THE WARNACO GROUP, INC.
(a Delaware corporation)
Offering of
8,832,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: __________, 1995
THE WARNACO GROUP, INC.
(a Delaware corporation)
Offering of
8,832,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
____________, 1995
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxxxx & Co., Inc.
As Representatives of the several U.S. Underwriters
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
The Warnaco Group, Inc., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxxx, Chairman, President and Chief Executive Officer
of the Company (the "Selling Stockholder") confirm their respective agreements
with Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"),
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Bear, Xxxxxxx & Co. Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxxxx & Co., Inc., and each of the
other Underwriters named in Schedule A hereto (collectively, the "U.S.
Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 11), for whom Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Bear,
Xxxxxxx & Co.
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Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxxxxxx & Co., Inc. are acting
as representatives (in such capacity, the "U.S. Representatives"), with respect
to (i) the sale by the Company and the purchase by the several U.S.
Underwriters, acting severally and not jointly, of an aggregate of 7,040,000
shares of Class A Common Stock, par value $.01 per share, of the Company (the
"Common Stock"), (ii) the sale by the Selling Stockholder and the purchase by
the several U.S. Underwriters, acting severally and not jointly, of an aggregate
of 640,000 shares of Common Stock and (iii) the grant by the Company and the
Selling Stockholder to the U.S. Underwriters, acting severally and not jointly,
of the option described in Section 2(e) hereof to purchase all or any part of
the 1,032,000 and 120,000 additional shares of Common Stock, respectively, to
cover over-allotments. The 7,680,000 shares of Common Stock (the "Initial U.S.
Shares") and all or any part of the 1,152,000 shares of Common Stock subject to
the options described in Section 2(e) hereof (the "U.S. Option Shares") to be
purchased by the U.S. Underwriters are collectively hereinafter called the "U.S.
Shares." The 1,440,000 shares of Common Stock subject to the option described in
Section 2(e) hereof are hereinafter collectively called the "Option Shares."
It is understood that the Company and the Selling Stockholder
are entering into an agreement, dated the date hereof (the "International
Purchase Agreement"), providing for the issuance and sale by the Company and the
sale by the Selling Stockholder of 1,760,000 shares and 160,000 shares of Common
Stock, respectively (collectively, the "Initial International Shares"), through
arrangements with certain underwriters outside the United States and Canada (the
"Managers" and, together with the U.S. Underwriters, the "Underwriters"), for
whom Xxxxxxx Xxxxx International Limited, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, Bear, Xxxxxxx International Limited, Xxxxxx Xxxxxxx &
Co. International Limited, Xxxxxxxxxxx International Ltd. and UBS Limited are
acting as lead managers (the "Lead Managers") and the grant by the Company to
the Managers, acting severally and not jointly, of an option described in
Section 2(e) of the International Purchase Agreement to purchase all or any part
of the Managers' pro rata portion of 288,000 additional shares of Common Stock
to cover over-allotments. It is understood that the Company is not obligated to
sell, and the U.S. Underwriters are not obligated to purchase, any Initial U.S.
Shares unless all of the Initial International Shares are contemporaneously
purchased by the Managers. The U.S. Shares and the International Shares are
hereinafter collectively referred to as the "Offered Shares."
The Company and the Selling Stockholder understand that the
U.S. Underwriters will simultaneously enter into an agreement with the Managers
dated the date hereof (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the U.S. Underwriters and the
Managers, under the direction of Xxxxxxx Xxxxx.
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You have advised us that you and the other U.S. Underwriters,
acting severally and not jointly, desire to purchase the Initial U.S. Shares
and, if the U.S. Underwriters so elect, the U.S. Option Shares, and that you
have been authorized by the other U.S. Underwriters to execute this Agreement
and the U.S. Price Determination Agreement referred to below on their behalf.
The initial public offering price per share for the U.S.
Shares and the purchase price per share for the U.S. Shares to be paid by the
several U.S. Underwriters shall be agreed upon by the Company, the Selling
Stockholder and the U.S. Representatives, acting on behalf of the several U.S.
Underwriters, and such agreement shall be set forth in a separate written
instrument substantially in the form of Exhibit A hereto (the "U.S. Price
Determination Agreement"). The U.S. Price Determination Agreement may take the
form of an exchange of any standard form of written telecommunication between
the Company, the Selling Stockholder and the U.S. Representatives and shall
specify such applicable information as included in Exhibit A hereto. The
offering of the U.S. Shares will be governed by this Agreement, as supplemented
by the U.S. Price Determination Agreement. From and after the date of the
execution and delivery of the U.S. Price Determination Agreement, this Agreement
shall be deemed to incorporate, and all references herein to "this Agreement" or
"herein" shall be deemed to include, the U.S. Price Determination Agreement.
The initial public offering price per share and the purchase
price per share for the International Shares to be paid by the Managers pursuant
to the International Purchase Agreement shall be set forth in a separate
agreement (the "International Price Determination Agreement"), the form of which
is attached to the International Purchase Agreement. The purchase price per
share for the International Shares to be paid by the several Managers shall be
identical to the purchase price per share for the U.S. Shares to be paid by the
several U.S. Underwriters hereunder. This Agreement (including the related U.S.
Price Determination Agreement) and the International Purchase Agreement
(including the related International Price Determination Agreement) are
collectively referred to herein as the "Purchase Agreements."
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 33-61701) covering the registration of the Offered Shares under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or preliminary prospectuses, and either (A) has prepared
and proposes to file, prior to the effective date of such registration
statement, an amendment to such registration statement, including final
prospectuses, or (B) if the Company has elected to rely upon Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), will prepare and file (i) prospectuses, in accordance
with the provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations, or
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(ii) a term sheet, in accordance with the provisions of Rule 434 ("Rule 434") of
the 1933 Act Regulations and Rule 424(b), as applicable, promptly after
execution and delivery of the U.S. Price Determination Agreement.* The
information, if any, included in such prospectuses or term sheet, as the case
may be, that was omitted from any prospectus included in such registration
statement at the time it becomes effective but that is deemed, pursuant to Rule
430A(b) or Rule 434, as the case may be, to be part of such registration
statement at the time it becomes effective is referred to herein as the "Rule
430A Information." Each form of U.S. Prospectus and form of International
Prospectus used before the time such registration statement becomes effective,
and any form of U.S. Prospectus and form of International Prospectus that omits
the Rule 430A Information that is used after such effectiveness and prior to the
execution and delivery of the U.S. Price Determination Agreement or the
International Price Determination Agreement, is herein called a "preliminary
prospectus." If the Company elects to rely on Rule 434, all references to the
U.S. Prospectus shall be deemed to include, without limitation, the Form of U.S.
Prospectus and the term sheet, taken together, provided to the U.S. Underwriters
by the Company in reliance on Rule 434 and all references to the International
Prospectus shall be deemed to include, without limitation, the Form of
International Prospectus and the term sheet, taken together, provided to the
Managers by the Company in reliance on Rule 434. If the Company files a
registration statement to register a portion of the Common Stock and relies on
Rule 462(b) for such registration statement to become effective upon filing with
the Commission (the "Rule 462 Registration Statement"), then any reference to
"Registration Statement" herein shall be deemed to be to both the registration
statement referred to above (No. 33-61701) and the Rule 462 Registration
Statement, as each such registration statement may be amended pursuant to the
1933 Act. Any reference to any preliminary prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act as of the date of such preliminary prospectus.
Such registration statement, including the exhibits thereto and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, as amended at the time it becomes effective and including, if applicable,
the Rule 430A Information, is herein called the "Registration Statement," and
the form of U.S. Prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act and form of
International Prospectus, including the documents incorporated by reference
------------
* Two forms of prospectus are to be used in connection with the offering and
sale of the Offered Shares: one relating to the U.S. Shares (the "Form of
U.S. Prospectus") and one relating to the International Shares (the "Form
of International Prospectus"). The Form of International Prospectus is
identical to the Form of U.S. Prospectus, except for the front cover page,
an "Underwriting," a "Legal Matters," an "Experts," an "Available
Information" and a "Documents Incorporated by Reference" section and the
back cover page.
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therein pursuant to Item 12 of Form S-3 under the 1933 Act included in the
Registration Statement at the time it becomes effective are herein called the
"U.S. Prospectus" and the "International Prospectus," respectively, and,
collectively, the "Prospectuses" and, individually, a "Prospectus," except that,
if the final U.S. Prospectus or International Prospectus, as the case may be,
first furnished to the U.S. Underwriters or the Managers after the execution of
the U.S. Price Determination Agreement or the International Price Determination
Agreement for use in connection with the offering of the Offered Shares differs
from the prospectuses included in the Registration Statement at the time it
becomes effective (whether or not such prospectuses are required to be filed
pursuant to Rule 424(b)), the terms "U.S. Prospectus," "International
Prospectus," "Prospectuses" and "Prospectus" shall refer to the final U.S.
Prospectus or International Prospectus, as the case may be, first furnished to
the U.S. Underwriters or the Managers, as the case may be, for such use.
