Exhibit 1.1
Xxxxxx Associates, Inc.
[ ] Shares of Class A Common Stock,
par value $0.01 per share
-------------
Underwriting Agreement
[ ], 2003
Xxxxxxx, Sachs & Co.,
Banc of America Securities LLC,
Citigroup Global Markets Inc.,
X.X. Xxxxxx Securities Inc.,
UBS Securities LLC and
Wachovia Capital Markets Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Xxxxxx Associates, Inc., a Delaware corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to issue
and sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of [ ] shares (the "Firm Shares") and, at the election of the
Underwriters, up to [ ] additional shares (the "Optional Shares") of Class A
Common Stock, par value $0.01 per share ("Class A Common Stock") of the Company
(the Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 3 hereof are herein collectively called the "Shares").
The Selling Stockholders own shares of Class A Common Stock, class B
common stock, par value $0.01 per share ("Class B Common Stock") and shares of
class C common stock, par value $0.01 per share ("Class C Common Stock") of the
Company, which shares have been deposited with Xxxxx Xxxxxx, a Division of
Citigroup Global Markets Inc. under the custody agreements heretofore furnished
to you (as amended from time to time, each a "Custody Agreement"). Shares of
Class B Common Stock and the Class C Common Stock are convertible into shares of
Class A Common Stock on a one-to-one basis. It is understood that immediately
prior to the consummation of the transactions contemplated hereby a number of
shares of Class B Common Stock (the "Class B Shares") and shares of class C
common stock (the "Class C Shares") will be converted into a number of shares of
Class A Common Stock equal to the
Shares being sold hereunder in accordance with the provisions of the Company's
Amended and Restated Certificate of Incorporation.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-105560) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto but including
all documents incorporated by reference in the prospectus contained therein, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which became effective upon filing, no other document with respect to
the Initial Registration Statement or document incorporated by reference therein
has heretofore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto, or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or, to the
Company's knowledge, threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission under the
Act is hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including (i) the information contained
in the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 6(a) hereof and deemed by virtue
of Rule 430A under the Act to be part of the Initial Registration Statement at
the time it was declared effective and (ii) the documents incorporated by
reference in the prospectus contained in the Initial Registration Statement at
the time such part of the Initial Registration Statement became effective, each
as amended at the time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the Registration
Statement);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof,
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conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter through Xxxxxxx, Xxxxx & Co. expressly
for use therein or by a Selling Stockholder expressly for use in the preparation
of the answers therein to Item 7 of Form S-3;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx, Sachs &
Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder, including with
respect to documents which are required to be described in the Registration
Statement and the Prospectus or filed as an exhibit to the Registration
Statement, and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by any Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Item 7 of Form
S-3;
(e) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus that has resulted
or would result in a material adverse change, or any development involving a
prospective material adverse change,
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in the business, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect"); and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any Material Adverse Effect, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as have not
had and would not have, individually or in the aggregate, a Material Adverse
Effect; and any real property and buildings held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as have not had and would not have, individually or in the
aggregate, a Material Adverse Effect;
(g) (i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction except where the failure to be so qualified or in good
standing would not result in a Material Adverse Effect; and (ii) each corporate
subsidiary of the Company (each a "Corporate Subsidiary"), each partnership
subsidiary of the Company (each a "Partnership Subsidiary") and each limited
liability company subsidiary of the Company (each a "LLC Subsidiary") has been
duly incorporated or organized, as the case may be, and is validly existing as a
corporation, partnership or limited liability company, as the case may be, in
good standing under the laws of its jurisdiction of incorporation or
organization, as the case may be, with the power and authority (corporate,
partnership or limited liability company, as the case may be, and other) to own
its properties and conduct its business as described in the Prospectus, except
where any failure to be so duly incorporated or organized or so qualified or in
good standing, individually or in the aggregate, would not result in a Material
Adverse Effect;
(h) (i) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the capital stock contained in
the Prospectus; and (ii) all of the issued shares of capital stock of each
Corporate Subsidiary of the Company, all of the partnership interests of each
Partnership Subsidiary and all of the membership interests of each LLC
Subsidiary, in each case that are owned by the Company as indicated on Schedule
IV hereto, have been duly and validly authorized and issued or created and, in
the case of any Corporate Subsidiary or LLC Subsidiary, are fully paid and
non-assessable and (except for directors' qualifying shares and except as set
forth in the Prospectus) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims except for any such (i)
lack of a valid
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authorization or issuance that would not, individually or in the aggregate,
materially affect the Company's business or financial results, prospects or
growth opportunities as described in the Prospectus or (ii) liens, encumbrances,
