stockholder that is not a natural person, the charter
or by-laws or other organizational documents of such Selling
Stockholder;
(iv) The Power of Attorney and related Custody
Agreement with respect to such Selling Stockholder has been
duly authorized, executed and delivered by such Selling
Stockholder and constitute valid and binding obligations of
such Selling Stockholder enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and
(v) This Agreement has been duly authorized, executed
and delivered by such Selling Stockholder.
(f) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statements, the Prospectus and other
related matters as the Representatives may require, and the Selling
Stockholders and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(g) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to their knowledge after reasonable investigation, shall
state that: the representations and warranties of the Company in this
Agreement are true and correct; the
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Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge, threatened
by the Commission; the Additional Registration Statement (if any)
satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b)
was filed pursuant to Rule 462(b), including payment of the applicable
filing fee in accordance with Rule 111(a) or (b) under the Act, prior
to the time the Prospectus was printed and distributed to any
Underwriter; and, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated
such Closing Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three days
prior to such Closing Date for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the
Representatives shall have received a lockup letter, in the form
previously agreed upon by the Company and the Representatives, from
each executive officer, director and equityholder of the Company, and
from each person or entity that will be an executive officer, director
or stockholder of the Company following the Reorganization.
(j) The Custodian shall have agreed to deliver to the
Representatives, on the first Optional Closing Date, a letter stating
that they will deliver to each Selling Stockholder a United States
Treasury Department Form 1099 (or other applicable form or statement
specified by the United States Treasury Department regulations in lieu
thereof) on or before January 31 of the year following the date of this
Agreement.
(k) The Company shall have received a written opinion (the
"TAX OPINION"), dated such Closing Date, of White & Case LLP, counsel
for the Company, to the effect that (i) the Reorganization will be
treated for federal income tax purposes as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended, and (ii) (A) the Reorganization, (B) the Preferred
Distribution, (C) the Tax Distribution, (D) the Offering and (E) the
Other Transactions will not trigger any income or gain to the Company.
The Tax Opinion shall (i) be based upon representation letters from the
Company, GEEG Acquisition Holdings Corp. ("GAHC") and GEEG Acquisition
Holdings LLC ("GAHLLC") and (ii) take into account the effect of (A)
the Reorganization, (B) the Preferred Distribution, (C) the Tax
Distribution, (D) the Offering, and (E) the Other Transactions. For
purposes of this Agreement:
(i) The "REORGANIZATION" means (x)(A) the
contribution by GAHC of substantially all of its assets,
consisting of preferred and common membership units of GEEG
Holdings LLC ("GHLLC"), to the Company (B) in exchange for
shares of common voting stock in the Company (the steps taken
in the preceding clauses (A) and (B) together constituting the
"TRANSFER"), followed by (y) the distribution by GAHC of such
Company common voting stock to GAHC's shareholders in complete
liquidation;
(ii) The "PREFERRED DISTRIBUTION" means the payment,
in cash, of the distribution declared prior to the
Reorganization by GHLLC to the holders of its preferred units
of an amount equal to the accrued and unpaid return on the
preferred capital of GHLLC;
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(iii) The "OTHER TRANSACTIONS" means (w) the
contribution by GAHLLC and other members of GHLLC other than
GAHC of their preferred and common membership units of GHLLC
to the Company in exchange solely for shares of common voting
stock in the Company, (x) the distribution by GAHLLC of the
Company common voting stock to its members in complete
liquidation, (y) the merger of GEEG LLC with and into GHLLC
and (z) the merger of GHLLC with and into the Company;
(iv) The "TAX DISTRIBUTION" means the payment, in
cash, of the distribution declared prior to the Reorganization
by GHLLC to its members on account of their remaining fiscal
year 2001 tax liability resulting from the members' ownership
of preferred and/or common units of GHLLC; and
(v) The "OFFERING" means the issuance and sale of the
Firm Securities to the Underwriters.
(l) A principal accounting or financial officer of GAHC shall
have delivered a representation letter to the Company to the effect
that, after the Transfer, GAHC will retain sufficient assets to pay,
and will pay, all tax liabilities that it has accrued through the date
of the Reorganization, including any tax imposed with respect to the
Preferred Distribution or the Tax Distribution.
(m) The Reorganization and the Other Transactions shall have
been consummated.