The Company and the Selling Stockholder understand that the
U.S. Underwriters propose to make a public offering of the U.S. Shares as soon
as you deem advisable after the Registration Statement becomes effective and the
U.S. Price Determination Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with each of the U.S. Underwriters that:
(i) The Company meets the requirements for use of
Form S-3 under the 1933 Act, and when the Registration
Statement shall become effective, and if the Company has
elected to rely upon Rule 430A, on the date of the U.S. Price
Determination Agreement or the International Price
Determination Agreement, and on the effective or issue date of
each amendment or supplement to the Registration Statement or
the Prospectuses, and at the Closing Time referred to below,
and if any U.S. Option Shares are purchased, up to and
including the Date of Delivery referred to below, (A) the
Registration Statement and any amendments and supplements
thereto will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; (B)
neither the Registration Statement nor any amendment or
supplement thereto will contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and (C) neither of the Prospectuses nor any
amendment or supplement to either of them include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, this representation
and warranty does not apply to statements or omissions from
the Registration
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Statement or the Prospectuses or any amendments or supplements
thereto made in reliance upon and in conformity with
information furnished or confirmed in writing to the Company
by or on behalf of any Underwriter through you or the Lead
Managers expressly for use in the Registration Statement or
the Prospectuses or any amendments or supplements thereto.
(ii) The documents incorporated by reference in the
Prospectuses pursuant to Item 12 of Form S-3 under the 1933
Act, at the time they were filed with the Commission,
conformed in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read
together with the information in the Prospectuses, at the time
the Registration Statement shall become effective, and if the
Company has elected to rely upon Rule 430A, on the date of the
U.S. Price Determination Agreement or the International Price
Determination Agreement, and on the effective or issue date of
each amendment or supplement to the Registration Statement or
the Prospectuses, and at the Closing Time referred to below,
and, if any Option Shares are purchased, on the Date of
Delivery referred to below, will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading.
(iii) Xxxxx & Young LLP, who are reporting upon the
audited consolidated financial statements and schedules
included or incorporated by reference in the Registration
Statement, are independent public accountants as required by
the 1933 Act, the 1934 Act, the 1933 Act Regulations and the
1934 Act Regulations.
(iv) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations
under this Agreement, the U.S. Price Determination Agreement,
the International Purchase Agreement and the International
Price Determination Agreement, and this Agreement and the
International Purchase Agreement have been, and the U.S. Price
Determination Agreement and the International Price
Determination Agreement on the date thereof will be, duly
authorized, executed and delivered by the Company.
(v) The consolidated financial statements included or
incorporated by reference in the Registration Statement and
the Prospectuses, together with the related schedules and
notes, present fairly,
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the consolidated financial position of the Company and its
Subsidiaries (as hereinafter defined) as of the dates
indicated and the consolidated statements of operations,
shareholders' equity and cash flows of the Company and its
Subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The
financial statement schedules, if any, included or
incorporated by reference in the Registration Statement
present fairly in accordance with GAAP the information
required to be stated therein and have been compiled on a
basis consistent with that of the audited consolidated
financial statements included in the Registration Statement.
The selected financial data included in the Prospectuses
present fairly in accordance with GAAP the information shown
therein and have been compiled on a basis consistent with that
of the audited consolidated financial statements included in
the Registration Statement.
(vi) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware with corporate power and authority under
such laws to own, lease and operate its properties and to
conduct its business as described in the Prospectuses; and the
Company is duly qualified as a foreign corporation to transact
business and is in good standing under the laws of each other
jurisdiction in which the nature of its business or its
ownership or leasing of its properties requires qualification,
except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its Subsidiaries,
considered as one enterprise.
(vii) Each of the Company's significant subsidiaries
(as such term is defined in Regulation S-X promulgated by the
Commission, each such subsidiary is hereinafter referred to as
a "Significant Subsidiary," and all of the Company's
subsidiaries are collectively hereinafter referred to as the
"Subsidiaries") is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation,
with power and authority to own, lease and operate its
properties and conduct its business as described in the
Prospectuses, is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of
each jurisdiction in which the nature of its business or its
ownership or leasing of its properties required qualification,
except where the failure to be so qualified or in good
standing would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs
and business prospects of the Company and the Subsidiaries
considered as one enterprise; and all the
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outstanding shares of capital stock of the Subsidiaries of the
Company have been duly authorized and validly issued, are
fully-paid and non-assessable, and are owned by the Company
(other than directors' qualifying shares), directly or
indirectly, free and clear of all liens, encumbrances,
security interests and claims (other than pursuant to the
Collateral Documents (as defined under the $800,000,000 Credit
Agreement, dated October 14, 1993, among the Company, Warnaco
Inc., the Bank of Nova Scotia and Citibank U.S.A.)); none of
the outstanding shares of capital stock of the Subsidiaries
was issued in violation of the preemptive or similar rights of
any stockholder of such corporation arising by operation of
law, under the charter or by-laws of any Subsidiary or under
any agreement to which the Company or any Subsidiary is a
party.
(viii) The Company had at the date indicated in the
Prospectuses a duly authorized, issued and outstanding
capitalization as set forth in the Prospectuses under the
caption "Capitalization," and the Offered Shares will conform
in all material respects to the descriptions thereof
incorporated by reference into the Prospectuses.
(ix) The Offered Shares to be sold by the Company
pursuant to this Agreement and the International Purchase
Agreement have been duly authorized and, when issued and
delivered by the Company upon receipt of the payment therefor
in accordance with this Agreement and the International
Purchase Agreement, will be validly issued fully paid and
non-assessable; such Offered Shares are not subject to the
preemptive or other similar rights of any stockholder of the
Company arising by operation of law, under the charter and
by-laws of the Company or under any agreement to which the
Company or any of its Subsidiaries is a party.
(x) All of the outstanding shares of capital stock of
the Company, including the Offered Shares to be sold by the
Selling Stockholder pursuant to this Agreement and the
International Purchase Agreement, have been duly authorized
and validly issued and are fully paid and non-assessable; and
none of the outstanding shares of Common Stock of the Company
was issued in violation of the preemptive or other similar
rights or any stockholder of the Company arising by operation
of law, under the charter or by-laws of the Company or under
any agreement to which the Company or any of its Subsidiaries
is a party.
(xi) Except as disclosed in the Prospectuses, there
are no outstanding options, warrants or other rights calling
for issuance of, and no commitments, plans or arrangements to
issue, any shares of capital stock of
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the Company or any of its Subsidiaries or any security
convertible into or exchangeable for capital stock of the
Company or any of its Subsidiaries.
(xii) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectuses, except as otherwise stated therein or
contemplated thereby, there has not been (A) any material
adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Company and its Subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any Subsidiary,
other than in the ordinary course of business, that is
material to the Company and its Subsidiaries, considered as
one enterprise, or (C) other than its regular quarterly
dividend, any dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(xiii) Neither the Company nor any Subsidiary is in
violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets
is subject, except for such defaults that would not in the
aggregate have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise.
(xiv) The execution, delivery and performance of this
Agreement, the U.S. Price Determination Agreement, the
International Purchase Agreement and the International Price
Determination Agreement, the issuance, sale and delivery of
the Offered Shares, the consummation by the Company of the
transactions contemplated thereby and in the Registration
Statement and compliance by the Company with the terms of the
foregoing have been duly authorized by all necessary corporate
action on the part of the Company and do not and will not
result in any violation of the charter or by-laws of the
Company or any Subsidiary, and do not, and at the Closing Time
will not, conflict with, or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien or
encumbrance upon any property or assets of the Company or any
Subsidiary under (A) any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary is bound
or to which any of their respective properties or assets are
subject or (B) any law, statute, rule, regulation,
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judgment, order, writ or decree applicable to the Company or
any of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or
any Subsidiary or any of their respective properties, assets
or operations.
(xv) No authorization, approval, consent or license
of any government, governmental instrumentality or court
(other than under the 1933 Act and the 1933 Act Regulations
and the securities or blue sky laws of the various states) is
necessary in connection with the due authorization, execution,
delivery and performance by the Company of this Agreement, the
U.S. Price Determination Agreement, the International Purchase
Agreement and the International Price Determination Agreement,
and the issuance, sale and delivery of the Offered Shares.
(xvi) Except as disclosed in the Prospectuses, there
is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Subsidiary that is
required to be disclosed in the Registration Statement or
Prospectuses or that, if determined adversely to the Company
or any of its Subsidiaries, individually or in the aggregate
might have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise, or which might materially and
adversely affect the consummation of the transactions
contemplated in this Agreement, the International Purchase
Agreement and in the Registration Statement.
(xvii) There are no contracts or documents of a
character to which the Company or any Subsidiary is a party or
by which any of them are bound required to be described in the
Registration Statement, the Prospectuses or the documents
incorporated by reference therein or to be filed as exhibits
thereto that are not described and filed as required.
(xviii) The Company and its Subsidiaries are in
compliance with, and each such entity has not received any
notice of any outstanding violation of, all laws, ordinances,
rules and regulations applicable to it and its operations
except, in either case, where any failure by the Company or
any Subsidiary to comply with any such law, regulation,
ordinance or rule would not have, individually or in the
aggregate, a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise.
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(xix) Neither the Company nor any of its affiliates
has taken or will take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the
Common Stock; and neither the Company nor any of its
affiliates has distributed or will distribute any prospectus
(as such term is defined in the 1933 Act and the 1933 Act
Regulations) in connection with the offering and sale of the
Offered Shares other than any preliminary prospectus filed
with the Commission or the Prospectuses or other material
permitted by the 1933 Act or the 1933 Act Regulations.
(xx) The Company is not an investment company within
the meaning of the Investment Company Act of 1940, as amended.
(xxi) No labor dispute exists with the Company's
employees or with employees of its Subsidiaries or, to the
knowledge of the Company, is imminent that could reasonably be
expected to materially and adversely affect the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise.