equities or claims that would not have, individually or in the aggregate, a
Material Adverse Effect;
(i) The Shares have been duly and validly authorized and, when issued,
will be fully paid and non-assessable and conform to the description of the
Class A Common Stock contained in the Prospectus;
(j) The conversion of a number of shares of Class B Common Stock (the
"Class B Shares") and shares of class C common stock (the "Class C Shares")
equal to the number of Shares being sold hereunder by each Selling Stockholder
has been duly and validly authorized by the Stockholders' Committee in
accordance with the Company's Amended and Restated Certificate of Incorporation;
(k) Neither the compliance by the Company with all of the provisions of
this Agreement nor the consummation of the transactions herein contemplated (i)
will conflict with or result in any violation of the provisions of the Amended
and Restated Certificate of Incorporation or the Amended and Restated By-laws of
the Company and (ii) except for such conflicts, breaches, violations or defaults
that would not, individually or in the aggregate, have a Material Adverse
Effect, will (A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, or (B) violate any statute or any
order, rule or regulation of any court or tribunal or Federal, state or foreign
governmental or regulatory agency or body or self-regulatory authority having
jurisdiction over the Company or any of its subsidiaries or any of their
properties (each, a "Governmental Agency"); and no concession, permit, license,
consent, exemption, franchise, authorization, order, registration, qualification
or other approval (each, an "Authorization") of or with any Governmental Agency
is required for sale of the Shares or the consummation of the transactions
contemplated by this Agreement, except the registration under the Act of the
Shares, listing of the Shares on the New York Stock Exchange, Inc. (the "New
York Stock Exchange") and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters;
(l) None of the Company or its Significant Subsidiaries (as such term
is defined in Rule 1.02(w) of Regulation S-X) is (i) in violation of its
organizational documents (nor are any of the Company's other subsidiaries in
violation of their constituent documents, except for violations that would not
result in a Material Adverse Effect) or (ii) in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound (except for such defaults that would not result in a
Material Adverse Effect). Xxxxxx Associates LLC ("Associates LLC"), Xxxxxx
Associates Limited and Xxxxxx Bacon and Xxxxxxx are the only subsidiaries of the
company that are "Significant Subsidiaries" under Rule 1.02(w) of Regulation
S-X;
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(m) The statements set forth in the Prospectus (i) under the caption
"Description of Capital Stock", insofar as they purport to constitute a summary
of the terms of the securities described therein and (ii) under the captions
"Certain Relationships and Related Transactions", "Material U.S. Federal Income
Tax Considerations for Non-U.S. Holders", "Shares Eligible for Future Sale" and
the sixth, sixteenth and seventeenth paragraphs under the caption
"Underwriting", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate in all material respects and do
not omit to state a material fact required to be stated therein or necessary to
make such summary or description not misleading;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which Xxxxxx Holdings LLC ("Holdings"), the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined adversely
to Holdings, the Company or any of its subsidiaries, would, individually or in
the aggregate, have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(o) The Company is not an "investment company", as such term is defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(p) Ernst & Young LLP, who have certified certain combined and
consolidated financial statements of the Company and its subsidiaries and of
Associates LLC and its Affiliates, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder;
(q) Xxxxxx Xxxxxxxx LLP, who have certified certain combined financial
statements of Associates LLC and its Affiliates, were independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(r) Xxxxx & Xxxxxxxxxx, who have certified certain consolidated
financial statements of Bacon & Xxxxxxx and its subsidiaries, are independent
public accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(s) The Company and its subsidiaries possess all Authorizations issued
by the appropriate Governmental Agency that are necessary to conduct their
respective businesses as described in the Prospectus except where the failure to
have such Authorizations would not have a Material Adverse Effect;
(t) Other than the Selling Stockholders, no holder of securities of
Holdings or the Company has any preemptive rights to acquire any securities of
the Company or any rights to the registration of any securities under the
Initial Registration Statement which have not been waived;
(u) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; and there are no claims by
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the Company or any of its subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause except as previously disclosed in writing to the
Representatives or as would not, individually or in the aggregate, have a
Material Adverse Effect;
(v) The pro forma financial information included in the Prospectus and
the Registration Statement are based on assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma adjustments
reflect the proper application of those adjustments to the historical financial
statement amounts in the pro forma financial statements included in the
Prospectus and the Registration Statement;
(w) The Company and each of 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 or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; and (iii) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(x) The Company has not taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares;
(y) The Company and its subsidiaries own, possess, license or have
other rights to use all patents, patent applications, trade and service marks,
trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of the
Company's business as now conducted or as proposed in the Prospectus to be
conducted, except any failure to so own, possess, license or have rights to use
Intellectual Property which would not have a Material Adverse Effect; and
(z) The Agreement Regarding Custody Arrangements dated as of July 25,
2003 among the Company, the Custodian and Equiserve Trust Company, N.A. has been
duly authorized, executed and delivered by the Company.
