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EXHIBIT 1.1
AFFILIATED MANAGERS GROUP, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
, 1997
Xxxxxxx, Xxxxx & Co.,
BT Alex. Xxxxx Incorporated,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxxxx & Co. Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Affiliated Managers Group, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 5,600,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 840,000 additional shares (the "Optional Shares") of Common
Stock, par value $.01 per share ("Stock"), of the Company (the Firm Shares and
the Optional Shares that the Underwriters elect to purchase pursuant to Section
2 hereof being collectively called the "Shares").
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of up to a total of 1,400,000
shares of Stock (the "International Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters outside the United
States (the "International Underwriters"), for whom Xxxxxxx Sachs International,
BT Alex. Xxxxx International (a division of Bankers Trust International PLC),
Xxxxxxx Xxxxx International and J. Xxxxx Xxxxxxxx & Co. Limited are acting as
lead managers. Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the International Underwriting
Agreement are hereby expressly made conditional on one another. The Underwriters
hereunder and the International Underwriters are simultaneously entering into an
Agreement between U.S. and International Underwriting Syndicates (the "Agreement
between Syndicates") which provides, among other things, for the transfer of
shares of Stock between the two syndicates. Two forms of prospectus are to be
used in connection with the offering and sale of shares of Stock contemplated by
the foregoing, one relating to the Shares hereunder and the other relating to
the International Shares. The latter form of prospectus will be identical to the
former except for certain substitute
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pages or other differences that you have approved, in the case of any
preliminary prospectus used before this Agreement is executed, or that you
hereafter approve, in the case of any prospectus, or any supplement or amendment
thereto used after the execution of this Agreement. Except as used in Sections
2, 3, 4, 9 and 11 herein, and except as the context may otherwise require,
references hereinafter to the Shares shall include all the shares of Stock which
may be sold pursuant to either this Agreement or the International Underwriting
Agreement, and references herein to any prospectus whether in preliminary or
final form (including the Preliminary Prospectus and Prospectus as defined
below), and whether as amended or supplemented, shall include both the U.S. and
the international versions thereof. As used in this Agreement and the
International Underwriting Agreement, the term "subsidiaries" of any person
shall mean each entity, whether in corporate, partnership or other form, that is
controlled, directly or indirectly, by such person or in which such person,
directly or indirectly, holds at least a 30% equity interest, including, in the
case of subsidiaries of the Company, each of the investment advisory and other
entities (together with their respective subsidiaries) referred to as
"Affiliates" in the Registration Statement (as defined below and as it may be
amended).
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-34679) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is hereinafter called
a "Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the
Act to be part of the Initial Registration Statement at the time it was declared
effective or such part of the Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective, each as amended at the time such part of the
registration statement became effective, is hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus";
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that
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this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein;
(c) The Registration Statement conforms, and the Prospectus (excluding the
international version thereof) and any further amendments or supplements to the
Registration Statement or the Prospectus (excluding the international version
thereof) will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and the Registration
Statement, the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included in the Prospectus
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, in each case affecting
its properties, assets or operations, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any change in the capital stock (other than changes resulting from the
exercise of stock options or warrants or conversion of preferred stock after
June 30, 1997 and prior to the Time of Delivery) or any increase in the
long-term debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the business affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) Neither the Company nor any of its subsidiaries owns any real
property; the Company and its subsidiaries have good title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do not
materially affect the value of the property of the Company or subsidiary, as
applicable, and do not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus, and has been duly qualified as a foreign
corporation to do business and is in good standing as a foreign corporation in
each jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, with such exceptions individually or in the
aggregate as would not have a material adverse effect on the business affairs,
management, financial position, stockholders' equity or
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results of operation of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect"); and each subsidiary of the Company has been duly
organized or formed and is validly existing as a corporation, limited
partnership, limited liability company or general partnership, as the case may
be, under the laws of its jurisdiction of organization and each such subsidiary
that is a corporation, limited partnership or limited liability company is in
good standing under the laws of its jurisdiction of organization;
(g) The Company has an authorized capitalization as set forth in the
Prospectus; upon consummation of the transactions contemplated by this Agreement
and the International Underwriting Agreement, the Company will have the
authorized capitalization as set forth in the Prospectus; all of the issued
shares of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the description of the
Stock contained in the Prospectus; and all of the issued shares of capital stock
of each subsidiary of the Company which is a corporation have been duly