(xxii) The Company and each of its Subsidiaries have
good and marketable title to all properties and assets owned
by them, free and clear of all liens, encumbrances or
restrictions, except such as (A) are described in the
Prospectuses or (B) do not materially impair or interfere with
the current use made of such properties or could reasonably be
expected to materially and adversely affect the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise or (C) are neither material in
amount nor materially significant or (D) are granted for
borrowed money, in each case in relation to the business of
the Company and its Subsidiaries, considered as one
enterprise; all of the leases and subleases material to the
businesses of the Company and its Subsidiaries, considered as
one enterprise, and under which the Company or any Subsidiary
holds properties described in the Prospectuses, are in full
force and effect and neither the Company nor any Subsidiary
has received any notice of any claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any
Subsidiary under any of the leases or subleases mentioned
above or affecting or questioning the rights of the Company or
any Subsidiary, to the continued possession of the leased or
subleased premises under any such lease or sublease, which
claims, in the aggregate might be expected to have a material
adverse effect on the condition (financial or otherwise),
earnings,
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business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise.
(xxiii) The Company and each of its Subsidiaries own
or possess all foreign and domestic governmental licenses,
permits, certificates, consents, orders, approvals and other
authorizations (collectively, "Governmental Licenses")
necessary to own or lease, as the case may be, and to operate
its properties and to carry on its business as presently
conducted, except where the failure to possess such
Governmental Licenses might be expected to have a material
adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Company and its Subsidiaries, considered as one enterprise,
and neither the Company nor any Subsidiary has received any
notice of proceedings relating to revocation or modification
of any such Governmental Licenses that, singly or in the
aggregate, might be expected to have a material adverse effect
on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise.
(xxiv) The Company, directly or through its
Subsidiaries, is the owner of record for the uses described in
the Prospectuses of the trademarks "WARNER'S", "HATHAWAY",
"XXXX", "XXXXXX XXXXX" (for or in connection with men's and
boys' underwear, sleepwear, loungewear, bodywear and related
products, and women's and girls' intimate apparel, sleepwear,
loungewear, bodywear and related products) incident to its
ownership of the trust certificates therefor in the Xxxxxx
Xxxxx Trademark Trust, "Xxxxxxx" and "Van Raalte" and
variations and formatives thereof (collectively, the
"Principal Trademarks"); and the Company has the right to use,
pursuant to trademark license agreements (collectively, the
"Licenses"), other names and marks currently employed by them
in connection with the business now operated by them
(including, without limitation, "VALENTINO INTIMO", "SCAASI",
"WHITE STAG", "CATALINA", "XXXXXX XXXXX" (for men's
accessories), "CHAPS BY XXXXX XXXXXX", and "FRUIT OF THE
LOOM"); and (i) neither the Company nor any of its
Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of
the Principal Trademarks which, singularly or in the
aggregate, if the subject of an unfavorable final
determination, would result in any material adverse change in
the ability of the Company and its Subsidiaries, taken as a
whole to conduct their business as described in the
Prospectuses; (ii) the Company and each of its Subsidiaries
has fulfilled and performed all of its material obligations
with respect to the Licenses and the Licenses remain in full
force and effect; (iii) to the best of the Company's
knowledge, no event
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has occurred with respect to the Licenses which would result
in a material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects
of the Company and its Subsidiaries, considered as one
enterprise; and (iv) to the best of the Company's knowledge,
the Xxxxxx Xxxxx Trademark Trust is not in violation of its
organizational documents or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any agreement, indenture or instrument to which
it is a party or by which it is bound, which violation or
default could affect (a) ownership by the Trust of the
trademarks which are the subject of its organizational
documents or (b) the Company's and its Subsidiaries right to
use the "XXXXXX XXXXX" trademarks referred to in the
Prospectuses. The Company and its Subsidiaries own or have the
right to use pursuant to license, sublicense, agreement or
permission all Intellectual Property (as defined below)
necessary or desirable for the operation of the business as
previously conducted and proposed to be conducted in the
Prospectuses. (As used herein, "Intellectual Property" means
trademark and service marks, copyrights, know-how, patent and
tradesecrets rights, confidential and other proprietary
rights.)
(xxv) The Company and each of its Subsidiaries comply
in all material respects with all Environmental Laws (as
defined below) except to the extent that failure to comply
with such Environmental Laws would not have a material adverse
effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise. Neither the
Company nor any of its Subsidiaries (i) is the subject of any
pending or, to the knowledge of the Company, threatened
federal, state or local investigation evaluating whether any
remedial action by the Company or any Subsidiary is needed to
respond to a release of any Hazardous Materials (as defined
below) into the environment, resulting from the Company's or
any of its Subsidiaries' business operations or ownership or
possession of any of their properties or assets or (ii) is in
contravention of any Environmental Laws that, in the case of
(i) or (ii), might be expected to have a material adverse
effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise. Neither the
Company nor any Subsidiary has received any notice or claim,
nor are there pending or, to the knowledge of the Company,
threatened lawsuits against them, with respect to violations
of an Environmental Law or in connection with any release of
any Hazardous Material into the environment that, in the
aggregate, if the subject of any unfavorable
13
decision, ruling or finding, might have a material adverse
effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise. As used herein,
"Environmental Laws" means any foreign, federal, state or
local law or regulation applicable to the Company's or any of
its Subsidiaries' business operations or ownership or
possession of any of their properties or assets relating to
environmental matters, and "Hazardous Materials" means those
substances that are regulated by or form the basis of
liability under any Environmental Laws.
(xxvi) All United States federal income tax returns
of the Company and its Subsidiaries required by law to be
filed have been filed and all taxes shown by such returns or
otherwise assessed, which are due and payable, have been paid,
except tax assessments, if any, as are being contested in good
faith and as to which adequate reserves have been provided.
Except as disclosed in the Prospectuses, all other franchise
and income tax returns of the Company and its Subsidiaries
required to be filed pursuant to applicable foreign, state or
local law have been filed, except insofar as the failure to
file such returns would not have a material adverse effect on
the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, and all taxes
shown on such returns or otherwise assessed which are due and
payable have been paid, except for such taxes, if any, as are
being contested in good faith and as to which adequate
reserves have been provided. To the best of the Company's
knowledge, the charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of any income and
corporate franchise tax liability for any years not finally
determined are adequate to meet any assessments or
re-assessments for additional income or corporate franchise
tax for any years not finally determined, except as disclosed
in the Prospectuses and except to the extent of any inadequacy
that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise.
(xxvii) The Company has obtained the written
agreements of each of (i) Xxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxxxxxx, Xxxxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxxxxx, Xx., Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxx, in the forms previously furnished to you
that, for a period of 90 days from the date hereof and (ii)
from Xxxxxx Xxxxx, Inc., in the form previously furnished to
you, that until October 30, 1995, such parties will not,
without the prior written consent of Xxxxxxx Xxxxx on behalf
of the Underwriters, directly or indirectly, sell, offer to
sell, grant any
14
option for the sale of, or otherwise dispose of any shares of
Common Stock or securities or rights convertible into or
exercisable or exchangeable for Common Stock, other than with
respect to Xxxxx X. Xxxxxxx with respect to the sale of the
Offered Shares pursuant to this Agreement and the
International Purchase Agreement.
(xxviii) Except as set forth in the Prospectuses,
there are no holders of securities (debt or equity) of the
Company, or holders of rights (including, without limitation,
preemptive rights), warrants or options to obtain securities
of the Company or its Subsidiaries, who have the right to
request the Company to register securities held by them under
the 1933 Act, other than holders who will not have such rights
for the 90-day period after the date hereof (or, in the case
of Xxxxxx Xxxxx, Inc., until October 30, 1995), or who have
waived their rights with respect to the inclusion of their
securities in the registration statement on Form S-3 relating
to the Offered Shares.
(xxix) The Company and its Subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general and specific
authorizations; (ii) transactions are recorded as necessary to
permit preparations of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific
authorizations; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(b) The Selling Stockholder represents and warrants to, and
agrees with, each of the U.S. Underwriters as follows:
(i) The Selling Stockholder is not prompted to sell
the Offered Shares to be sold by the Selling Stockholder by
any information concerning the Company that is not set forth
in the Prospectuses or other documents filed by the Company
with the Commission pursuant to the periodic reporting and
other informational requirements of the Exchange Act.
(ii) The Selling Stockholder does not have any
knowledge or any reason to believe that the Registration
Statement or the Prospectuses (or any amendment or supplement
thereto or any documents incorporated by reference therein)
contain any untrue statements of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the
15
statements therein not misleading; except that the foregoing
shall only apply to statements in or omissions from any such
document in reliance upon, and in conformity with, information
furnished to the Company by or on behalf of the Selling
Stockholder, specifically for use in the preparation thereof.
(iii) This Agreement and the International Purchase
Agreement have been, and the U.S. Price Determination
Agreement and the International Price Determination Agreement
on the date thereof will be, duly executed and delivered by
such Selling Stockholder.
(iv) Except as set forth in the Prospectuses, there
is no action, suit, investigation (of which the Selling
Stockholder has received written notice) or proceeding before
or by any government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge of the
Selling Stockholder, threatened to which the Selling
Stockholder is or would be a party or of which the property of
the Selling Stockholder is or may be subject, that (i) seeks
to restrain, enjoin, prevent the consummation of or otherwise
challenge the sale of Offered Shares by the Selling
Stockholder or any of the other transactions contemplated
hereby or (ii) questions the legality or validity of any such
transactions or seeks to recover damages or obtain other
relief in connection with any such transactions.