The Company and the Selling Stockholders will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Selling Stockholder and each Underwriter, their partners,
directors and officers and each person, if any who controls such Underwriter or
Selling Stockholder within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, in
the light of the circumstances under which they were made) not misleading, and
will reimburse each Underwriter and each Selling Stockholder for any legal or
other expenses reasonably incurred by such Underwriter or Selling Stockholder in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (d) below; provided further, that with respect to any untrue
statement or omission of material fact made in any preliminary prospectus, the
indemnity agreement contained in this Section 7(a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased the securities concerned, to the extent that any
such loss, claim, damage or liability of such
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Underwriter occurs under the circumstance where it shall have been determined by
a court of competent jurisdiction by final and nonappealable judgment that (w)
the Company had previously furnished copies of the Prospectus to the
Representatives, (x) delivery of the Prospectus was required by the Act to be
made to such person, (y) the untrue statement or omission of a material fact
contained in the preliminary prospectus was corrected in the Prospectus and (z)
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of the
Prospectus; and provided further, that the Company will not be liable to any
Selling Stockholder, its partners, directors and officers and each person, if
any who controls such Selling Stockholder in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder specifically
for use therein, it being understood and agreed that the only such information
furnished by any Selling Stockholder consists of the information described as
such in subsection (c) below.
(b) The Company agrees to indemnify and hold harmless Xxxxxxx Xxxxx
Barney Inc., the directors, officers, employees and agents of Xxxxxxx Xxxxx
Xxxxxx Inc. and each person who controls Xxxxxxx Xxxxx Barney Inc. within the
meaning of either the Act or the Exchange Act ("XXXXXXX XXXXX XXXXXX INC.
ENTITIES"), from and against any and all losses, claims, damages and liabilities
to which they may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim), insofar
as such losses, claims damages or liabilities (or actions in respect thereof)
(i) are caused by the failure of any Participant to pay for and accept delivery
of the securities which immediately following the Effective Date of the Initial
Registration Statement were subject to a properly confirmed agreement to
purchase; or (ii) relate to, arise out of, or occur in connection with the
Directed Share Program, provided that, in the case of clause (ii) the Company
will not be liable to the extent that such loss, claim, damage or liability
results from the gross negligence or willful misconduct of Xxxxxxx Xxxxx Xxxxxx
Inc.
(c) Each Selling Stockholder, severally and not jointly, will indemnify
and hold harmless the Company, its directors and officers and each person who
controls the Company within the meaning of Section 15 of the Act, and each
Underwriter, its partners, directors and officers and each person who controls
such Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which the Company
or such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, in the light of the
circumstances under which they were made) not misleading, and will reimburse the
Company and each Underwriter for any legal or other expenses reasonably incurred
by the Company or such Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Stockholders will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by an Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (d) below; provided further,
that with respect to any untrue statement or omission of material fact made in
any preliminary prospectus, the indemnity agreement contained in this Section
7(c) shall not inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the securities
concerned, to the extent that any such loss, claim, damage or liability of such
Underwriter occurs
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under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in the
preliminary prospectus was corrected in the Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus; and provided
further, that such Selling Stockholder shall only be subject to liability under
this subsection to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission is based upon information provided by
such Selling Stockholder for use in the documents referred to above, it being
understood and agreed that the only such information furnished by any Selling
Stockholder consists of the name, address and share ownership of such Selling
Stockholder and the other information with respect to such Selling Stockholder
set forth under the caption "Principal and Selling Stockholders" and the
information contained in the representations and warranties given by such
Selling Stockholder in this Agreement and the Custody Agreement.
(d) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder, against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, in
the light of the circumstances under which they were made) not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company and
each Selling Stockholder in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures appearing in
the fourth paragraph, the information contained in the second sentence of the
tenth paragraph, the twelfth paragraph, the thirteenth paragraph and the eighth
sentence of the fourteenth paragraph, in each case under the caption
"Underwriting".
(e) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b), (c), (d) or (h) of this Section 7, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under subsection (a), (b), (c), (d) or (h)
of this Section 7. In case any such action is brought against any indemnified
party and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
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indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party. Notwithstanding anything contained herein to the contrary, if
indemnity may be sought pursuant to Section 7(b) hereof in respect of such
action or proceeding, then in addition to such separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local counsel)
for Xxxxxxx Xxxxx Xxxxxx Inc., the directors, officers, employees and agents of
Xxxxxxx Xxxxx Barney Inc., and all persons, if any, who control Xxxxxxx Xxxxx
Xxxxxx Inc. within the meaning of either the Act or the Exchange Act for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program.
(f) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b),
(c), (d) or (h) of this Section 7, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b), (c),
(d) or (h) of this Section 7 (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters. Benefits received by Xxxxxxx Xxxxx Barney Inc. (the
"INDEPENDENT UNDERWRITER") in its capacity as "qualified independent
underwriter" shall be deemed to be equal to the compensation received by the
Independent Underwriter for acting in such capacity. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (f) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (f).