authorized and validly issued, and are fully paid and non-assessable, and
(except for directors' qualifying shares and as described generally in the
Registration Statement) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims. All of the partnership
interests, membership interests and shares of beneficial interest of each
subsidiary of the Company which is a partnership, limited liability company or
Massachusetts business trust have been validly issued in accordance with
applicable law and the partnership agreement, limited liability agreement or
declaration of trust, as applicable, of such subsidiary, and (except for
directors' qualifying shares and as described generally in the Registration
Statement) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(h) The Shares to be sold by the Company to the Underwriters hereunder
will be newly issued, have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and validly
issued and fully paid and non-assessable and will conform to the description of
the Stock contained in the Prospectus;
(i) The issue and sale of the Shares by the Company hereunder and under
the International Underwriting Agreement and the compliance by the Company with
all of the provisions of this Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, constitute a default or termination under, or
require any consent (except such consents as will have been obtained at or prior
to the time of such issue and sale) under or with respect to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, with such exceptions
individually or in the aggregate as would not have a Material Adverse Effect or
a material adverse effect on such compliance or consummation, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company in effect as of the time immediately
preceding the relevant Time of Delivery or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties, with such
exceptions individually or in the aggregate as would not have a Material Adverse
Effect or a material adverse effect on such compliance or consummation; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement and the International Underwriting Agreement,
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except the registration under the Act and the Securities Exchange Act of 1934,
as amended, of the Shares, such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters and the clearance of the public offering of the Shares by the
Underwriters with the National Association of Securities Dealers, Inc. (the
"NASD");
(j) Neither the Company nor any of its subsidiaries is in violation of its
Certificate of Incorporation or By-laws or other constituting or organizational
instrument as in effect on the date hereof or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(k) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a summary
of the terms of the Stock, are accurate, complete and fair;
(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would be reasonably likely, individually or in the aggregate, to
have a Material Adverse Effect; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(m) To the extent such registration is required, each of the Company's
subsidiaries has been duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and each such
registration is in full force and effects; the Company is not required to
register as an "investment adviser" within the Advisers Act and the rules and
regulations of the Commission promulgated thereunder; and neither the Company
nor any of its subsidiaries is and, after giving effect to the offering and sale
of the Shares, neither will be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(n) Each of the Company's subsidiaries is duly registered, licensed or
qualified as an investment adviser under state and local laws and is in
compliance with all such laws requiring any such registration, licensing or
qualification; the Company is not required to be registered, licensed or
qualified as an investment adviser under the laws requiring any such
registration, licensing or qualification in any jurisdiction in which it or its
subsidiaries conduct business.
(o) The Company is not party to any investment advisory agreement or
distribution agreement and is not serving or acting as an investment adviser to
any person; each of the investment advisory agreements and distribution
agreements to which any of the Company's subsidiaries is a party is a legal and
valid obligation of such subsidiary and, to the extent subject thereto, complies
with the applicable requirements of the Advisers Act, the Investment Company Act
and the rules and regulations of the Commission thereunder, and no such
agreement that was either in effect on December 31, 1996 or entered into by a
subsidiary since December 31, 1996 has been terminated or expired, except where
the failure to so comply or any such termination or expiration would not,
individually or in the aggregate, have a Material Adverse Effect; none of such
subsidiaries is in breach or violation of or in default under any such agreement
with such
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exceptions individually or in the aggregate as would not have a Material Adverse
Effect; and no subsidiary of the Company is serving or acting as an investment
adviser to any person except pursuant to an agreement to which such subsidiary
is a party and which is in full force and effect, other than any agreements the
non-existence of which would not, individually or in the aggregate, have a
material adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
(p) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes; and
(q) Coopers & Xxxxxxx L.L.P., who have certified certain financial
statements of the Company and its subsidiaries, and KPMG Peat Marwick LLP, who
have certified certain financial statements of First Quadrant Institutional and
First Quadrant Limited, are each independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $................, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 840,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Xxxxxxx, Xxxxx & Co., for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by certified or
official
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bank check or checks, payable to the order of the Company in immediately
available (same day) funds. The Company will cause the certificates representing
the Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Firm Shares, 9:30 a.m., New York City time, on
............., 1997 or such other time and date as Xxxxxxx, Xxxxx & Co. and the
Company may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by Xxxxxxx, Sachs & Co. in the
written notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as Xxxxxxx, Sachs &
Co. and the Company may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the "First Time of Delivery", such time and