(v) No authorization, approval, consent or license of
any government, governmental instrumentality or court (other
than under the 1933 Act and the 1933 Act Regulations and the
securities or blue sky laws of the various states) is required
for the execution and delivery by the Selling Stockholder of
this Agreement, the International Purchase Agreement, the U.S.
Price Determination Agreement and the International Price
Determination Agreement and the valid sale and delivery of the
Offered Shares to be sold by the Selling Stockholder hereunder
and thereunder.
(vi) The execution and delivery of this Agreement,
the International Purchase Agreement, the U.S. Price
Determination Agreement and the International Price
Determination Agreement by the Selling Stockholder, the sale
of the Offered Shares by the Selling Stockholder hereunder and
thereunder, the compliance by the Selling Stockholder with all
of the provisions of this Agreement, the International
Purchase Agreement, the U.S. Price Determination Agreement and
the International Price Determination Agreement and the
consummation of the transactions herein and therein
contemplated will not result in a breach by the Selling
16
Stockholder of, or constitute a default by the Selling
Stockholder under, any agreement, instrument, decree, judgment
or order to which the Selling Stockholder is a party or by
which the Selling Stockholder may be bound or the properties
of the Selling Stockholder may be subject.
(vii) The Selling Stockholder has, and will at the
Closing Time have, good and valid title to the U.S. Shares to
be sold by the Selling Stockholder pursuant to this Agreement,
free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind; and, upon delivery
of such U.S. Shares and payment of the purchase price therefor
as contemplated in this Agreement and the International
Purchase Agreement, each of the U.S. Underwriters will receive
good and valid title to the U.S. Shares purchased by it from
the Selling Stockholder, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any
kind.
(viii) Certificates for all of the Offered Shares to
be sold by the Selling Stockholder pursuant to this Agreement
and the International Purchase Agreement, in suitable form for
transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures
guaranteed will be delivered to the U.S. Underwriters pursuant
to this Agreement and the Managers pursuant to the
International Purchase Agreement.
(ix) The Selling Stockholder has not taken and will
not take, directly or indirectly, any action designed to cause
or result in stabilization or manipulation of the price of the
Common Stock; and the Selling Stockholder has not distributed
and will not distribute any prospectus (as such term is
defined in the 1933 Act and the 1933 Act Regulations) in
connection with the offering and sale of the Offered Shares
other than any preliminary prospectus filed with the
Commission or the Prospectuses or other material permitted by
the 1933 Act or the 1933 Act Regulations.
(c) Any certificate signed by any officer of the Company or
any Subsidiary and delivered to you or to Fried, Xxxxx, Xxxxxx, Xxxxxxx &
Xxxxxxxx as counsel for the Underwriters at or prior to the Closing Time
pursuant to this Agreement or the transactions contemplated hereby shall be
deemed a representation and warranty by the Company or such Subsidiary, as the
case may be, to each U.S. Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholder as such and
delivered to you or to counsel for the Underwriters at or prior to the Closing
Time pursuant to the terms of this Agreement or the transactions
17
contemplated hereby shall be deemed a representation and warranty by the Selling
Stockholder to each U.S. Underwriter, as to the matters covered thereby.
Section 2. Sale and Delivery to the U.S. Underwriters;
Closing. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to sell to each U.S. Underwriter, severally and not jointly, and each
U.S. Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price per share set forth in the U.S. Price
Determination Agreement, that proportion of the number of Initial U.S. Shares
being sold by the Company which the number of Initial Shares set forth in
Schedule A opposite the name of such U.S. Underwriter (plus such additional
number of Initial U.S. Shares that such U.S. Underwriter may become obligated to
purchase pursuant to Section 11 hereof) bears to the total number of Initial
U.S. Shares subject, in each case, to such adjustments as the U.S. underwriters
in their discretion shall make to eliminate any sale or purchases of fractional
shares.
(b) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Selling
Stockholder agrees to sell to each U.S. Underwriter, severally and not jointly,
and each U.S. Underwriter agrees, severally and not jointly, to purchase from
the Selling Stockholder, at the purchase price per share set forth in the U.S.
Price Determination Agreement, that proportion of the number of Initial U.S.
Shares being sold by the Selling Stockholder which the number of Initial U.S.
Shares set forth in Schedule A opposite the name of such U.S. Underwriter (plus
such additional number of Initial U.S. Shares that such U.S. Underwriter may
become obligated to purchase pursuant to Section 11 hereof) bears to the total
number of Initial U.S. Shares, subject, in each case, to such adjustments as the
U.S. Underwriters in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) If the Company has elected not to rely upon Rule 430A, the
initial public offering price per share for the Initial U.S. Shares and the
purchase price per share for the Initial U.S. Shares to be paid by the several
U.S. Underwriters shall be agreed upon and set forth in the U.S. Price
Determination Agreement, dated the date hereof, and an amendment to the
Registration Statement containing such per share price information will be filed
before the Registration Statement becomes effective.
(d) If the Company has elected to rely upon Rule 430A, the
initial public offering price per share for the Initial U.S. Shares and the
purchase price per share for the Initial U.S. Shares to be paid by the several
U.S. Underwriters shall be agreed upon and set forth in the U.S. Price
Determination Agreement. In the event that the U.S. Price Determination
Agreement has not been executed by the close of business on the fourteenth
business day following the date on which the Registration Statement becomes
18
effective, this Agreement shall terminate forthwith, without liability of any
party to any other party except that Sections 7 and 8 shall remain in effect.
(e) In addition, on the basis of the representations,
warranties and covenants herein contained, and subject to the terms and
conditions herein set forth, the Company and the Selling Stockholder hereby
grant options to the Underwriters, severally and not jointly, to purchase up to
an additional 1,440,000 shares of Common Stock at the same purchase price per
share as shall be applicable to the Initial U.S. Shares, of which 1,152,000
shares shall be the pro rata portion of the U.S. Underwriters (consisting of
1,032,000 and 120,000 shares of Common Stock from the Company and the Selling
Stockholder, respectively) and 288,000 shares shall be the pro rata portion of
the Managers. The option hereby granted to the U.S. Underwriters will expire 30
days after the date upon which the Registration Statement becomes effective or,
if the Company has elected to rely upon Rule 430A, the date of the U.S. Price
Determination Agreement, and, in any case, may be exercised in whole or from
time to time in part only for the purpose of covering over-allotments that may
be made in connection with the offering and distribution of the Initial Shares
upon delivery of notice by the U.S. Representatives and the Lead Managers to the
Company setting forth the number of Option Shares as to which the several U.S.
Underwriters are exercising the option, and the time and date of payment and
delivery thereof. Such time and date of delivery (the "Date of Delivery") shall
be determined by you but shall not be later than three full business days after
the exercise of such option, nor in any event prior to the Closing Time, unless
otherwise agreed by Xxxxxxx Xxxxx and the Company. If the option is exercised as
to all or any portion of the Option Shares, the U.S. Option Shares as to which
the option is exercised shall be purchased by the U.S. Underwriters, severally
and not jointly, in the respective proportions that bear the same relationship
to the number of U.S. Option Shares to be purchased at the Date of Delivery as
the number of Initial U.S. Shares set forth opposite the name of each U.S.
Underwriter in Schedule A hereto bears to the total number of Initial U.S.
Shares (such proportions are hereinafter referred to as each U.S. Underwriter's
"underwriting obligation proportion").
(f) Payment of the purchase price for, and delivery of
certificates for, the Initial U.S. Shares shall be made at the offices of Fried,
Xxxxx, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as shall be agreed upon by the Company, the Selling
Stockholder and you, at 10:00 A.M. (New York time) either (x) on the third full
business day after the effective date of the Registration Statement, or (y) if
the Company has elected to rely upon Rule 430A, on the third full business day
after execution of the U.S. Price Determination Agreement (unless, in either
case, postponed pursuant to Section 11 or 12), or at such other time not more
than ten full business days thereafter as you, the Company and the Selling
Stockholder shall determine (such date and time of payment and delivery being
herein called the "Closing Time"). In addition, in the event that any or all of
the U.S. Option Shares are
19
purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Shares shall be made at the
offices of Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx set forth above, or at such
other place as the Company and you shall determine, on the Date of Delivery as
specified in the notice from you to the Company. Payment shall be made to the
Selling Stockholder and the Company by certified or official bank check or
checks or wire transfer in New York Clearing House funds payable to the order of
the Company and to the Selling Stockholder, as the case may be, against delivery
to you for the respective accounts of the several U.S. Underwriters of
certificates for the U.S. Shares to be purchased by them.
(g) Certificates for the Initial U.S. Shares and U.S. Option
Shares to be purchased by the U.S. Underwriters shall be in such denominations
and registered in such names as you may request in writing at least one full
business day before the Closing Time or the Date of Delivery, as the case may
be. The certificates for the Initial U.S. Shares and U.S. Option Shares will be
made available in New York City for examination and packaging by you not later
than 3:00 P.M. (New York time) on the last business day prior to the Closing
Time or the Date of Delivery, as the case may be.
(h) It is understood that each U.S. Underwriter has authorized
the U.S. Representatives, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the U.S. Shares that it has agreed
to purchase. You, individually and not as U.S. Representatives, may (but shall
not be obligated to) make payment of the purchase price for the U.S. Shares or
U.S. Option Shares to be purchased by any U.S. Underwriter whose check or checks
shall not have been received by the Closing Time or the Date of Delivery, as the
case may be.
