EXHIBIT 1.1
-----------
LAS VEGAS SANDS CORP.
COMMON STOCK, PAR VALUE $0.001 PER SHARE
UNDERWRITING AGREEMENT
March 13, 2006
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Las Vegas Sands Corp., a Nevada corporation (the "Company"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
55,000,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 8,250,000 additional shares (the "Optional Shares") of
common stock, par value $0.001 per share (the "Stock"), of the Company (the
Firm Shares and the Optional Shares which the Underwriters elect to purchase
pursuant to Section 2 hereto are herein collectively called the "Shares").
1. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-131845)
(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 for each of the other Underwriters, and,
excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, 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 after reasonable investigation, threatened by the
1
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under
the Act to be part of the Initial Registration Statement at the time it was
declared effective, 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"; the Preliminary
Prospectus relating to the Shares that was included in the Registration
Statement immediately prior to the Applicable Time (as defined in Section 1(c)
hereof) is hereinafter called the "Pricing Prospectus"; and the final
prospectus relating to the Shares, 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, the Pricing 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-1 under the Act, as of the
date of such prospectus; and any "issuer free writing prospectus" as defined
in Rule 433 under the Act relating to the Shares is hereinafter called an
"Issuer Free Writing Prospectus";
(b) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein or by a Selling Stockholder
expressly for use therein;
(c) For the purposes of this Agreement, the "Applicable Time" is
7:10 pm (Eastern time) on the date of this Agreement; the Pricing Prospectus,
as supplemented by the price to the public (collectively, the "Pricing
Disclosure Package") as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, 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
2
to the Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for
use therein or by a Selling Stockholder expressly for use therein. Each Issuer
Free Writing Prospectus listed on Schedule III hereto does not conflict with
the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure Package as of
the Applicable Time, did not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Xxxxx & Co. or by a Selling
Stockholder expressly for use therein;
(d) The documents incorporated by reference in the Pricing
Prospectus and 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 Securities Exchange Act of 1934, as amended
(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 necessary in
order 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
that have been corrected in a subsequent filing that has been incorporated by
reference in the Pricing Prospectus or the Prospectus or that have been made
in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Sachs & Co. or by a Selling
Stockholder expressly for use therein;
(e) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement and the
Prospectus will conform, in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration Statement
and any amendment 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, in the light of the circumstances under which
they were made, not misleading, and as to the Prospectus, as of the applicable
filing date thereof and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions
3
made in reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Xxxxxxx, Xxxxx & Co. or by a Selling
Stockholder expressly for use therein;
(f) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Pricing Prospectus, except as set
forth in the Pricing Prospectus, (i) neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, which are material, individually or in the aggregate, to the
Company and its subsidiaries, taken as a whole, nor entered into any material
transaction not in the ordinary course of business (other than additional
draws made under existing credit facilities), (ii) except as contemplated by
the Pricing Prospectus and except for the issuance of shares pursuant to the
exercise of outstanding options, there has not been any change in the
Company's capital stock or increase in long-term debt (other than additional
draws made under existing credit facilities) or any payment of or declaration
to pay any dividends or other distribution with respect to the capital stock
(or other) of the Company or any of its subsidiaries, (iii) neither the
Company nor any of its subsidiaries has sustained since the date of the latest
audited financial statements included in the Pricing Prospectus any material
loss or interference with its business, whether or not covered by insurance,
otherwise than as contemplated by the Pricing Prospectus and (iv) since the
date of the latest audited financial statements included in the Pricing
Prospectus and except as contemplated by the Pricing Prospectus, there has not
been any material adverse change, or any development that could reasonably be
expected to result in a material adverse change, in or affecting the general
affairs, management, business, properties, prospects or condition (financial
or otherwise), stockholders' equity, or results of operations of the Company
and its subsidiaries, taken as a whole, nor have any events occurred which,