date for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(k) hereof, will be delivered at the offices of Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York
City time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus (excluding the international version thereof) pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
Act; to make no further amendment or any supplement to the Registration
Statement or Prospectus which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you with copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such qualification,
promptly to use its commercially reasonable best efforts to obtain the
withdrawal of such order;
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(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in New York City in such quantities
as you may reasonably request, and, if the delivery of a prospectus is required
at any time prior to the expiration of nine months after the time of issue of
the Prospectus in connection with the offering or sale of the Shares and if at
such time any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the Prospectus
in order to comply with the Act, to notify you and upon your request to prepare
and furnish without charge to each Underwriter and to any dealer in securities
as many copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance, and in case any Underwriter or dealer is
required to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter or dealer, to prepare and
deliver to such Underwriter or dealer as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and
including the date 180 days after the date of the Prospectus, not to offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder and
under the International Underwriting Agreement, any Stock or securities of the
Company that are substantially similar to the Stock, or which are convertible
into or exchangeable or exercisable for, or that represent the right to receive,
Stock or any such substantially similar securities (other than pursuant to
employee stock option or stock purchase plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities, or the
exercise of warrants, outstanding as of, the date of this Agreement, and other
than shares of Stock or such other securities issued as consideration in
investments or acquisitions made by the Company or any of its subsidiaries,
provided that such securities are made subject to the same 180-day restriction),
without your prior written consent;
(f) To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration
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Statement), consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(i) To use its commercially reasonable best efforts to list, subject to
notice of issuance, the Shares on the New York Stock Exchange (the "Exchange");
(j) To file with the Commission such reports on Form SR as may be required
by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the International Underwriting Agreement, the
Agreement between Syndicates, the Selling Agreements, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
printed or produced by or on behalf of the Company in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey (iv) all fees and
expenses in connection with listing the Shares on the New York Stock Exchange;
(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the NASD of
the terms of the sale of the Shares; (vi) the cost of preparing stock
certificates; (vii) the cost and charges of any transfer agent or registrar; and
(viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their
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counsel, stock transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed, in all material respects,
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction; if the Company has elected to rely upon
Rule 462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery, with
respect to the incorporation and good standing of the Company, the Shares being
delivered at such Time of Delivery, this Agreement, the Registration Statement
and the Prospectus as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxxx, Procter & Xxxx LLP, counsel for the Company, shall have
furnished to you their written opinion and letter in substantially the form of
Annex II-A and II-B hereto;
(d) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Coopers & Xxxxxxx
L.L.P. and KPMG Peat Marwick, LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and substance
reasonably satisfactory to you, to the effect set forth in Annex I-1 and l-2
hereto (the executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) -1 and l(a)-2 hereto and a draft of the form
of letter to be delivered on the effective date of any post-effective amendment
to the Registration Statement and as of each Time of Delivery is attached as
Annex I(b)-1 and 1(b)-2 hereto);
(e)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, in each case affecting
its properties, assets or operations, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any change in
the capital stock (other than changes resulting from the exercise of stock
options or warrants or conversion of preferred stock after June 30, 1997 and
prior to the Time of Delivery) or any increase in the long-term debt of the
Company or any of its subsidiaries or any
10
11
change, or any development involving a prospective change, in or affecting the
business affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in Clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the Exchange;
(i) The Company has obtained and delivered to the Underwriters executed
copies of an agreement from all of its stockholders substantially to the effect
set forth in Subsection 5(e) hereof in form and substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(k) The Company shall have furnished or caused to be furnished to you at
such Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of this Section
and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the
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12
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Sachs & Co.
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
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13
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
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14
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
14
15
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to the Company
shall be delivered or sent by mail to the address of the Company set forth in
the Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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16
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Affiliated Managers Group, Inc.