(i) The several and not joint obligations of the Company and
the Selling Stockholder, to sell to each U.S. Underwriter the Initial U.S.
Shares, the obligation of the Company to sell to each U.S. Underwriter the U.S.
Option Shares, respectively, and the several and not joint obligations of the
U.S. Underwriters to purchase and pay for the U.S. Shares, upon the terms and
subject to the conditions of this Agreement, are subject to the concurrent
closing of the sale of the International Shares and the International Option
Shares, respectively, to the Managers pursuant to the terms of the International
Purchase Agreement.
Section 3. Certain Covenants of the Company. The Company
covenants with each U.S. Underwriter as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and, if the Company elects to rely
upon Rule 430A and subject to Section 3(b), will comply with the requirements of
Rule 430A and will notify you promptly, (i) when the Registration Statement, or
any post-effective amendment to
20
the Registration Statement, shall have become effective, or any supplement to
the Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission to amend the Registration Statement, to amend or supplement any
Prospectus or for additional information and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Offered Shares for
offering or sale in any jurisdiction, or of the institution or threatening of
any proceedings for any of such purposes. The Company will make every reasonable
effort to prevent the issuance of any such stop order or of any order preventing
or suspending such use and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment. If the Company elects to rely on Rule
434 under the 1933 Act Regulation, the Company will use an abbreviated term
sheet that complies with the requirements of Rule 434 under the 1933 Act
Regulations. If the Company elects not to rely on Rule 434, the Company will
provide the U.S. Underwriters with copies of the U.S. Prospectus, in such number
as the U.S. Underwriters may reasonably request, and file or transmit for filing
with the Commission such U.S. Prospectus in accordance with Rule 424(b) of the
1933 Act Regulations by the close of business in New York on the business day
immediately succeeding the date of the U.S. Price Determination Agreement. If
the Company elects to rely on Rule 434 of the 1933 Act Regulations, the Company
will provide the U.S. Underwriters with copies of the abbreviated term sheet, in
such number as the U.S. Underwriters may reasonably request, and file or
transmit for filing with the Commission a U.S. Prospectus complying with Rule
434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the 1933
Act Regulations by the close of business in New York or the business day
immediately succeeding the date of the U.S. Price Determination Agreement.
(b) The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement thereto,
or any document incorporated by reference therein (i) if the Company has not
elected to rely upon Rule 430A, to the Prospectuses or (ii) if the Company has
elected to rely upon Rule 430A, to either the prospectus included in the
Registration Statement at the time it becomes effective or to the Prospectuses,
of which you shall not have previously been advised and furnished a copy or to
which you or Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the U.S.
Underwriters shall reasonably object.
(c) The Company has furnished or will furnish to you and your
counsel, without charge, signed copies of the Registration Statement (as
originally filed) and of all amendments thereto (including exhibits filed
therewith and documents incorporated by reference therein), whether filed before
or after the Registration Statement becomes effective, copies of all exhibits
and documents filed therewith, and signed copies of all consents and
certificates of experts, and has furnished or will furnish to you, for each
21
other U.S. Underwriter, one conformed copy of the Registration Statement as
originally filed and each amendment thereto.
(d) The Company will deliver to each U.S. Underwriter, without
charge, from time to time until the effective date of the Registration Statement
(or, if the Company has elected to rely upon Rule 430A, until the time the U.S.
Price Determination Agreement is executed and delivered), as many copies of each
preliminary prospectus as such U.S. Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will deliver to each U.S. Underwriter, without charge, as
soon as the Registration Statement shall have become effective (or, if the
Company has elected to rely upon Rule 430A, as soon as practicable after the
U.S. Price Determination Agreement has been executed and delivered) and
thereafter from time to time as requested during the period when the
Prospectuses are required to be delivered under the 1933 Act, such number of
copies of the Prospectuses (as supplemented or amended) as such U.S. Underwriter
may reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Offered
Shares as contemplated in this Agreement, the International Purchase Agreement
and the Prospectuses. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Offered Shares any event
shall occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the U.S. Underwriters, to amend the Registration
Statement or amend or supplement any Prospectus in order that the Prospectuses
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the 1933 Act, the 1933
Act Regulations, the 1934 Act or the 1934 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectuses comply with
such requirements.
(f) The Company will endeavor, in cooperation with the U.S.
Underwriters, to qualify the Offered Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions as you may
designate and to maintain such qualifications in effect for a period of not less
than one year from the effective date of the Registration Statement; provided,
however, that neither the Company nor any Subsidiary shall be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so
22
qualified or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Offered Shares have been qualified as above provided.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations), covering
a period of 12 months beginning after the effective date of the Registration
Statement but not later than the first day of the Company's fiscal quarter next
following such effective date.
(h) For a period of 90 days from the date hereof, the Company
will not, without the prior written consent of Xxxxxxx Xxxxx on behalf of the
Underwriters, directly or indirectly, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock, other than to
(i) the U.S. Underwriters pursuant to this Agreement and the Managers pursuant
to the International Purchase Agreement and (ii) eligible participants in the
Company's employee stock plans pursuant to the terms thereof as in effect on the
date hereof.
(i) The Company will use its best efforts to effect the
listing of the Common Stock on the New York Stock Exchange on the date of the
U.S. Price Determination Agreement.
(j) The Company, during the period when the Prospectuses are
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Sections 13, 14
or 15 of the 1934 Act subsequent to the time the Registration Statement becomes
effective.
(k) For a period of five years after the Closing Time, the
Company will furnish to you and each U.S. Underwriter that so requests copies of
all annual reports, quarterly reports and current reports filed with the
Commission on Forms 10-K and 10-Q and, to the extent requested, Form 8-K or such
other similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company to its
stockholders generally.
(l) If the Company has elected to rely upon Rule 430A, it will
take such steps as it deems necessary to ascertain promptly whether the forms of
prospectuses transmitted for filing under Rule 424(b) were received for filing
by the Commission and, in the event that they were not, it will promptly file
such prospectuses.
23
(m) The Company has complied, and will comply, with all of the
provisions of Florida H.B. 1771, as codified in sec. 517.075 Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to issuers
or their affiliates doing business with the government of Cuba or with any
person or affiliate located in Cuba.
(n) The Company will use the net proceeds received by it from
the sale of the Offered Shares in the manner specified in the Prospectuses under
the caption "Use of Proceeds."
Section 4. Payment of Expenses. (a) The Company will pay all
expenses incident to the performance of its obligations under this Agreement and
the International Purchase Agreement, including (i) the printing and filing of
the Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the
Prospectuses and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriters, (ii) the copying or printing, as
applicable, and distribution of this Agreement (including the U.S. Price
Determination Agreement), the Intersyndicate Agreement among the U.S.
Underwriters and the Managers, the International Purchase Agreement (including
the International Price Determination Agreement), the Agreement among Managers,
the certificates for the Offered Shares and a survey of state securities or blue
sky laws (the "Blue Sky Survey"), (iii) the delivery of the certificates for the
Offered Shares to the Underwriters, including any capital duties, stamp duties
and stock or other transfer taxes payable upon the sale of the Offered Shares to
the Underwriters and the transfer of the Offered Shares between the U.S.
Underwriters and the Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisers, (v) the qualification of the Offered
Shares under the applicable securities laws in accordance with Section 3(f) and
any filing fees for review of the offering with the National Association of
Securities Dealers, Inc., including filing fees and reasonable fees and
disbursements of Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the
Underwriters in connection therewith and in connection with the Blue Sky Survey,
(vi) the fees and expenses of any transfer agent or registrar for the Offered
Shares, and (vii) the listing fees and expenses incurred in connection with
listing the Offered Shares on the New York Stock Exchange, if any.
(b) The Selling Stockholder will pay any transfer taxes
attributable to the sale by the Selling Stockholder of Initial U.S. Shares and
any fees and disbursements of such Selling Stockholder's counsel, if any, not
paid or payable by the Company pursuant to Section 4(a) or otherwise.
(c) If this Agreement is terminated by you in accordance with
the provisions of Section 5, 10(a)(i) or 12, the Company shall reimburse the
U.S. Underwriters through you for all of their reasonable out-of-pocket
expenses, including the
24
reasonable fees and disbursements of Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as
counsel for the U.S. Underwriters.
Section 5. Conditions of U.S. Underwriters' Obligations. In
addition to the execution and delivery of the U.S. Price Determination
Agreement, the obligations of the several U.S. Underwriters to purchase and pay
for the U.S. Shares that they have respectively agreed to purchase hereunder
(including any U.S. Option Shares as to which the option granted in Section 2(e)
has been exercised in the event the Date of Delivery determined by you is the
same as the Closing Time) are subject to the accuracy of the representations and
warranties of the Company and the Selling Stockholder contained herein
(including those contained in the U.S. Price Determination Agreement) or in
certificates of any officer of the Company or any Subsidiary and the Selling
Stockholder delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Stockholder of their respective obligations
hereunder in all material respects, and to the following further conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:00 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing with the approval of a majority in interest of the
several U.S. Underwriters; and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company, shall have
been threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the U.S.
Underwriters. If the Company has elected to rely upon Rule 430A, Prospectuses
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) At the Closing Time, you shall have received the signed
opinion of Xxxxxxx X. Xxxxxxxxxxx, Esq., Vice President, General Counsel and
Secretary for the Company, dated as of the Closing Time, in the form attached
hereto as Exhibit B, together with reproduced copies of such opinions for each
of the U.S. Underwriters, and in form and substance satisfactory to counsel for
the U.S. Underwriters.