2. Each of the Selling Stockholders severally represents and warrants to, and
agrees with, each of the Underwriters and the Company that:
(a) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement and the
Power of Attorney (as hereinafter referred to) and the Custody Agreement, and
for the sale and delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained, except the registration under the Act of such
shares and such as may be required under state securities or Blue Sky laws; and
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such Selling Stockholder has full right, power and authority to enter into this
Agreement, the Power of Attorney and the Custody Agreement and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder
hereunder;
(b) If such Selling Stockholder is a corporation, a partnership, a
limited liability company or trust, such Selling Stockholder has been duly
incorporated or organized, as the case may be, and is validly existing as a
corporation, partnership, limited liability company or trust, as the case may
be, in good standing under the laws of its jurisdiction of organization, as the
case may be, with full power and authority (corporate, partnership, limited
liability company or trust, as the case may be, and other) to own its
properties, conduct its business and to consummate the transactions contemplated
hereunder.
(c) The sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement, the Power of Attorney and the Custody Agreement
and the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or to which
any of the property or assets of such Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the constituent
documents of such Selling Stockholder if such Selling Stockholder is a
corporation, partnership, limited liability company or trust or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such Selling
Stockholder;
(d) Such Selling Stockholder has, and immediately prior to each Time of
Delivery (as defined in Section 5 hereof) such Selling Stockholder will have,
good and valid title to the Shares to be sold by such Selling Stockholder
hereunder, free and clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Shares and payment therefor pursuant hereto, good and
valid title to such Shares, free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters;
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, such Selling
Stockholder will not offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities of the Company that are
substantially similar to the Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than any
transfer or sale (i) in connection with the cashless exercise of an option to
purchase common stock granted under a benefit plan, (ii) to the Company in
connection with the satisfaction of a withholding obligation or (iii) required
to satisfy such Selling Stockholder's obligations under Section 2.2 of the
Stockholders' Agreement dated as of July 1, 2003 by and among the Company,
Xxxxxx Holdings LLC and the covered person signatory thereto (the "Stockholders'
Agreement"), without your prior written consent; provided that the Selling
Stockholders included on Schedule III(c) who were recipients of key employee
stock awards in connection with the initial public offering shall only be
subject to the foregoing restrictions until the date 60 days after the date of
the Prospectus;
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(f) Such Selling Stockholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(g) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
expressly for use therein, such Preliminary Prospectus and the Registration
Statement did, and the Prospectus and any further amendments or supplements to
the Registration Statement and the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will, conform in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder, and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(h) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the First Time of Delivery (as
hereinafter defined) a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(i) Certificates in negotiable form representing the Class B Shares or
the Class C Shares that are convertible into the number of Shares to be sold by
such Selling Stockholder hereunder have been placed in custody under a Custody
Agreement, duly executed and delivered by such Selling Stockholder to Xxxxx
Xxxxxx, a Division of Citigroup Global Markets Inc., as custodian (the
"Custodian"), and such Selling Stockholder has duly executed and delivered a
Power of Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and each of
them, as such Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact")
with authority to execute and deliver this Agreement on behalf of such Selling
Stockholder, to determine the purchase price per share to be paid by the
Underwriters to the Selling Stockholders as provided in Section 3 hereof, to
authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the Custody
Agreement; and
(j) The Class B Shares or the Class C Shares represented by the
certificates held in custody for such Selling Stockholder under the Custody
Agreement are subject to the interests in the underlying Shares of the
Underwriters hereunder; the arrangements made by such Selling Stockholder for
such custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable; the
obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the death, disability, incompetency or incapacity
of any individual Selling Stockholder or, in the case of an estate or trust, by
the death, disability, incompetency or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership or
corporation, by the
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dissolution of such partnership or corporation, or by the occurrence of any
other event; if any individual Selling Stockholder or any such executor or
trustee should die or become disabled, incompetent or incapacitated, or if any
such estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should occur, before
the delivery of the Shares hereunder, certificates representing the Shares shall
be delivered by or on behalf of the Selling Stockholders in accordance with the
terms and conditions of this Agreement and of the Custody Agreements; and
actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall
be as valid as if such death, disability, incompetency, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of
such death, incapacity, termination, dissolution or other event.
3. Subject to the terms and conditions herein set forth, (a) each of the Selling
Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at a purchase price per share of
$[ ], the number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Firm Shares
to be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Selling Stockholders as and to the extent indicated in Schedule II hereto, at
the purchase price per share set forth in clause (a) of this Section 3, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to [ ] Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares shall be made in proportion to the number
of Optional Shares to be sold by each Selling Stockholder. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Attorneys-in-Fact, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in
10
Section 5 hereof) or, unless Xxxxxxx, Xxxxx & Co. and the Attorneys-in-Fact
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
4. Upon the authorization by Xxxxxxx, Sachs & Co. of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
5. (a) The Shares to be purchased by each Underwriter hereunder, in definitive
form, and in such authorized denominations and registered in such names as
Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior notice
to the Selling Stockholders shall be delivered by or on behalf of the Selling
Stockholders to Xxxxxxx, Sachs & Co., through the facilities of the Depository
Trust Company ("DTC"), for the account of such Underwriter, against payment by
or on behalf of such Underwriter of the purchase price therefor by wire transfer
of Federal (same-day) funds to the account specified by the Custodian to
Xxxxxxx, Xxxxx & Co. at least forty-eight hours in advance. The Selling
Stockholders will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be 9:30 a.m., Chicago time, on [ ], 2003 or such
other time and date as Xxxxxxx, Sachs & Co. and the Selling Stockholders may
agree upon in writing. The time and date of such delivery and payment shall be,
with respect to the Firm Shares, 9:30 a.m., Chicago time, on [ ], 2003 or such
other time and date as Xxxxxxx, Xxxxx & Co. and the Selling Stockholders may
agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m.,
Chicago time, on the date specified by Xxxxxxx, Sachs & Co. in the written
notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters' election to purchase
such Optional Shares, or such other time and date as Xxxxxxx, Sachs & Co. and
the Selling Stockholders may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "First Time of Delivery", such
time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(l) hereof, will be delivered at the offices
of XxXxxxxxx, Will & Xxxxx, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000-0000 (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at 10 a.m., Chicago time, on the Chicago Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 6, "Chicago
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in Chicago are generally
authorized or obligated by law or executive order to close.