By: __________________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
BT Alex. Xxxxx Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxxx & Co. Inc.
By: Xxxxxxx, Xxxxx & Co.
_____________________________________
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
Total Number Number of Optional
of Shares to be
Firm Shares Purchased if
to be Maximum Option
Underwriter Purchased Exercised
----------- --------- ---------
Xxxxxxx, Xxxxx & Co.
BT Alex. Xxxxx Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxx & Co. Inc.
[NAMES OF OTHER UNDERWRITERS]
Total
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ANNEX I-1
Pursuant to Section 7(d) of the Underwriting Agreement, Coopers & Xxxxxxx
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement comply
as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Representatives and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published rules and regulations, nothing came to their attention that
cause them to believe that the unaudited condensed consolidated financial
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;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
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(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated financial
statements included in the Prospectus;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited consolidated financial
statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options
and stock appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which were
outstanding on the date of the latest financial statements included in
the Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet included in the Prospectus, except in each case
for changes, increases or decreases
2
20
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial statements
included in the Prospectus to the specified date referred to in Clause
(E) there were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except in
each case for decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (vi) above, they have carried out certain specified procedures,
not constituting an examination in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives, which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives,
and have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
3
21
ANNEX I-2
Pursuant to Section 7(d) of the Underwriting Agreement, KPMG Peat Marwick,
LLP shall furnish Letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
First Quadrant Institutional and First Quadrant Limited within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements of First Quadrant
Institutional and First Quadrant Limited examined by them and included in the
Prospectus or the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations thereunder.
22
ANNEX II-A
----------
[Form of Xxxxxxx, Procter & Xxxx LLP opinion to Underwriters]
_________ __, 1997
Xxxxxxx, Xxxxx & Co.,
BT Alex. Xxxxx Incorporated,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxxxx & Co., Inc.
As Representatives ("U.S. Representatives")
of the Several U.S. Underwriters
("U.S. Underwriters"),
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Sachs International,
BT Alex. Xxxxx International,
a division of Bankers Trust International PLC
Xxxxxxx Xxxxx International,
J. Xxxxx Xxxxxxxx & Co. Limited,
As Representatives ("International Representatives")
of the Several International Underwriters
("International Underwriters"),
c/o Goldman Xxxxx International,
Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
In connection with the several purchases by the U.S. Underwriters named in
Schedule 1 to the Underwriting Agreement dated _______, 1997 (the "U.S.
Underwriting Agreement"), among Affiliated Managers Group, Inc., a Delaware
corporation (the "Company"), and the U.S. Representatives, as representatives of
the several U.S. Underwriters named therein (the "U.S. Underwriters"), and the
related several purchases by the International Underwriters named in Schedule 1
to the International Underwriting Agreement dated _______, 1997 (the
"International Underwriting Agreement"), among the Company and the International
Representatives, as
23
representatives of the several International Underwriters (the
"International Underwriters") named therein, of _______ shares (the "Shares") of
the Company's Common Stock, par value $.01 per share (the "Common Stock"), we,
as counsel for the Company, have examined such corporate records, certificates
and other documents, and such questions of law, as we have considered necessary
or appropriate for the purposes of this opinion. (The U.S. Underwriting
Agreement and the International Underwriting Agreements are together herein
referred to as the "Underwriting Agreements," and the U.S. Underwriters and the
International Underwriters are collectively herein referred to as the
"Underwriters.")
With your approval, we have relied as to certain matters on information
obtained from public officials, officers of the Company and other sources
believed by us to be responsible. Also with your approval, we have assumed that
the certificates for the Shares conform to the specimen thereof examined by us
and have been duly countersigned by the transfer agent and duly registered by
the registrar of the Common Stock, and have further assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies, the authenticity of the originals of such
latter documents, and the legal capacity of natural persons, assumptions which
we have not independently verified. In addition, in giving our opinion in
paragraph (iv) below, (a) insofar as it relates to the shares of capital stock
of First Quadrant Corp., we have relied with your permission upon the opinion
of ____________________________________, and (b) insofar as it relates to the
shares of capital stock of The Burridge Group Inc., we have relied with your
permission upon the opinion of Sonnenschein, Nath & Xxxxxxxxx, copies of which
opinions have been provided to you.