singly or in the aggregate, have a material adverse effect on the sale of the
Shares by the Selling Stockholders or the consummation of the transactions
contemplated hereby (any change or event described in (iv) of this clause (f),
a "Material Adverse Effect");
(g) The Company and its subsidiaries have good and marketable
title in fee simple to all material real property and good and marketable
title to all material personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are described in
the Pricing Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases with such
exceptions as are described in the Pricing Prospectus or are not material and
do not interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries;
4
(h) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Nevada with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Prospectus and has been duly
qualified to do business 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, except where the failure to be so qualified or in good
standing would not have a Material Adverse Effect; and each of Las Vegas
Sands, LLC, Interface Group-Nevada, Inc., Lido Casino Resort Holding Company,
LLC, Lido Casino Resort, LLC, Phase II Mall Subsidiary, LLC, Phase II Mall
Holding, LLC, Venetian Macau S.A., Venetian Venture Development Intermediate
Limited and Venetian Cotai S.A. (collectively, the "Material Subsidiaries"),
each of which is a subsidiary of the Company, has been duly incorporated or
organized and is validly existing as a corporation or limited liability
company, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or formation, as the case may be; and each of
the subsidiaries of the Company, other than the Material Subsidiaries, has
been duly incorporated or organized and is validly existing as a corporation
or limited liability company, as the case may be, in good standing under the
laws of its jurisdiction of incorporation or formation, as the case may be,
except where the failure to be in good standing would not have a Material
Adverse Effect;
(i) The Company has an authorized capitalization as set forth in
the Pricing Prospectus and all of the issued shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
non-assessable, and conform to the description of the Stock contained in the
Pricing Prospectus; and all of the issued shares of capital stock or other
ownership interests, as the case may be, of each subsidiary of the Company
have been duly authorized and validly issued, are fully paid and
non-assessable and, except as set forth in the Pricing Prospectus and other
than as set forth on Schedule V, will be owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(j) This Agreement has been duly authorized, executed and
delivered by the Company;
(k) The sale of the Shares by the Selling Stockholders and the
compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein 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, (i) 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
5
subsidiaries is subject, (ii) the provisions of the Certificate of
Incorporation or By-laws or limited liability company agreement, as
applicable, of the Company or any of its subsidiaries or (iii) any statute
applicable to the Company or any order, rule or regulation applicable to the
Company of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties except, in
the case of clauses (i) and (iii), for such conflicts, breaches, violations or
defaults as would not have a Material Adverse Effect, and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required by the Company for the
sale of the Shares by the Selling Stockholders or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Act of the Shares, filings related to the transactions
contemplated hereby on Schedule 13D or 13G, Form 4 and Form 8-K with the
Commission and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws or
foreign securities laws, as applicable, in connection with the purchase and
distribution of the Shares by the Underwriters and such consents, approvals,
authorizations, orders, registrations and qualifications that have been
obtained and are in full force and effect as of the date hereof;
(l) Neither the Company nor any of its subsidiaries is (i) in
violation of its Certificate of Incorporation or By-laws or limited liability
company agreement, as applicable, 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 in the case of clause (ii) as would not
have a Material Adverse Effect;
(m) The statements set forth in the Pricing Prospectus under the
caption "Description of Capital Stock," insofar as they purport to constitute
a summary of the terms of the Stock, and under the caption "Underwriting,"
insofar as they purport to describe the provisions of the laws and documents
referred to therein, and incorporated by reference into the Pricing Prospectus
from the Company's Annual Report on Form 10-K for the year ended December 31,
2005 under the caption "Business-Regulation and Licensing," insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects;
(n) Other than as set forth in the Pricing Prospectus, there are
no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which now have or could reasonably be expected
in the future to have a Material Adverse Effect; and, to the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
6
(o) The Company is not and, after giving effect to the sale of the
Shares by the Selling Stockholders, will not be an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) At the time of filing the Initial Registration Statement the
Company was not and is not an "ineligible issuer," as defined under Rule 405