6. The Company agrees with each of the Underwriters:
11
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior to
the last Time of Delivery other than any amendment or supplement effected
through the filing of a report under the Exchange Act which shall be disapproved
by you promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Shares; to advise you,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 11:00 a.m., Chicago time, on the Chicago Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus in Chicago in
such quantities as you may reasonably request, and, if the delivery of a
prospectus is required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or supplement the
Registration Statement and the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as you may from
time to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
12
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Shares at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, (i) not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to the
Shares, including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee compensatory
stock plans existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement and a
number of shares not exceeding 3% of the number of shares of common stock of the
Company outstanding as of the date hereof in connection with acquisitions,
provided that, in each of the foregoing cases, the recipients of such shares
remain subject to the foregoing restrictions for the remainder of the 90-day
period ) and (ii) other than the waiver of the transfer restrictions for the key
employees listed on Schedule III(c) to be effective 60 days after the date of
the Prospectus, not directly or indirectly, to agree to any amendment or waiver
of the transfer restrictions contained in (v) any award under the global stock
and incentive compensation plan; (w) the transfer restriction agreement, dated
as of May 31, 2002, between Holdings and the Company; (x) the transfer
restriction agreement, dated as of June 5, 2002, by and among the Company and
each of the former partners of Bacon & Xxxxxxx, (y) the Stockholders' Agreement
or (z) any Xxxxxx Global Stock and Incentive Compensation Plan ONEshares Option
Award Agreement, without the prior written consent of Xxxxxxx, Xxxxx & Co.;
(f) During a period of three years following the effective date of the
Registration Statement, to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
13
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission), it being understood that such
information shall be subject to such confidentiality and use restrictions as the
Company may reasonably impose from time to time;
(h) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange;
(i) To file with the Commission such information on Form 10-Q or Form
10-K as may be required by Rule 463 under the Act;
(j) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement,
and the Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
and
(k) Upon the reasonable request of any Underwriter, to furnish, or
cause to be furnished, to such Underwriter an electronic version of the
Company's trademarks, servicemarks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted without any fee
and may not be assigned or transferred.
7. The Company and each of the Selling Stockholders covenant and agree with one
another and with the several Underwriters that (a) the Company will pay or cause
to be paid: (i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the Shares under the Act
and, except as provided in Section 6(c) with respect to the provision of written
and electronic copies of an amended or supplemented Prospectus nine months or
more after the time of issue of the Prospectus, all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 6(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey (iv) all fees and
expenses in connection with listing the Shares on the New York Stock Exchange;
(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the
14
sale of the Shares; (vi) the cost of preparing stock certificates; (vii) the
cost and charges of any transfer agent or registrar and (viii) all other costs
and expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section (but excluding the
underwriting discounts and commissions to be paid by the Selling Stockholders
pursuant to Section 7(b)); and (b) such Selling Stockholder will pay or cause to
be paid a pro rata share (based on the number of Shares to be sold by such
Selling Stockholder hereunder) of the total underwriting discounts and
commissions and all costs and expenses incident to the performance of such
Selling Stockholder's obligations hereunder which are not otherwise specifically
provided for in this Section, including (i) any fees and expenses of counsel for
such Selling Stockholder, (ii) such Selling Stockholder's pro rata share of the
fees and expenses of the Attorneys-in-Fact and the Custodian, and (iii) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
such Selling Stockholder to the Underwriters hereunder. In connection with
clause (b) (iii) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay
New York State stock transfer tax, and the Selling Stockholder agrees to
reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs if such tax payment
is not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that the Company shall bear, and the Selling
Stockholders shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 6(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions (a
draft of each such opinion is attached as Annex II(a) hereto), dated such Time
of Delivery, with respect to the matters covered in paragraphs (i), (ii) (only
as to the Company's authorized capitalization and the validity of the Shares),
(v) (only as to statements set forth in the Prospectus under the captions
"Description of Capital Stock" and "Underwriting") and (x) of subsection (c)
below as well as such other related
15
matters as you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(c) XxXxxxxxx, Will & Xxxxx, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power to own its properties and conduct
its business as described in the Prospectus;
(ii) The conversion of the Class B Shares and the Class C Shares
has been duly and validly authorized by the Stockholders' Committee in
accordance with the Company's Amended and Restated Certificate of
Incorporation;
(iii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; and the Shares constitute shares of the