In rendering the opinions expressed below, we express no opinion other than
as to the Federal laws of the United States, the laws of the Commonwealth of
Massachusetts, the General Corporation Law of Delaware, the Limited Liability
Company Act of Delaware, the Delaware Revised Uniform Limited Partnership Act
and the Delaware Uniform Partnership Law.
Based on and subject to the foregoing, we are of the opinion that:
(i) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of Delaware, with corporate power to own its
properties and conduct its business as described in the Registration Statement
filed by the Company with the Securities and Exchange Commission (No. 333-34679)
(the "Registration Statement").
(ii) The authorized capital stock of the Company is as set forth in the
Registration Statement under the first paragraph of "Description of Capital
Stock--Authorized and Outstanding Capital Stock;" all of the issued shares of
capital stock of the Company (including the Shares) have been duly authorized
and, when the Shares are paid for by the Underwriters in accordance with the
Underwriting Agreements, will be validly issued, fully paid and non-assessable.
(iii) The Company has been duly qualified as a foreign corporation to do
business and is in good standing in Massachusetts, Ohio, Missouri and North
Dakota.
24
(iv) Each subsidiary of the Company identified on Exhibit A hereto
("Subsidiary") is an existing corporation, limited liability company, limited
partnership, general partnership or association with transferable shares
(commonly known as a "Massachusetts business trust"), as the case may be; each
such Subsidiary which is a corporation, limited liability company, limited
partnership or Massachusetts business trust is in good standing under the laws
of its jurisdiction of organization; all of the issued and outstanding shares of
capital stock of each Subsidiary which is a corporation held by the Company or a
Subsidiary have been duly authorized and validly issued, and are fully paid and
non-assessable; and the Company or a Subsidiary is the record owner of all of
the issued and outstanding shares of capital stock of each Subsidiary which is a
corporation. All of the partnership interests, membership interests and shares
of beneficial interest of each Subsidiary which is a partnership, limited
liability company or Massachusetts business trust have been validly issued in
accordance with applicable law and the partnership agreement, limited liability
agreement or declaration of trust, as applicable, of such Subsidiary; and the
Company or a Subsidiary is the record owner of the partnership interest,
membership interest or shares of beneficial interest indicated on Exhibit A
attached hereto of each such Subsidiary.
(v) Each of the Underwriting Agreements has been duly authorized,
executed and delivered by the Company;
(vi) The Registration Statement has become effective under the Securities
Act of 1933, as amended (the "Act"); and, to the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated.
(vii) To the best of our knowledge, no authorization, approval or consent
of any court or governmental agency or body is required to be obtained by the
Company in connection with the execution and delivery of the Underwriting
Agreements by the Company or the issuance, sale and delivery of the Shares to
the Underwriters, except the registration of the Shares under the Act and the
rules and regulations of the Securities and Exchange Commission thereunder and
except as may be required by the National Association of Securities Dealers,
Inc. (as to which we do not express an opinion) or under the securities or Blue
Sky laws of any jurisdiction (as to which we do not express an opinion).
(viii) The issuance, sale and delivery of the Shares to the Underwriters
pursuant to the Underwriting Agreements will not (a) result in any violation of
the provisions of the Certificate of Incorporation or by-laws of the Company,
(b) conflict with or result in a breach or violation on the part of the Company
of any of the terms or provisions of, or constitute a default under, any of the
agreements identified on Exhibit B hereto, or (c) to the best of our knowledge,
result in a violation on the part of the Company of any applicable statute or
regulation.
(ix) Each Subsidiary identified on Exhibit C hereto is registered as an
investment adviser under the Investment Advisers Act of 1940, as amended (the
"Advisers Act"), and none of such Subsidiaries is required to be registered,
licensed or qualified as an investment adviser under state
25
or local laws in the United States. The Company is not required to register as
an investment adviser within the meaning of the Advisers Act and the rules and
regulations of the Commission promulgated thereunder. Neither the Company nor
any Subsidiary is an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended.
The opinions set forth herein are based upon currently existing statutes,
rules and regulations and judicial decisions and is rendered as of the date
hereof, and we disclaim any obligation to advise you of any change in any of the
foregoing sources of law or subsequent developments in law or changes in facts
or circumstances which might affect any matters or opinions set forth herein.