under the Act;
(q) The consolidated historical financial statements, together
with related schedules and notes, set forth in the Registration Statement, the
Pricing Prospectus and the Prospectus fairly present the consolidated
financial position of the Company at the respective dates indicated and the
results of its operations and its cash flows for the respective periods
indicated, in accordance with U.S. generally accepted accounting principles
consistently applied throughout such periods (except as otherwise disclosed
therein). Except as otherwise disclosed in the Pricing Prospectus or the
Prospectus, the historical other financial information and data included in
the Registration Statement and the Prospectus are, in all material respects,
prepared on a basis consistent with such financial statements and the books
and records of the Company;
(r) PricewaterhouseCoopers LLP, who has audited certain financial
statements of the Company and its subsidiaries, is an independent registered
public accounting firm as required by the Act and the rules and regulations of
the Commission thereunder;
(s) Each of the Company and its subsidiaries has complied in all
respects with all laws, regulations and orders applicable to it or its
businesses including, without limitation, all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated by the
Commission thereunder, the laws of the State of Nevada, various regulations of
the Nevada Gaming Commission and the general laws, specific gaming laws,
various regulations and licensing and regulatory control of the Macau
government and Gaming Inspection and Coordination Department, in each case,
other than as would not have a Material Adverse Effect, or as otherwise
described in the Pricing Prospectus;
(t) Except as would not, individually or in the aggregate, have a
Material Adverse Effect or as otherwise described in the Pricing Prospectus,
(i) each of the Company and its subsidiaries has all certificates, consents,
exemptions, orders, permits, licenses, authorizations, or other approvals
(each, an "Authorization") of and from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
7
necessary or required to engage in the business currently conducted by it in
the manner described in the Pricing Prospectus; (ii) all such Authorizations
are valid and in full force and effect; and (iii) each of the Company and its
subsidiaries is in compliance in all material respects with the terms and
conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities and governing bodies having jurisdiction with
respect thereto;
(u) Each of the Company and its subsidiaries owns or possesses or
has the right to use the licenses, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
(collectively, the "Intellectual Property") presently employed by it in
connection with, and material to, individually or in the aggregate, its
operations, except where the failure to own, possess or have the right to use
would not have a Material Adverse Effect; and neither the Company nor any of
its subsidiaries have received any notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which, individually or
in the aggregate, has, or, would reasonably be expected to result in, a
Material Adverse Effect. To the knowledge of the Company and its subsidiaries,
the use of such Intellectual Property in connection with the business and
operations of the Company and its subsidiaries as described in the Pricing
Prospectus does not infringe on the rights of any person, except as would not,
individually or in the aggregate, result in a Material Adverse Effect;
(v) All income tax returns required to be filed by the Company and
its subsidiaries in all jurisdictions have been timely and duly filed, other
than those filings being contested in good faith, except where the failure to
so file any such returns could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Except as disclosed
in the Pricing Prospectus, there are no income tax returns of the Company or
its subsidiaries that are currently being audited by state, local or federal
taxing authorities or agencies (and with respect to which the Company or its
subsidiaries has received notice), where the findings of such audit could
reasonably be expected to result in a Material Adverse Effect. All material
taxes, including withholding taxes, penalties and interest, assessments, fees
and other charges due or claimed to be due from such entities, have been paid,
other than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without penalty or interest;
(w) Except as disclosed in the Pricing Prospectus, including,
without limitation under the caption entitled "Risk Factors--Risks Related to
Our Business--Our insurance coverage may not be adequate to cover all possible
losses that our properties could suffer. In addition our insurance costs may
increase and we may not be able to obtain the same insurance coverage in the
8
future", each of the Company and its subsidiaries maintains insurance covering
its properties, operations, personnel and businesses which insures against
such losses and risks as are adequate in accordance with the Company's
reasonable business judgment to protect the Company, its subsidiaries and
their businesses. Except as disclosed in the Pricing Prospectus, including,
without limitation under the caption entitled "Risk Factors--Risks Related to
Our Business--Our insurance coverage may not be adequate to cover all possible
losses that our properties could suffer. In addition our insurance costs may
increase and we may not be able to obtain the same insurance coverage in the