Class A Common Stock;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) (i) The issue by the Company of the Shares, the sale of the
Shares being delivered at such Time of Delivery by the Selling
Stockholders in accordance with this Agreement and the compliance by
the Company with this Agreement will not result in any violation of
the provisions of the Amended and Restated Certificate of
Incorporation or Amended and Restated By-laws of the Company and (ii)
except for any conflicts, breaches, violations and defaults that would
not, individually or in the aggregate, have a Material Adverse Effect,
the issue by the Company of the Shares and the compliance by the
Company with this Agreement will not violate any statute of the United
States federal government, the State of Illinois or, solely with
respect to the Delaware General Corporation Law, the State of Delaware
or violate any order, rule or regulation known to such counsel of any
agency of the United States federal government, the State of Illinois
or, solely with respect to the Delaware General Corporation Law, the
State of Delaware;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any Governmental Agency is required for the
issue and sale of the Shares or the compliance by the Company with
this Agreement, except the registration under the Act of the Shares
and the listing of the Shares on the New York Stock Exchange, subject
to notice of issuance, each of which has been obtained or made, and
such consents, approvals, authorizations, registrations or
16
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by
the Underwriters;
(vii) The statements set forth in the Prospectus under (i) the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the securities described therein
and (ii) the captions "Certain Relationships and Related
Transactions", "Material U.S. Federal Income Tax Considerations For
Non-U.S. Holders", "Shares Eligible for Future Sale", and the sixth
and seventeenth paragraphs under the caption "Underwriting", insofar
as they purport to describe the provisions of the laws and documents
referred to therein, constitute a fair summary;
(viii) The Company is not an "investment company", as such term
is defined in the Investment Company Act;
(ix) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
financial data therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder,
including with respect to documents which are required to be described
in the Registration Statement or Prospectus, incorporated by reference
into the Prospectus or filed as an exhibit to the Registration
Statement; although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (vi) of this section 8(c), they have no
reason to believe that, as of its effective date and as of the Time of
Delivery, the Registration Statement or any further amendment thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and financial data therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date and as of the Time of Delivery, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and financial data therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(x) This Agreement, the Custody Agreement and the Power of
Attorney have been duly authorized, executed and delivered by or on
behalf of Xxxxxxx Holdings, L.P. and DJH Investments, L.P.; the sale
of the Shares to be sold by such Selling Stockholders hereunder and
the compliance by each such Selling Stockholder with all of the
provisions of this Agreement, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and
17
therein contemplated will not result in any violation of the
provisions of the constituent documents of such Selling Stockholder;
and such Selling Stockholder's execution, delivery and compliance with
this Agreement, the Power of Attorney and the Custody Agreement does
not conflict with agreements or obligations of the Selling Stockholder
contained in the Stockholders Agreement among the Company, Xxxxxx
Holdings LLC and the other persons signatory thereto dated as of
July 1, 2003.
(xi) Upon sale and delivery of and payment for the Shares to be
sold by each of the Selling Stockholders pursuant to the Underwriting
Agreement, and assuming the Underwriters purchase such shares for
value and in good faith without notice of any lien, encumbrance,
equity or claim or any other adverse claim within the meaning of the
Uniform Commercial Code, the Underwriters will own such Shares, free
and clear of all liens, encumbrances, equities or claims other than
any created by any Underwriter in such capacity or resulting from any
action taken by any Underwriter in such capacity; and
(xii) The Power of Attorney and the Custody Agreement of each
Selling Stockholder is a valid and binding agreement of such Selling
Stockholder enforceable in accordance with its terms under New York
law.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the Federal laws of the United
States, the laws of the State of Illinois, the General Corporation Law of the
State of Delaware and, as to the opinions in paragraphs (xi) and (xii) above,
the laws of the State of New York. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials and other sources believed by such counsel to be reliable and
responsible. Such counsel may also state that insofar as the opinions expressed
in paragraphs (xi) and (xii) above relate to the validity, binding effect or
enforceability of any agreement, obligation or instrument of any Selling
Stockholder, or the transfer of any interest in property of such Selling
Stockholder, such counsel has assumed that each Selling Stockholder (other than
Xxxxxxx Holdings L.P. and DJH Investments, L.P.) has satisfied those legal
requirements that are applicable to it, including due execution and delivery, to
the extent necessary to make this Agreement, the Power of Attorney and the
Custody Agreement enforceable against it, that each such Selling Stockholder has
full legal right, capacity, power and authority to duly execute and deliver such
agreements, obligation or instrument and that each Selling Stockholder's
execution, delivery and compliance with such agreement, obligation or instrument
does not conflict with agreements or obligations of the Selling Stockholder
other than agreements or obligations contained in this Agreement, the Power of
Attorney, the Custody Agreement and the Stockholders Agreement among the
Company, Xxxxxx Holdings LLC and the other persons signatory thereto dated as of
July 1, 2003.