(c) At the Closing Time, you shall have received the signed
opinions of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx, counsel for the Company, dated
as of the Closing Time, in the forms attached hereto as Exhibit C, together with
reproduced copies of such
25
opinions for each of the U.S. Underwriters, in form and substance satisfactory
to counsel for the U.S. Underwriters.
(d) At the Closing Time, you shall have received the signed
opinion of counsel for the Selling Stockholder reasonably acceptable to you, as
requested by the U.S. Underwriters, dated as of the Closing Time, in the form
attached hereto as Exhibit D, together with reproduced copies of such opinions
for each of the U.S. Underwriters, and in form and substance satisfactory to
counsel for the U.S. Underwriters.
(e) At the Closing Time, you shall have received the signed
opinion of Xxxxxx, Xxxxxxxxx & Xxxxxxxxx, special license and trademark counsel
for the Company reasonably acceptable to you, as requested by the U.S.
Underwriters, dated as of the Closing Time, in the form attached hereto as
Exhibit E, together with reproduced copies of such opinions for each of the U.S.
Underwriters, and in form and substance satisfactory to counsel for the U.S.
Underwriters.
(f) At the Closing Time, you shall have received the favorable
opinion of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the U.S.
Underwriters, dated as of the Closing Time, together with reproduced copies of
such opinion for each of the other U.S. Underwriters, to the effect that the
opinions delivered pursuant to Sections 5(b), (c), (d) and (e) appear on their
face to be appropriately responsive to the requirements of this Agreement
except, specifying the same, to the extent waived by you, and with respect to
the legal existence of the Company, the Offered Shares, this Agreement and the
International Purchase Agreement, the Registration Statement, the Prospectuses
and such other related matters as you may require. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the federal law of the United States, the law of the State of New York and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to you. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers or other appropriate representatives of
the Company, the Subsidiaries and the Selling Stockholder and certificates of
public officials.
(g) At the Closing Time, (i) the Registration Statement and
the Prospectuses, as they may then be amended or supplemented, shall conform in
all material respects to the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations, the Company shall have
complied in all material respects with Rule 430A (if it shall have elected to
rely thereon), the Registration Statement, as it may then be amended or
supplemented, shall not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements in the Registration Statement not misleading, and the Prospectuses,
as they may be amended or supplemented, shall not contain an untrue
26
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements in the Prospectuses, in light
of the circumstances under which they were made, not misleading, (ii) there
shall not have been, since the respective dates as of which information is given
in the Prospectuses, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its Subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company, threatened against
the Company or any Subsidiary that would be required to be set forth in the
Prospectuses other than as set forth therein and no proceedings shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Subsidiary before or by any federal, state or other commission, board or
administrative agency that could reasonably be expected to materially and
adversely affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its Subsidiaries, considered as
one enterprise, other than as set forth in the Prospectuses, (iv) the Company
shall have complied with all agreements and satisfied all conditions on their
parts to be performed or satisfied at or prior to the Closing Time, and (v) the
other representations and warranties of the Company set forth in Section 1(a)
shall be accurate as though expressly made at and as of the Closing Time. At the
Closing Time, you shall have received a certificate of the President or Vice
President and the chief financial officer or chief accounting officer of the
Company, dated as of the Closing Time, to such effect. As used in Section
5(g)(ii) and (iii), the term "Prospectuses" means the Prospectuses in the form
first used to confirm sales of the Offered Shares.
(h) At the Closing Time, (i) the representations and
warranties of the Selling Stockholder set forth in Section 1(b) and in any
certificates by or on behalf of the Selling Stockholder delivered pursuant to
the provisions hereof shall be accurate as though expressly made at and as of
the Closing Time, (ii) the Selling Stockholder shall have performed its
obligations under this Agreement and the International Purchase Agreement in all
material respects and (iii) you shall have received a certificate of the Selling
Stockholder to the effect that the representations and warranties of the Selling
Stockholder set forth in 1(b) are accurate as though expressly made at and as of
the Closing Time.
(i) At the time that this Agreement is executed by the
Company, you shall have received from Ernst & Young LLP ("E&Y") and Price
Waterhouse LLP letters dated such date, in form and substance satisfactory to
you, together with signed or reproduced copies of such letter for each of the
other U.S. Underwriters, confirming that they are independent public accountants
with respect to the Company within the meaning of the 1933 Act and the
applicable published 1933 Act Regulations, and stating in effect that (in the
case of E&Y, as to clause (i) and to the extent applicable clause (iii) only):
27
(i) in their opinion, the audited financial
statements and the related financial statement schedules
included or incorporated by reference in the Registration
Statement and the Prospectuses which were audited by them
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act
Regulations;
(ii) on the basis of procedures (but not an
examination in accordance with generally accepted auditing
standards) consisting of a reading of the minutes of all
meetings of the shareholders and directors of the Company and
its Subsidiaries and each committee of the board of directors
of each of the Company and its Subsidiaries, inquiries of
certain 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) at September 2, 1995 and at a specified
date not more than five days prior to the date of this
Agreement, there was (i) any change in the consolidated
stockholders' equity or capital stock or any decrease in
consolidated current assets, with any current or total assets
or (ii) any increase in long-term debt of the Company and its
Subsidiaries as compared with the amounts shown in the latest
balance sheet included or incorporated by reference in the
Registration Statement, except in each case for changes,
decreases or increases which the Registration Statement
discloses have occurred or may occur; or
(B) for the period from January 7, 1995 to
September 2, 1995 and to a specified date not more than five
days prior to the date of this Agreement, there was any
decrease in consolidated net revenues, income from continuing
operations before income taxes, or in the total or per-share
amounts of consolidated net income or in other amounts
specified by the U.S. Representatives, in each case as
compared with the comparable period in the preceding year,
except in each case, for any decreases that the Registration
Statement discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in
clause (ii) above, they have performed other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages, numerical data and financial information
appearing or incorporated by reference in the Registration
Statement, which have previously been specified by you and
which shall be specified in such letter, and have compared
certain of such items with, and
28
have found such items to be in agreement with, the accounting
and financial records of the Company and its Subsidiaries.
(j) At the Closing Time, you shall have received from Ernst &
Young LLP and Price Waterhouse letters, in form and substance satisfactory to
you and dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letters furnished pursuant to Section 5(i) above, except
that (i) the specified date referred to shall be a date not more than five days
prior to the Closing Time. In the event the Company relies on Rule 430A and the
final Prospectuses furnished to the Underwriters in connection with the offering
of the Offered Shares differ from the Prospectuses included in the Registration
Statement at the time of effectiveness, such letter shall update the procedures
referred to in clauses 5(i) above.
(k) At the Closing Time, you shall have received a certificate
of the Chief Financial Officer of the Company as to certain agreed upon
accounting matters not covered by the letters referred to in clauses 5(i) and
5(j) above.
(l) At the Closing Time, counsel for the Underwriters shall
have been furnished with all such documents, certificates and opinions as they
may reasonably request for the purpose of enabling them to pass upon the
issuance and sale of the Offered Shares as contemplated in this Agreement and
the International Purchase Agreement and the matters referred to in Section 5(g)
and in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company and the Selling
Stockholder, the performance of any of the covenants of the Company and the
Selling Stockholder, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company and the Selling Stockholder
at or prior to the Closing Time in connection with the authorization, issuance
and sale of the Offered Shares as contemplated in this Agreement and the
International Purchase Agreement shall be reasonably satisfactory in form and
substance to you and to Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for
the Underwriters.
(m) The Offered Shares shall have been duly authorized for
listing by the New York Stock Exchange in the date of the U.S. Price
Determination Agreement, subject only to official notice of issuance thereof.
(n) The Selling Stockholder shall have delivered to you on or
prior to the Closing Time a properly completed and executed United States
Treasury Department Form W/9 (or other applicable form or statement specified by
Treasury Department regulations).
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be
29
terminated by you on notice to the Company and the Selling Stockholder at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4
herein. Notwithstanding any such termination, the provisions of Section 7 and 8
herein shall remain in effect.
Section 6. Conditions to Purchase of U.S. Option Shares. In
the event that the U.S. Underwriters exercise their option granted in Section 2
to purchase all or any of the U.S. Option Shares and the Date of Delivery
determined by you pursuant to Section 2 is later than the Closing Time, the
obligations of the several U.S. Underwriters to purchase and pay for the U.S.
Option Shares that they shall have respectively agreed to purchase pursuant to
this Agreement are subject to the accuracy of the representations and warranties
of the Company and the Selling Stockholder herein contained, to the performance
of the Company and the Selling Stockholder of their respective obligations in
all material respects hereunder and to the following further conditions:
(a) The Registration Statement shall remain effective at the
Date of Delivery, and at the Date of Delivery no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company or the Selling
Stockholder shall have been threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the reasonable satisfaction of Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as
counsel for the U.S. Underwriters.
(b) At the Date of Delivery, the provisions of Section 5(g)
shall have been complied with at and as of the Date of Delivery and, at the Date
of Delivery, you shall have received a certificate of the President or a Vice
President and chief financial officer or chief accounting officer of the Company
with respect to the provisions of Section 5(g), dated as of the Date of
Delivery, to such effect.
(c) At the Date of Delivery, the provisions of Section 5(h)
shall have been complied with at and as of the Date of Delivery.