future", all such insurance is outstanding and duly in force in all material
respects on the date hereof and will be outstanding and duly in force in all
material respects at the Time of Delivery;
(x) Except as disclosed in the Pricing Prospectus, there are no
material business relationships or related party transactions which would be
required to be disclosed therein by Item 404 of Regulation S-K of the
Commission and such business relationship or related party transaction
described therein is a fair and accurate description in all material respects
of the relationships and transactions so described;
(y) Each of the Company and its subsidiaries is in compliance with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"), except for any non-compliance which
would not have a Material Adverse Effect; no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA)
for which the Company or any of its subsidiaries would have any liability,
except such as would not have a Material Adverse Effect; each of the Company
and its subsidiaries has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal
from, any "pension plan" or (ii) Section 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"), in each case, except as would not
have a Material Adverse Effect; and each "pension plan" for which the Company
or any of its subsidiaries would have any liability, except as would not have
a Material Adverse Effect, that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss
of such qualification, except, in each case, as would not have a Material
Adverse Effect;
(z) There is, except as set forth in the Pricing Prospectus, (i)
no material unfair labor practice complaint pending against the Company or any
of its subsidiaries or, to the best knowledge of each of the Company and its
subsidiaries threatened against it, before the National Labor Relations Board
9
or any state or local labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of its
subsidiaries, or, to the best knowledge of each of the Company and its
subsidiaries threatened against it, (ii) no material strike, labor dispute,
slowdown or stoppage pending against the Company or any of its subsidiaries
nor, to the best knowledge of each of the Company and its subsidiaries,
threatened against it and (iii) to the best knowledge of each of the Company
and its subsidiaries, no union representation question existing with respect
to the employees of the Company, or any of its subsidiaries, and, to the best
knowledge of each of the Company and its subsidiaries, no union organizing
activities are taking place, except, in each case of (i), (ii) or (iii), as
would not have a Material Adverse Effect;
(aa) Each of the Company and its subsidiaries has reviewed the
effect of Environmental Laws (as defined below) and the disposal of hazardous
or toxic substances, wastes, pollutants and contaminants on the business,
assets, operations and properties of the Company and its subsidiaries, as
applicable, and identified and evaluated associated costs and liabilities
(including, without limitation, any material capital and operating
expenditures required for clean-up, closure of properties and compliance with
environmental, safety or similar laws or regulations applicable to it or its
business or property relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), all permits, licenses and approvals, all
related constraints on operating activities and all potential liabilities to
third parties). On the basis of such reviews, each of the Company and its
subsidiaries has reasonably concluded that such associated costs and
liabilities would not have a Material Adverse Effect. Neither the Company nor
any of its subsidiaries has violated any Environmental Laws, lacks any permit,
license or other approval required of it under applicable Environmental Laws
or is violating any term or condition of such permit, license or approval, in
each case, which could reasonably be expected to, either individually or in
the aggregate, have a Material Adverse Effect;
(bb) Neither the Company nor any of its subsidiaries or to any of
their knowledge, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its subsidiaries
(i) has used any corporate funds during the last five years for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity, (ii) made any unlawful payment to any foreign or domestic
government official or employee from corporate funds, (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977, as
amended, or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment, except, in each case, such as would not have a
Material Adverse Effect;
10
(cc) The Company maintains a system of internal control over
financial reporting (as such term is defined in Rule 13a-15(f) under the
Exchange Act) that complies with the requirements of the Exchange Act. Each of
the Company and its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only
in accordance with management's general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto;
(dd) Other than as contemplated by or described in this Agreement
and the Pricing Prospectus, there is no broker, finder or other party that is
entitled to receive from the Company or any of its subsidiaries any brokerage
or finder's fee or other fee or commission as a result of any of the
transactions contemplated by this Agreement; and
(ee) Each certificate signed by any officer of the Company and
delivered to the Underwriter or counsel to the Underwriter pursuant to this
Agreement shall be deemed to be a representation and warranty by the Company
to the Underwriter as to the matters covered thereby.