(d) C. Xxxxxxxx Xxxxxxxx, III, General Counsel of the Company,
shall have furnished to you his written opinion (a draft of such opinion is
attached as Annex II (c) hereto), dated such Time of Delivery, in form and in
substance satisfactory to you, to the effect that:
18
(i) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of failure to
be so qualified in any such jurisdiction except where any failure to
be so qualified or in good standing would not have, individually or in
the aggregate, a Material Adverse Effect (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall state that
he believes that both you and he are justified in relying upon such
opinions and certificates);
(ii) Each subsidiary of the Company has been duly incorporated or
organized, as the case may be, and is validly existing as a
corporation, partnership or limited liability company in good standing
under the laws of its jurisdiction of incorporation or organization,
as the case may be, except where the failure to be duly incorporated
or organized would not have a Material Adverse Effect; and all of the
issued shares of capital stock of each Corporate Subsidiary, all of
the partnership interests of each Partnership Subsidiary and all of
the membership interests of each LLC Subsidiary, in each case that are
owned by the Company as indicated in Schedule IV to this Agreement,
have been duly and validly authorized and issued and, in the case of
any Corporate Subsidiary or LLC Subsidiary, are fully paid and
non-assessable, and (except for directors' qualifying shares and
except as otherwise set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims except where such (i) lack of valid authorization
or issuance would not, individually or in the aggregate, materially
affect the Company's business or financial results, prospects or
growth opportunities as described in the Prospectus or (ii) liens,
encumbrances, equities or claims would not have, individually or in
the aggregate, a Material Adverse Effect; (such counsel being entitled
to rely upon opinions of local counsel and in respect to matters of
fact upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that he believes that both you
and he are justified in relying upon such opinions and certificates);
(iii) To such counsel's knowledge, after due inquiry, and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which Holdings, the Company or any
of its subsidiaries is a party or of which any property of Holdings,
the Company or any of its subsidiaries is the subject which, if
determined adversely to Holdings, the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect; and, to such counsel's knowledge, no such proceedings
are threatened or contemplated by any Governmental Agency or
threatened by others;
(iv) Neither the Company nor any of its Significant Subsidiaries
is in violation of its organizational documents or, to such counsel's
knowledge, in default in the performance or observance of any material
obligation, agreement,
19
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound
(except for such defaults that would not have a Material Adverse
Effect);
(v) Other than the Selling Stockholders, no holders of securities
of Holdings or the Company have any preemptive rights to acquire any
securities of the Company or any rights to the registration of any
securities under the Registration Statement that have not been waived;
(vi) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents, when
such documents became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact, or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading;
(vii) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated, except for any conflicts, breaches, violations and
defaults that would not, individually or in the aggregate, have a
Material Adverse Effect, will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject;
(viii) The Agreement Regarding Custody Arrangements dated as of
July 25, 2003 among the Company, the Custodian and Equiserve Trust
Company, N.A. has been duly authorized, executed and delivered by the
Company; and
(ix) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
financial data therein, as to
20
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder, including with respect to documents which are
required to be described in the Registration Statement or Prospectus,
incorporated by reference into the Prospectus or filed as an exhibit
to the Registration Statement; although he does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
he has no reason to believe that, as of its effective date and as of
the Time of Delivery, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and financial data therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date and as of the Time of
Delivery, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and financial data therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may state that he expresses no opinion
as to the laws of any jurisdiction other than the Federal laws of the United
States, the laws of the State of Illinois and the General Corporation Law of the
State of Delaware. Such counsel may also state that, insofar as such opinion
involves factual matters, he has relied upon certificates of officers of the
Company and its subsidiaries and certificates of public officials and other
sources believed by such counsel to be reliable and responsible. In addition,
such counsel may state that he has examined or has caused attorneys in the
Company's legal department to examine, such records, certificates and other
documents, and such questions of law, as he has considered necessary or
appropriate for the purposes of such opinion.
(e) (x) On the date of the Prospectus at a time prior to the execution
of this Agreement, (y) at 8:30 a.m., Chicago time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also (z) at each Time of Delivery:
(i) Ernst & Young LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I
hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto); and
(ii) Xxxxx and Xxxxxxxxxx shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to
21
you, to the effect set forth in Annex I hereto (the executed copy of
the letter delivered prior to the execution of this Agreement is
attached as Annex I(c) hereto and a draft of the form of letter to be
delivered on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as
Annex I(d) hereto).