(d) At the Date of Delivery, you shall have received the
favorable opinions of Xxxxxxx X. Xxxxxxxxxxx, Esq.,Vice President, General
Counsel and Secretary of the Company and, Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx,
counsel for the Company together with reproduced copies of such opinion for each
of the other U.S. Underwriters in form and substance satisfactory to Fried,
Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the U.S. Underwriters, dated as
of the Date of Delivery, relating to the Option Shares and otherwise to the same
effect as the opinions required by Sections 5(b), (c), (d) and (e).
30
(e) At the Date of Delivery, you shall have received the
favorable opinion of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, counsel for the
U.S. Underwriters, dated as of the Date of Delivery, relating to the U.S. Option
Shares and otherwise to the same effect as the opinion required by Section 5(f).
(f) At the Date of Delivery, you shall have received letters
from Xxxxx & Young LLP in form and substance satisfactory to you and dated as of
the Date of Delivery, to the effect that they reaffirm the statements made in
the letter furnished pursuant to Section 5(i), except that the specified date
referred to shall be a date not more than five days prior to the Date of
Delivery.
(g) At the Date of Delivery, Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx &
Xxxxxxxx as counsel for the U.S. Underwriters shall have been furnished with all
such documents, certificates and opinions as they may reasonably request for the
purpose of enabling them to pass upon the sale of the Option Shares as
contemplated in this Agreement and the matters referred to in Section 6(d) and
in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company, the performance of any
of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all actions taken by the Company at or prior to the Date
of Delivery in connection with the authorization, issuance and sale of the
Option Shares as contemplated in this Agreement shall be reasonably satisfactory
in form and substance to you and to Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as
counsel for the U.S. Underwriters.
Section 7. Indemnification. (a) The Company agrees to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter within the meaning of Section 15 of the 1933 Act
to the extent and in the manner set forth in clauses (i), (ii) and (iii) below.
In addition, subject to subsection (d) of this Section, the Selling Stockholder,
severally and not jointly, agrees to indemnify and hold harmless each U.S.
Underwriter and each person, if any, who controls any U.S. Underwriter within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of an
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, if applicable,
or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or
any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements
31
therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company and the
Selling Stockholder; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to the last sentence of Section
7(c), fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, if applicable, or any preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by any U.S. Underwriter expressly
for use in the Registration Statement (or any amendment thereto) and (ii) such
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any U.S. Underwriter (or any persons controlling such U.S.
Underwriter) from whom the person asserting such loss, claim, damage or
liability purchased the Offered Shares which are the subject thereof if such
person did not receive a copy of the U.S. Prospectus (or the U.S. Prospectus as
amended or supplemented) at or prior to the confirmation of the sale of such
Offered Shares to such person in any case where such delivery is required by the
1933 Act and the untrue statement or omission or alleged untrue statement or
omission of a material fact contained in such preliminary prospectus was
corrected in the U.S. Prospectus (or the U.S. Prospectus as amended or
supplemented).
In making a claim for indemnification under this Section 7
(other than pursuant to clause (a)(iii) of this Section 7) or contribution under
Section 8 by the Company or the Selling Stockholder, the indemnified parties may
proceed against either (i) both the Company and the Selling Stockholder or (ii)
the Company only, but may not
32
proceed solely against the Selling Stockholder. In the event that the
indemnified parties are entitled to seek indemnity or contribution hereunder
against any loss, liability, claim, damage and expense incurred with respect to
a final judgment from a trial court then, as a precondition to any indemnified
party obtaining indemnification or contribution from the Selling Stockholder,
the indemnified parties shall first obtain a final judgment from a trial court
that such indemnified parties are entitled to indemnity or contribution under
this Agreement with respect to such loss, liability, claim, damage or expense
(the "Final Judgment") from the Company and the Selling Stockholder and shall
seek to satisfy such Final Judgment in full from the Company by making a written
demand upon the Company for such satisfaction. Only in the event such Final
Judgment shall remain unsatisfied in whole or in part 45 days following the date
of receipt by the Company of such demand shall any indemnified party have the
right to take action to satisfy such Final Judgment by making demand directly on
the Selling Stockholder (but only if and to the extent the Company has not
already satisfied such Final Judgment, whether by settlement, release or
otherwise). The indemnified parties may exercise this right to first seek to
obtain payment from the Company and thereafter obtain payment from the Selling
Stockholder without regard to the pursuit by any party of its rights to the
appeal of such Final Judgment. The indemnified parties shall, however, be
relieved of their obligation to first obtain a Final Judgment, seek to obtain
payment from the Company with respect to such Final Judgment or, having sought
such payment, to wait such 45 days after failure by the Company to immediately
satisfy any such Final Judgment if (i) the Company files a petition for relief
under the United States Bankruptcy Code (the "Bankruptcy Code"), (ii) an order
for relief is entered against the Company in an involuntary case under the
Bankruptcy Code, (iii) the Company makes an assignment for the benefit of its
creditors, or (iv) any court orders or approves the appointment of a receiver or
custodian for the Company or a substantial portion of its assets. The foregoing
provisions of this paragraph are not intended to require any indemnified party
to obtain a Final Judgment against the Company or the Selling Stockholder before
obtaining reimbursement of expenses pursuant to clause (a)(iii) of this Section
7. However, the indemnified parties shall first seek to obtain such
reimbursement in full from the Company by making a written demand upon the
Company for such reimbursement. Only in the event such expenses shall remain
unreimbursed in whole or in part 45 days following the date of receipt by the
Company of such demand shall any indemnified party have the right to receive
reimbursement of such expenses from the Selling Stockholder by making written
demand directly on the Selling Stockholder (but only if and to the extent the
Company has not already satisfied the demand for reimbursement, whether by
settlement, release or otherwise). The indemnified parties shall, however, be
relieved of their obligation to first seek to obtain such reimbursement in full
from the Company or, having made written demand therefor, to wait such 45 days
after failure by the Company to immediately reimburse such expenses if (i) the
Company files a petition for relief under the Bankruptcy Code, (ii) an order for
relief is entered against the Company in an involuntary
33
case under the Bankruptcy Code, (iii) the Company makes an assignment for the
benefit of its creditors, or (iv) any court orders or approves the appointment
of a receiver or custodian for the Company or a substantial portion of its
assets.
(b) Each U.S. Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement and, each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act and the Selling
Stockholder against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, if applicable, or any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished to the Company by
such U.S. Underwriter expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, if applicable, or such
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. Any indemnifying party may participate
at its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying party or parties be liable for
the fees and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdictions arising out of the same general allegations or circumstances.
(d) The Selling Stockholder shall not be responsible for the
payment of an amount, pursuant to this Section 7, which exceeds the net proceeds
received by the Selling Stockholder from the sale of the Offered Shares by such
Selling Stockholder hereunder and under the International Purchase Agreement.
34
(e) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding. No indemnifying party shall be liable for any settlement of any
action or claim for monetary damages which an indemnified party may effect
without the written consent of the indemnifying party.
Section 8. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided for
in Section 7 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, subject to the last
paragraph of Section 7(b) hereof, the Company, the Selling Stockholder and the
U.S. Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity incurred by
the Company, the Selling Stockholder and one or more of the U.S. Underwriters,
as incurred, in such proportion that (a) the U.S. Underwriters responsible for
that portion represented by the percentage that the underwriting discount
appearing on the cover page of the U.S. Prospectus in respect of the U.S. Shares
bears to the initial public offering price appearing thereon and (b) the Company
and the Selling Stockholder are severally liable for the balance on the same
basis as each of them would have been obligated to provide indemnification
pursuant to Section 7; provided, further, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls a U.S. Underwriter within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the U.S. Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, the Selling Stockholder and each director, officer or employee
thereof and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company and the Selling Stockholder. Notwithstanding the provisions of this
Section 8, the Selling Stockholder shall not be required to contribute any
amount under this Section 8 in excess of the amount by which the proceeds
received by such Selling Stockholder in connection herewith exceed the aggregate
amount such Selling Stockholder has otherwise paid pursuant hereto and to
Section 7(a).
Section 9. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company, its officers and the Selling Stockholder the
set forth in or made pursuant to this Agreement will remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Company, the Selling Stockholder or any U.S.
35
Underwriter or controlling person and will survive delivery of and payment for
the Offered Shares.
Section 10. Termination of Agreement. (a) You may terminate
this Agreement, by notice to the Company and the Selling Stockholder, at any
time at or prior to the Closing Time (i) if there has been, since the date as of
which information is given in the Prospectuses, any material adverse change, or
any development involving a prospective material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its Subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) if there has occurred any
material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities or other calamity or crisis the effect of
which in each case is such as to make it, in your judgment, impracticable to
market the U.S. Shares or enforce contracts for the sale of the U.S. Shares,
(iii) if trading in any securities of the Company has been suspended by the
Commission or the New York Stock Exchange, or if trading generally on either the
American Stock Exchange or the New York Stock Exchange or in the
over-the-counter market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchanges or by order of the Commission, the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc. or any other governmental authority or (iv) if a banking
moratorium has been declared by either federal or New York authorities. As used
in this Section 10(a), the term "Prospectuses" means the Prospectuses in the
form first used to confirm sales of the Offered Shares.
(b) If this Agreement is terminated pursuant to this Section
10, such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4 hereof. Notwithstanding any such
termination, the provisions of Sections 7 and 8 shall remain in effect.
(c) This Agreement may also terminate pursuant to the
provisions of Section 2(d), with the effect stated in such Section.
Section 11. Default by One or More of the U.S. Underwriters.