2. Each of the Selling Stockholders severally represents and
warrants to, and agrees with, 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 for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained except for such consents, approvals,
authorization and orders as would not materially interfere with the
consummation of the transactions contemplated hereby; and such Selling
Stockholder has full right, power and authority to enter into this Agreement
and to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder;
(b) 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 and the consummation of the transactions herein
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 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 except for such conflict, breach, violation or
defaults as would not materially interfere with the consummation of the
11
transactions contemplated hereby, nor will such action result in any violation
of the provisions of any statute applicable to such Selling Stockholder or any
order, rule or regulation applicable to such Selling Stockholder of any court
or governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder except for such
violations as would not materially interfere with the consummation of the
transactions contemplated hereby;
(c) Immediately prior to the Time of Delivery, 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 Underwriters;
(d) 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 in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares;
(e) To the extent that any statements or omissions made in the
Registration Statement, the Prospectus, the Pricing Prospectus or any Issuer
Free Writing 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, the
Registration Statement did not, when it became effective, 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, and
the Prospectus, the Pricing Prospectus or any Issuer Free Writing Prospectus,
and any further amendments or supplements thereto, when they were or are filed
with the Commission, as the case may be, did not and will not, as the case may
be, contain any 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, not misleading; provided,
HOWEVER, that this representation and warranty shall not apply to any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, the Prospectus, the Pricing Prospectus or any
Issuer Free Writing Prospectus or any amendment or supplement thereto made in
reliance upon and in conformity with written information furnished to the
Company by an Underwriter expressly for use therein;
(f) During the period beginning from the date hereof and
continuing to and including the date applicable to each Selling Stockholder as
set forth in Schedule IV hereto (the "Lock-Up Period"), not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of, except as provided hereunder, any shares of Stock or
12
securities that are convertible into, exchangeable for, or that represent the
right to receive, Stock or any substantially similar securities, whether now
or hereafter acquired (the "Lock-Up Securities"), without the prior written
consent of Xxxxxxx, Xxxxx & Co. Notwithstanding the foregoing, the Selling
Stockholders may make offers, sales, agreements to offer or sell,
solicitations of offers to purchase, swaps, or other disposal of, or
transactions in, any Lock-Up Securities (i) to one or more organizations which
are tax exempt under Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended, and including, but not limited to, the Dr. Xxxxxx and Xxxxxxx X.
Xxxxxxx Charitable Trust u/d/t dated December 12, 1994, as amended; provided,
that the aggregate amount transferred under this sub clause as among Xxxxxxx
X. Xxxxxxx (in his individual capacity), the Selling Stockholders, the ESBT S
Trust, the ESBT Y Trust, the QSST A Trust and the QSST M Trust, shall not
exceed the sum of one hundred million dollars ($100,000,000.00), (ii) as a
BONA FIDE gift or gifts, provided that the donee or donees thereof agree to be
bound in writing by the restrictions set forth in this Section 2(f), (iii) to
any beneficiary of a Selling Stockholder or any trust for the direct or
indirect benefit of a beneficiary of a Selling Stockholder or the immediate
family of such beneficiary, provided that the beneficiary of such Selling
Stockholder, the immediate family member or the trustee of the trust, as
applicable, agrees to be bound in writing by the restrictions set forth in
this Section 2(f), and provided further that any such transfer shall not
involve a disposition for value, and provided further that in the event any
such transfer shall trigger a filing with the Commission, the Selling
Stockholder shall notify Xxxxxxx, Xxxxx & Co. upon making such filing, (iv)
with the prior written consent of Xxxxxxx, Sachs & Co. on behalf of the
Underwriters, or (v) to any beneficiary of or estate of a beneficiary of a
Selling Stockholder pursuant to a trust, will or other testamentary document
or applicable laws of descent; provided, however, that if (1) during the last
17 days of the initial Lock-Up Period, the Company releases earnings results
or announces material news or a material event or (2) prior to the expiration
of the initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period following the last day of the
initial Lock-Up Period, then in each case the Lock-Up Period will be
automatically extended until the expiration of the 18-day period beginning on
the date of release of the earnings results or the announcement of the
material news or material event, as applicable, unless Xxxxxxx, Xxxxx & Co.
waives, in writing, such extension.