Notwithstanding the provisions of this subsection (f), (i) no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) the
Independent Underwriter in its capacity as "qualified independent underwriter"
(within the meaning of NASD Conduct Rule 2720) shall not be responsible for any
amount in excess of the compensation received by the Independent Underwriter for
acting in such capacity. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (f) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(g) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter (as
hereinafter defined) within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall
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extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
(h) Without limitation of and in addition to its obligations under the
other paragraphs of this Section 7, the Company agrees to indemnify and hold
harmless the Independent Underwriter, its directors, officers, employees and
agents and each person who controls the Independent Underwriter within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject, insofar as such losses, claims, damages or liabilities (or
action in respect thereof) arise solely out of or are based solely upon the
Independent Underwriter's acting as a "qualified independent underwriter"
(within the meaning of NASD Conduct Rule 2720) in connection with the offering
contemplated by this Agreement, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
results from the gross negligence or willful misconduct of the Independent
Underwriter.
(i) The liability of each Selling Stockholder under such Selling
Stockholder's indemnity and contribution agreements contained in this Section 7
shall be limited to an amount equal to the initial public offering price of the
Securities sold by such Selling Stockholder to the Underwriters. The Company and
the Selling Stockholders may agree, as among themselves and without limiting the
rights of the Underwriters under this Agreement, as to the respective amounts of
such liability for which they each shall be responsible.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, the Representatives
may make arrangements satisfactory to the Company and the Selling Stockholders
for the purchase of such Offered Securities by other persons, including any of
the Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total number of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the
Representatives, the Company and the Selling Stockholders for the purchase of
such Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered
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Securities by the Underwriters is not consummated, the Company and the Selling
Stockholders shall remain responsible for the expenses to be paid or reimbursed
by them pursuant to Section 5 and the respective obligations of the Company, the
Selling Stockholders, and the Underwriters pursuant to Section 7 shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities and the Company and the Selling Stockholders
shall have no further liability hereunder except as provided in Sections 5(i)
and 8.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telecopied and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group, and Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: General Counsel or, if sent to the Company, will be mailed, delivered
or telecopied and confirmed to it at Global Power Equipment Group Inc., 0000
Xxxxx Xxxx, Xxxxx 0000, Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx, or, if
sent to the Selling Stockholders or any of them, will be mailed, delivered or
telecopied and confirmed to Xxxxx Xxxxxxx, Global Power Equipment Group Inc.,
0000 Xxxxx Xxxx, Xxxxx 0000, Xxxxx, Xxxxxxxx 00000 and Xxxxxxx Xxxxxxxxxx,
Harvest Partners III, LP, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telecopied and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives, or by Credit
Suisse First Boston Corporation and Xxxxxxx Xxxxx Xxxxxx Inc. acting together on
behalf of the Representatives, will be binding upon all the Underwriters. Xxxxx
Xxxxxxx and Xxxxxxx Xxxxxxxxxx will act for the Selling Stockholders in
connection with such transactions, and any action under or in respect of this
Agreement taken by Xxxxx Xxxxxxx or Xxxxxxx Xxxxxxxxxx will be binding upon all
the Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
GLOBAL POWER EQUIPMENT GROUP INC.
By:
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: President and Chief Executive Officer
GEEG HOLDINGS, L.L.C.
By:
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
MANAGEMENT STOCKHOLDERS:
XXXX XXXXXX
XXXXXX XXXXXX
XXXX XXXXXXXX
TIKE XXXX
XXXXX XXXX
XXXXX XXXXXX
XXXX XXXXXXXXX
XXXXX XXXXXXX
XXXXXXX XXXXXXX
XXXX XXXXXXXXXX
XXXX XXXXXXXXXXXX
BENGT SOHLEN
XXXXX XXXXXX
OTHER STOCKHOLDERS:
HARVEST PARTNERS III, LP
HARVEST PARTNERS III, GBR
SMC POWER HOLDINGS, L.L.C.
SAW MILL INVESTMENTS, L.L.C.
Q.P.O.N BETEILIGUNGS GMBH
PPM AMERICA PRIVATE EQUITY FUND, X.X
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION
DLJ CAPITAL PARTNERS V, LLC
DLJ ESC II, L.P.
DLJ INVESTMENT FUNDING II, INC.
DLJ INVESTMENT PARTNERS, L.P.
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DLJ INVESTMENT PARTNERS II, L.P.
BT INVESTMENT PARTNERS, INC.