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or Illinois State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war or
(v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in the judgment of
Xxxxxxx, Sachs & Co. makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been
duly listed, subject to notice of issuance, on the New York Stock Exchange;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the individuals listed on Schedule
III(a) hereto, substantially to the effect set forth in Section 6(e) hereof in
form and substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the Chicago
Business Day next succeeding the date of this Agreement; and
22
(k) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling Stockholders, respectively, satisfactory to
you as to the accuracy of the representations and warranties of the Company and
the Selling Stockholders, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling Stockholders of
all of their respective obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as you may reasonably
request, and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (g) of this
Section.
9. (a) The Company and each of the Selling Stockholders that is included in
Schedule III(b) (the "Executive Selling Stockholders") will, jointly and
severally, indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company and the Executive Selling Stockholders shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein; provided, further, that
liability of each Executive Selling Stockholder pursuant to this subsection (a)
shall not exceed the amount of net proceeds received by such Selling Stockholder
and the members of their immediate family from the sale of the Shares pursuant
to this Agreement.
(b) Each of Selling Stockholders that is not an Executive Selling
Stockholder will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Selling
Stockholder expressly for use therein; and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or
23
defending any such action or claim as such expenses are incurred; provided,
however, that such Selling Stockholder shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein; provided, further, that
the liability of Selling Stockholders that is not an Executive Selling
Stockholder pursuant to this subsection (b) shall not exceed the amount of net
proceeds received by such Selling Stockholder from the sale of the Shares
pursuant to this Agreement.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein; and will reimburse the Company and each Selling
Stockholder for any legal or other expenses reasonably incurred by the Company
or such Selling Stockholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be
24
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(i) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Selling Stockholders bear
to the total underwriting discounts and commissions payable to the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Selling Stockholders on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, each
of the Selling Stockholders and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (e) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission and no Selling Stockholder shall be required to contribute an amount
that, together with any other payments made pursuant to this Section 9,
25
exceeds the amount of net proceeds received by such Selling Stockholder of such
Selling Stockholder from the sale of the Shares pursuant to this Agreement. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholders under
this Section 9 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company or any Selling Stockholder within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Selling Stockholders shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Stockholders shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
26
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholders shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company
and the Selling Stockholders and the Underwriters as provided in Section 7
hereof and the indemnity and contribution agreements in Section 9 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither
the Company nor the Selling Stockholders shall then be under any liability to
any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any
other reason any Shares are not delivered by or on behalf of the Selling
Stockholders as provided herein, each of the Selling Stockholders pro rata
(based on the number of Shares to be sold by such Selling Stockholder hereunder)
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Selling Stockholders
shall then be under no further liability to any Underwriter in respect of the
Shares not so delivered except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 0000 Xxxxx Xxxxx, Xxxxxxx, XX 00000
27
Attention: Registration Department; if to any Selling Stockholder shall be
delivered or sent by mail, telex or facsimile transmission to counsel for such
Selling Stockholder at its address set forth in Schedule II hereto; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Stockholders by you on
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Company and the Selling Stockholders and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of the Company
and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
16. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
17. This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
18. The Company and the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriters imposing any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel and the Custodian, counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and each of the Selling Stockholders. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Company and the Selling Stockholders
for examination, upon request, but without warranty on your part as to the
authority of the signers thereof.
28
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Xxxxxx Associates, Inc.
By:_______________________________________
Name: Xxxx Xxxx
Title: Chief Administrative Officer
Each of the Selling Stockholders named
in Schedule II to this Agreement
By:_______________________________________
Name:
Title:
As Attorney-in-Fact acting on behalf of
each such Selling Stockholder.
S-1
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.,
Banc of America Securities LLC,
Citigroup Global Markets Inc.,
X.X. Xxxxxx Securities Inc.,
UBS Securities LLC and
Wachovia Capital Markets Inc.
By:
---------------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of the Representatives and each of the Underwriters
S-2
SCHEDULE I
Number of Optional
Shares to be
Total Number of Firm Purchased if
Shares to be Maximum Option
Underwriter Purchased Exercised
----------- --------------------- ------------------
Xxxxxxx, Sachs & Co. ...............
Banc of America Securities LLC. ....
Citigroup Global Markets Inc. ......
X.X. Xxxxxx Securities Inc. ........
UBS Securities LLC .................
Wachovia Capital Markets Inc. ......
Schedule I-1
SCHEDULE II
Number of Optional
Shares to be
Total Number of Firm Sold if
Shares to be Maximum Option
Sold Exercised
--------------------- ------------------
The Selling Stockholders(a): .......