For purposes of this Agreement, "immediate family" of an individual
shall include his or her spouse, and the ancestors, siblings or issue of said
individual, said spouse and said siblings and any relative by blood, marriage
or adoption, not more remote than first cousin; and
(g) 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
13
contemplated, such Selling Stockholder will deliver to you prior to or at the
Time of Delivery (as hereinafter defined) a properly completed and executed
United States Treasury Department Form W-9 or W-8, as applicable (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
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 $49.1445, 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 each of the Selling
Stockholders, 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 8,250,000 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,
provided that the purchase price per Optional Share shall be reduced by an
amount per share equal to any dividends or distributions declared by the
Company and payable on the Firm Shares but not payable on the Optional Shares.
Any such election by the Underwriters 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 Selling Stockholders, given within a
period of 30 calendar days after the date of this Agreement and setting forth
14
the aggregate number of Optional Shares to be purchased and the date on which
such Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless you and the Selling Stockholders otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
4. Upon the delivery of the Firm Shares by the Selling
Stockholders to the Underwriters, 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 each of the Selling Stockholders, to Xxxxxxx, Xxxxx & Co.
at least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at
least twenty-four hours prior to the Time of Delivery (as defined below) with
respect thereto at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Shares, 9:30 a.m., New York time, on March 16, 2006
or such other time and date as Xxxxxxx, Sachs & Co. and the Selling
Stockholders may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by Xxxxxxx, Xxxxx
& Co. in the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
Xxxxxxx, Xxxxx & 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 9 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 9(o) hereof, will be delivered at the offices
of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, XX 00000 (the "Closing Location"), and the Shares will be delivered
at the Designated Office, all at such Time of Delivery. A meeting will be held
at the Closing Location at 4:00 p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the final
15
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 5, "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New
York City are generally authorized or obligated by law or executive order to
close.
6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you (such
approval not to be unreasonably delayed) 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 the Prospectus prior to the last Time of
Delivery 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 amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to file promptly all materials required to
be filed by the Company with the Commission pursuant to Rule 433(d) under the
Act; 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 other prospectus in respect of the
Shares, 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 the 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
other prospectus or suspending any such qualification, to promptly 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 reasonably 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 reasonably 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 or subject
itself to taxation in any such jurisdiction where it is not then so subject;
(c) Prior to 12:00 p.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters with written and electronic copies of the
16
Prospectus in New York City in such quantities as you may reasonably request,
and, if the delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time any
event shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus in
order to comply with the Act, to notify you and upon your request to prepare
and furnish without charge to each Underwriter and to any dealer in securities
as many 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 compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) 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 sixteen 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 of the Commission 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 that is 90 after the date of the
Prospectus (the "Lock-Up Period"), not to offer, sell, contract to sell,
pledge, grant any option to purchase, make any short sale or otherwise
dispose, except as provided hereunder, of any securities of the Company that
are substantially similar to the Stock, including but not limited to any
options or warrants to purchase shares of Stock or 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 (i) pursuant to
employee stock option plans existing on the date of this Agreement, or (ii)
upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement or issued or to be issued
pursuant to employee stock option plans referred to in clause (i)), without
the prior written consent of Xxxxxxx, Xxxxx & Co., except that the Company may
17
issue such securities in exchange (either solely or together with other
consideration) for assets of a majority and controlling portion of the equity
of another person in connection with a merger or acquisition, provided that
prior to such issuance the recipients of such securities shall have agreed
with Xxxxxxx, Sachs & Co. in writing to be bound by the same form of agreement
in this Section 6(e) and provided, further, that the aggregate number of
shares issuable by the Company in any such acquisition transactions shall not
exceed the equivalent of 5% of the shares of Stock issued and outstanding
following the First Time of Delivery hereunder, subject to adjustment to
reflect stock splits, stock dividends, reclassifications, recombinations and
other similar adjustments; provided, however, that if (1) during the last 17
days of the initial Lock-Up Period, the Company releases earnings results or
announces material news or a material event or (2) prior to the expiration of
the initial Lock-Up Period, the Company announces that it will release
earnings results during the 16-day period following the last day of the
initial Lock-Up Period, then in each case the Lock-Up Period will be
automatically extended until the expiration of the 18-day period beginning on
the date of release of the earnings results or the announcement of the
material news or material event, as applicable, unless Xxxxxxx, Xxxxx & Co.