GOLDENTREE ASSET MANAGEMENT, L.P.,
AS AGENT FOR DEUTSCHE BANK SHARPS
XXXXXX INC.
NATIONAL CITY EQUITY PARTNERS, INC.
GREAT LAKES CAPITAL INVESTMENTS II, LLC
XXXXXX FINANCIAL, INC.
BANCBOSTON CAPITAL INC.
LIBERTY MUTUAL INSURANCE COMPANY
X.X. XXXXXXX MARKET VALUE FUND, L.P.
HIGHLAND LEGACY LIMITED
MAGNETITE ASSET INVESTORS, L.L.C.
GOLDENTREE HIGH YIELD MASTER FUND, LTD.
GOLDENTREE ASSET MANAGEMENT, L.P., AS AGENT
FOR HIGHBRIDGE CAPITAL MANAGEMENT,
L.L.C.
NORSE CBO, LTD.
REGIMENT CAPITAL, LTD.
ARES LEVERAGED INVESTMENT FUND, L.P.
ARES LEVERAGED INVESTMENT FUND II, L.P.
CASCADE INVESTMENTS PARTNERS, L.L.C.
PARIBAS PRINCIPAL INC.
INDOSUEZ GEEG PARTNERS
XXXXXXX X. XXXXXXXX
By:
-------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Attorney-in-Fact for the Management
Stockholders and the Other Stockholders
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The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX XXXXXX INC.
Acting on behalf of themselves and as the Representatives of the
several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By:
--------------------------------------------------
Name:
Title:
By XXXXXXX XXXXX BARNEY INC.
By:
--------------------------------------------------
Name:
Title:
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SCHEDULE A
NUMBER OF OPTIONAL
SELLING STOCKHOLDER SECURITIES TO BE SOLD
------------------- ---------------------
Harvest Partners III, LP [356,663]
Harvest Partners III, GbR [48,636]
SMC Power Holdings L.L.C. [26,761]
Saw Mill Investments, L.L.C. [28,777]
Q.P.O.N Beteiligungs GmbH [56,702]
PPM America Private Equity Fund, L.P. [147,919]
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation [41,082]
DLJ Capital Partners V, LLC [17,159]
DLJ ESC II, L.P. [2,724]
DLJ Investment Funding II, Inc. [1,167]
DLJ Investment Partners, L.P. [5,484]
DLJ Investment Partners II, L.P. [12,341]
BT Investment Partners, Inc. [39,445]
Goldentree Asset Management, L.P., as Agent for Deutsche Bank Sharps Xxxxxx Inc. [535]
National City Equity Partners, Inc. [18,021]
Great Lakes Capital Investments II, LLC [3,180]
Xxxxxx Financial, Inc. [14,792]
BancBoston Capital Inc. [39,445]
Liberty Mutual Insurance Company [49,306]
X.X. Xxxxxxx Market Value Fund, L.P. [2,413]
Highland Legacy Limited [1,609]
Magnetite Asset Investors, L.L.C. [6,032]
Goldentree High Yield Master Fund, Ltd. [804]
Goldentree Asset Management, L.P., as Agent for Highbridge Capital Management,
L.L.C. [1,074]
GSC Partners CDO Fund, Limited [4,021]
Norse CBO, Ltd. [805]
Regiment Capital, Ltd. [805]
Ares Leveraged Investment Fund, L.P. [3,016]
Ares Leveraged Investment Fund II, L.P. [3,016]
Cascade Investments Partners, L.L.C. [8,875]
Paribas Principal Inc. [16,608]
Indosuez GEEG Partners [14,394]
Xxxx Xxxxxx [5,069]
Xxxxxx Xxxxxx [4,947]
Xxxx Xxxxxxxx [5,008]
Tike Xxxx [4,838]
Xxxxx Xxxx [5,391]
Xxxxx Xxxxxx [5,239]
Xxxx XxXxxxxxx [19,723]
Xxxxxxx X. Xxxxxxxx [3,197]
Xxxxx Xxxxxxx [22,045]
Xxxxxxx Xxxxxxx [8,908]
Xxxx Xxxxxxxxxx [17,135]
Xxxx Xxxxxxxxxxxx [16,344]
Bengt Sohlen [1,000]
Xxxxx Xxxxxx [7,632]
--------------
Total.................................................................. 1,102,500
==============
28
29
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston Corporation.......................
Xxxxxxx Xxxxx Barney Inc.....................................
Deutsche Banc Alex. Xxxxx Inc................................
Xxxxxxx Xxxxx & Associates, Inc..............................
---------------
Total............................................... 7,350,000
===============
29