--------------
(a) Each Selling Stockholder has appointed Xxxxx X. Xxxx, Xxxxxx X. Xxxxxx,
Xxxxxxx X. Block, Xxxx X. Xxxxxxx Xxx XxXxxxxxxx and Xxxx X. Xxxx, and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
Schedule II-1
SCHEDULE IV
SUBSIDIARIES
Jurisdiction of Percentage of
---------------- -------------
Name Organization Ownership Interests/1/
---- ------------ ----------------------
Xxxxxx Bacon & Xxxxxxx United Kingdom
Xxxxxx Associates Pty. Ltd. Australia
Xxxxxx Associates GmbH Austria 70%
Xxxxxx Associates S.A. Belgium
Xxxxxx Associates Limitada Chile
Xxxxxx Associates Consulting Co. Ltd. China
Xxxxxx Associates SARL France
Xxxxxx Associates GmbH Germany
Xxxxxx Associates Pvt. Ltd. India
PT Xxxxxx Konsultan Indonesia Indonesia
Xxxxxx International Services (India) Pvt. Ltd. India
Xxxxxx Associates Srl Italy
Xxxxxx Associates Kabushiki Gaisya Japan
Xxxxxx Associates SDN. BHD. Malaysia
Xxxxxx Associates de Mexico S. de X.X. de C.V. Mexico
Xxxxxx Associates S.C. Mexico
Xxxxxx Associates Limited New Zealand
Xxxxxx Associates Sp. z o.o. Poland
Xxxxxx Associates LLC Sucursal en Portugal Portugal
Xxxxxx Associates Pte. Ltd. Singapore
Xxxxxx Associates Korea Yuhan Hoesa South Korea
Xxxxxx Associates S.A. Spain
Xxxxxx/Loneanalyser A.B. Sweden
Xxxxxx Associates A.G. Switzerland
Xxxxxx Associates Limited Thailand
Xxxxxx Associates Limited United Kingdom
Xxxxxx Distributions LLC United States
Xxxxxx Insurance Brokerage LLC United States
Annod Corp. United States
Xxxxxx Financial Services LLC United States
Cyborg Systems Worldwide, Inc. United States
----------------------------------
/1/ 100% owned unless otherwise indicated.
Schedule IV-1
ANNEX I
Pursuant to Section 8(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries or Bacon and Xxxxxxx and its subsidiaries,
as the case may be, within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company or Bacon and Xxxxxxx and its
subsidiaries, as the case may be, for the periods specified in such letter,
as indicated in their reports thereon, copies of which have been
[separately] furnished to the representatives of the Underwriters (the
"Representatives") [and are attached hereto];
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants, in the case of
the Company and its subsidiaries, of the unaudited combined and
consolidated statements of operations, combined and consolidated balance
sheets, combined and consolidated statements of shareholders' equity and
combined and consolidated statements of cash flows, and in the case of
Bacon & Xxxxxxx and its subsidiaries, the unaudited consolidated income
statement before partner distributions, the consolidated balance sheets,
the consolidated statements of cash flows and the consolidated statements
of partners' balances, in each case included in the Prospectus as indicated
in their reports thereon copies of which [have been separately furnished to
the Representatives]/[are attached hereto] and on the basis of specified
procedures including inquiries of officials of the Company or Bacon &
Xxxxxxx, as the case may be, who have responsibility for financial and
accounting matters regarding whether the unaudited combined and
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations,
nothing came to their attention that caused them to believe that the
unaudited combined and consolidated financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
combined and consolidated results of operations and financial position of
the Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts
Schedule IV-1
(after restatements where applicable) in the audited consolidated
financial statements for such five fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form 10-K
for such fiscal years;
(v) They have compared the information in the Prospectus under
"Summary Combined and Consolidated Financial Data" and "Selected
Combined and Consolidated Financial Data" with the disclosure
requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of
the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the Company's unaudited combined and consolidated
statements of operations, combined and consolidated balance
sheets, combined and consolidated statements of shareholders'
equity and combined and consolidated statements of cash flows or
Bacon & Woodrow's unaudited consolidated income statement before
partner distributions, the consolidated balance sheets, the
consolidated statements of cash flows and the consolidated
statements of partners' balances, in each case included in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published rules and regulations, or (ii) any material
modifications should be made to the Company's unaudited combined
and consolidated statements of income, combined and consolidated
balance sheets, combined and consolidated statements of
shareholders' equity and combined and consolidated statements of
cash flows or Bacon & Woodrow's unaudited consolidated income
statement before partner distributions, the consolidated balance
sheets, the consolidated statements of cash flows and the
consolidated statements of partners' balances, in each case
included in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited combined and consolidated
financial statements from which such data and items were derived,
and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included in the Prospectus;
Annex II(d)-1
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited combined and consolidated financial statements referred
to in clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in
clause (B) were not determined on a basis substantially
consistent with the basis for the audited combined and
consolidated financial statements included in the Prospectus;
(D) the unaudited pro forma combined and consolidated
financial statements included in the Prospectus under the heading
"Pro Forma Combined and Consolidated Income Statements" do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified
by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except
in each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries or Bacon & Xxxxxxx and its
subsidiaries, as the case may be, which appear in the Prospectus, or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with
Annex II(d)-1
the accounting records of the Company and its subsidiaries or Bacon & Xxxxxxx
and its subsidiaries, as the case may be and have found them to be in agreement.
Annex II(d)-1