If one or more of the U.S. Underwriters shall fail at the Closing Time to
purchase the Initial U.S. Shares that it or they are obligated to purchase
pursuant to this Agreement (the "Defaulted U.S. Shares"), you shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted U.S. Shares in such amounts as may be
agreed upon and upon the terms set forth in this Agreement; if, however, you
have not completed such arrangements within such 24-hour period, then:
36
(a) if the number of Defaulted U.S. Shares does not exceed 10%
of the total number of Initial U.S. Shares to be purchased pursuant to this
Agreement, the non-defaulting U.S. Underwriters shall be obligated to purchase
the full amount thereof in the proportions that their respective Initial U.S.
Shares underwriting obligation proportions bear to the underwriting obligation
proportions of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted U.S. Shares exceeds 10% of the
total number of Initial U.S. Shares, this Agreement shall terminate without
liability on the part of any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section 11 shall relieve any
defaulting U.S. Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company or the Selling
Stockholder shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectuses or in any other documents or arrangements. As used
herein, the term "U.S. Underwriter" includes any person substituted for a U.S.
Underwriter under this Section 11.
Section 12. Default by the Company or the Selling Stockholder.
(a) If the Company shall fail at the Closing Time to sell and deliver the number
of Offered Shares that it is obligated to sell, then this Agreement shall
terminate without any liability on the part of any non-defaulting party except
to the extent provided in Section 4 and except that the provisions of Sections 7
and 8 shall remain in effect. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
(b) If the Selling Stockholder shall fail at the Closing Time
to sell and deliver the number of Offered Shares that she is obligated to sell,
then the U.S. Representatives may, at their option, by notice to the Company and
the Selling Stockholder either (a) terminate this Agreement without any
liability on the part of any non-defaulting party except to the extent provided
in Section 4 and except the provisions of Sections 7 and 8 shall remain in
effect or (b) elect to purchase the Offered Shares which the non-defaulting
party has agreed to sell thereunder. No action taken pursuant to this Section
shall relieve the Selling Stockholder from liability, if any, in respect of such
default.
Section 13. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to you or the U.S. Underwriters shall be directed to
you, c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
37
Incorporated at Xxxxxxx Xxxxx World Headquarters, North Tower, World Financial
Center, New York, New York 10261, attention of Xxx X. XxxXxxxxxx with a copy to
Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, XX
00000, attention of Xxxxxxx Xxxx Xxxxx, Esq.; and notices to the Company and the
selling stockholder shall be directed to the Company at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, xxxxxxxxx xx Xxxxxxx P. Silverstein, Esq. with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
attention of Xxxxxxx X. Xxxxxxx, Esq.
Section 14. Parties. This Agreement is made solely for the
benefit of the several U.S. Underwriters, the Selling Stockholder, the Company,
and, to the extent expressed, any person controlling the Company, or any of the
U.S. Underwriters, and the directors of the Company, the officers of the Company
who have signed the Registration Statement, and the executors, administrators,
successors and assigns of such persons and, no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser, as such purchaser, from any of the
several U.S. Underwriters of the U.S. Shares. All of the obligations of the U.S.
Underwriters hereunder are several and not joint.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS. SPECIFIED TIMES OF THE DAY REFER TO NEW YORK CITY TIME.
Section 16. Jurisdiction. Each of the undersigned hereby
irrevocably submits in any suit, action or proceeding arising out of or in
relation to this Agreement, or any of the transactions contemplated hereby, to
the jurisdiction and venue of any federal or state court in the Borough of
Manhattan, City of New York, State of New York.
Section 17. Counterparts. This Agreement may be executed in
one or more counterparts and, when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
Section 18. Representation of Underwriters. You will act for
the several U.S. Underwriters in connection with the transactions contemplated
by this Agreement, and any action under or in respect of this Agreement taken by
you as U.S. Representatives will be binding upon all U.S. Underwriters.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument
38
will become a binding agreement among the Company, the Selling Stockholder and
the several U.S. Underwriters in accordance with its terms.
Very truly yours,
THE WARNACO GROUP, INC.
By________________________
Name:
Title:
________________________
Xxxxx X. Xxxxxxx
Confirmed and accepted as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXXXXX & CO., INC.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By _____________________________
Name:
Title:
For themselves and as U.S. Representatives of the
other U.S. Underwriters named in Schedule A.
39
SCHEDULE A
Number of Initial
U.S. Shares to
U.S. Underwriters be Purchased
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated.......................................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.....................................
Bear, Xxxxxxx & Co. Inc.................................................................
Xxxxxx Xxxxxxx & Co. Incorporated.......................................................
Xxxxxxxxxxx & Co., Inc..................................................................
The Buckingham Research Group Incorporated .............................................
X.X. Xxxxxxx & Sons, Inc................................................................
Xxxxxx Brothers Inc.....................................................................
X.X. Xxxxxx Securities Inc..............................................................
Xxxxx Xxxxxx Inc........................................................................
Sutro & Co. Incorporated................................................................
Xxxxxx Xxxxxxx Incorporated.............................................................
UBS Securities Inc......................................................................
X.X. Xxxxxxxx & Co......................................................................
Interstate/Xxxxxxx Xxxx Corporation.....................................................
Xxxxx Xxxxxxx Inc.......................................................................
The Xxxxxxxx-Xxxxxxxx Company, Inc......................................................
Xxxxxx & Xxxxxxx, Inc...................................................................
Xxxxxx Xxxxxxx & Co., Inc...............................................................
Wheat, First Securities, Inc............................................................
Total........................................................................... 7,680,000
=========
THE WARNACO GROUP, INC.
(a Delaware corporation)
7,680,000 Shares of Common Stock
U.S. PRICE DETERMINATION AGREEMENT
__________, 1995
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXXXXX & CO., INC.
As Representatives of the several U.S. Underwriters
c/x Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Reference is made to the U.S. Purchase Agreement dated
___________, 1995 (the "U.S. Purchase Agreement") among The Warnaco Group, Inc.,
a Delaware corporation (the "Company"), Xxxxx X. Xxxxxxx, Chairman, President
and Chief Executive Officer of the Company (the "Selling Stockholder"), and the
several U.S. Underwriters named in Schedule A thereto and hereto (the "U.S.
Underwriters"), for whom Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Bear, Xxxxxxx & Co. Inc.,
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxxxxxx & Co., Inc. are acting as
representatives (the "U.S. Representatives"). The U.S. Purchase Agreement
provides for the purchase by the U.S. Underwriters from the Company and the
Selling Stockholder, subject to the terms and conditions set forth therein, of
an aggregate of 7,680,000 shares (the "Initial U.S. Shares") of the Company's
common stock, par value $.01 per share. This Agreement is the U.S. Price
Determination Agreement referred to in the U.S. Purchase Agreement.
Pursuant to Section 2 of the U.S. Purchase Agreement, the undersigned
agree with the U.S. Representatives as follows:
1. The initial public offering price per share for the Initial
U.S. Shares shall be $_________.
2. The purchase price per share for the Initial U.S. Shares to
be paid by the several U.S. Underwriters shall be $_______, representing an
amount equal to the initial public offering price set forth above, less
$________ per share.
The Company represents and warrants to each of the U.S. Underwriters
that the representations and warranties of the Company set forth in Section 1(a)
of the U.S. Purchase Agreement are accurate as though expressly made at and as
of the date hereof.
The Selling Stockholder represents and warrants to each of the U.S.
Underwriters that the representations and warranties of the Selling Stockholder
set forth in Section 1(b) of the U.S. Purchase Agreement are accurate as though
expressly made at and as of the date hereof.
As contemplated by Section 2 of the U.S. Purchase Agreement,
attached as Schedule A is a completed list of the several U.S. Underwriters,
which shall be part of this Agreement and the U.S. Purchase Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts and together with the U.S. Purchase
Agreement shall be a binding agreement among the U.S. Underwriters, the Company
and the Selling Stockholder in accordance with its terms and the terms of the
U.S. Purchase Agreement.
Very truly yours,
THE WARNACO GROUP, INC.
By: ______________________
Name:
Title
-----------------------
Xxxxx X. Xxxxxxx
Confirmed and accepted as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXXXXXX & CO., INC.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: _______________________________________
Name:
Title:
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A attached hereto.
SCHEDULE A
Number of Initial
U.S. Shares to
U.S. Underwriters be Purchased
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated.......................................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.....................................
Bear, Xxxxxxx & Co. Inc.................................................................
Xxxxxx Xxxxxxx & Co. Incorporated.......................................................
Xxxxxxxxxxx & Co., Inc..................................................................
The Buckingham Research Group Incorporated .............................................
X.X. Xxxxxxx & Sons, Inc................................................................
Xxxxxx Brothers Inc.....................................................................
X.X. Xxxxxx Securities Inc..............................................................
Xxxxx Xxxxxx Inc........................................................................
Sutro & Co. Incorporated................................................................
Xxxxxx Xxxxxxx Incorporated.............................................................
UBS Securities Inc......................................................................
X.X. Xxxxxxxx & Co......................................................................
Interstate/Xxxxxxx Xxxx Corporation.....................................................
Xxxxx Xxxxxxx Inc.......................................................................
The Xxxxxxxx-Xxxxxxxx Company, Inc......................................................
Xxxxxx & Xxxxxxx, Inc...................................................................
Xxxxxx Xxxxxxx & Co., Inc...............................................................
Wheat, First Securities, Inc............................................................
Total........................................................................... 7,680,000
=========
Annex A
Agreements