The opinions set forth herein are furnished by us as counsel for the
Company to you as Representatives of the several Underwriters and is solely for
the benefit of the several Underwriters.
Very truly yours,
Xxxxxxx, Procter & Xxxx LLP
26
ANNEX II-B
----------
[Form of Xxxxxxx, Procter & Xxxx LLP letter to Underwriters]
___________ __, 1997
Xxxxxxx, Sachs & Co.,
BT Alex. Xxxxx Incorporated,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxxxx & Co., Inc.
As Representatives ("U.S. Representatives")
of the Several U.S. Underwriters
("U.S. Underwriters"),
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Sachs International,
BT Alex. Xxxxx International,
a division of Bankers Trust International PLC
Xxxxxxx Xxxxx International,
J. Xxxxx Xxxxxxxx & Co. Limited,
As Representatives ("International Representatives")
of the Several International Underwriters
("International Underwriters"),
c/o Goldman Xxxxx International,
Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
This is with reference to the registration under the Securities Act of 1933
(the "Act") of_______shares of the Common Stock, par value $.01 per share, of
Affiliated Managers Group, Inc. (the "Company"). When the Company's Registration
Statement (No. 333-34679) (the "Registration Statement") was declared effective
by the Securities and Exchange Commission, the form of prospectus included
therein omitted certain information in reliance upon Rule 430A under the Act.
Such information is contained in the Prospectus dated _______ __, 1997 relating
to the initial offering of the Securities (the "Prospectus") and, as provided in
Rule 430A, is deemed to be a part of the Registration Statement as of the time
it was declared effective. [The Prospectus also updates or supplements certain
information contained in the Registration Statement.]
27
As counsel to the Company, we reviewed the Registration Statement and the
Prospectus, participated in discussions with your representatives, those of
counsel for the several U.S. Underwriters and International Underwriters
(collectively, the "Underwriters"), and those of the Company and its
accountants, and advised the Company as to the requirements of the Act and the
applicable rules and regulations thereunder. Between the effectiveness of the
Registration Statement and the time of the delivery of this letter, we
participated in further discussions with your representatives, those of counsel
for the several U.S. Underwriters and International Underwriters, and those of
the Company and its accountants, and we reviewed certain certificates of
officers of the Company and public officials and letters from the Company's
independent accountants delivered to you today.
On the basis of the information that we gained in the course of the
performance of the services referred to above, considered in the light of our
understanding of the applicable law and the experience we have gained through
our practice under the Act, we confirm to you that, in our opinion, the
Registration Statement, as of its effective date, and the Prospectus, as of the
date of the Prospectus, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Act and the applicable rules
and regulations of the Securities and Exchange Commission thereunder. Further,
nothing that came to our attention in the course of such review has caused us to
believe that the Registration Statement, as of its effective 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 not
misleading or that the Prospectus, as of the date of the Prospectus, contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Also, nothing that has come to our
attention in the course of the procedures described in the second sentence of
the preceding paragraph has caused us to believe that the Prospectus, as of the
date and time of delivery of this letter, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in light of circumstances under which they were made,
not misleading.
In addition, we do not know of any litigation or any governmental
proceeding instituted or threatened against the Company or its subsidiaries that
would be required to be disclosed in the Prospectus and is not so disclosed.
Also, we do not know of any documents that are required to be filed as exhibits
to the Registration Statement and are not so filed or of any documents that are
required to be summarized in the Prospectus and are not so summarized.
The limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process are
such, however, that we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for those made under the captions
"Description of Capital Stock," and "Business -- Government Regulation" in the
Prospectus insofar as they describe provisions, therein described, of documents
governed by the Delaware General Corporation Law, of the Investment Advisers Act
of 1940, as amended, or the Investment Company Act of 1940, as amended. Also, we
do not express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement or the Prospectus.
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This letter is furnished by us as counsel for the Company to you as U.S.
Representatives of the several U.S. Underwriters and as International
Representatives of the International Underwriters, respectively, and is solely
for the benefit of the several U.S. Underwriters and International Underwriters.
Very truly yours,
Xxxxxxx, Procter & Xxxx LLP