waives, in writing, such extension. The Company will provide Xxxxxxx, Sachs &
Co. and each stockholder subject to the Lock-Up Period pursuant to Section
2(f) or the lockup letters described in Section 9(l) with prior notice of any
such announcement that gives rise to an extension of the Lock-up Period;
(f) 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 not
available through the Commission's Electronic Data Gathering, Analysis and
Retrieval system, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed and not available through the Commission's
Electronic Data Gathering, Analysis and Retrieval system; 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); provided that no such additional
information shall be required except to the extent the disclosure of
additional information will not result in a violation of Regulation FD
(without requiring new disclosures to third parties in order to avoid
violation of Regulation FD); and provided, further, that the Company may
satisfy the requirements of this subsection by making any such reports,
communications or information generally available on its website;
18
(g) 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
(h) Upon 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. (a) The Company represents and agrees that, without the prior
consent of Xxxxxxx, Xxxxx & Co., it has not made and will not make any offer
relating to the Shares that would constitute a "free writing prospectus" as
defined in Rule 405 under the Act; each Underwriter represents and agrees
that, without the prior consent of the Company and Xxxxxxx, Sachs & Co., it
has not made and will not make any offer relating to the Shares that would
constitute a free writing prospectus; any such free writing prospectus the use
of which has been consented to by the Company and Xxxxxxx, Xxxxx & Co. is
listed on Schedule III hereto;
(b) The Company has complied and will comply with the requirements
of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending;
(c) The Company agrees that if at any time following issuance of
an Issuer Free Writing Prospectus any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would conflict with the information
in the Registration Statement, the Pricing Prospectus, the Prospectus or such
Issuer Free Writing Prospectus or would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances then prevailing, not
misleading, the Company will give prompt notice thereof to Xxxxxxx, Sachs &
Co. and, if requested by Xxxxxxx, Xxxxx & Co., will prepare and furnish
without charge to each Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus 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.
19
8. The Company and each of the Selling Stockholders covenants and
agrees with the several Underwriters that the Company will pay or cause to be
paid the following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Shares
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus,
any Issuer Free Writing 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 and foreign securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) the filing fees incident to, and the reasonable 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 sale of the Shares; (v) the cost of preparing stock certificates;
(vi) the cost and charges of any transfer agent or registrar; and (vii) all
other reasonable costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 9 and 13 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees and disbursements 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.
9. 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 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 their respective 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) under the Act within the applicable
time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) hereof; all
materials required to be filed by the Company pursuant to Rule 433(d)
20
under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filing by Rule 433; if the
Company has elected to rely upon Rule 462(b) under the Act, 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; no
stop order suspending or preventing the use of the Prospectus or any
Issuer Free Writing Prospectus 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) Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated
such Time of Delivery, with respect to 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) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel
for the Company, shall have furnished to you their written opinion,
dated such Time of Delivery, substantially in the form attached hereto
as Annex II(a);
(d) Xxxxxx Xxxxxx & Xxxxxxx, Nevada counsel for the
Company, shall have furnished to you their written opinion, dated such
Time of Delivery, substantially in the form attached hereto as Annex
II(b);
(e) Xxxxx Xxxxxxx, Macau counsel for the Company, shall
have furnished to you their written opinion, dated such Time of
Delivery, substantially in the form attached hereto as Annex II(c);
(f) Walkers, Cayman Islands counsel for the Company, shall
have furnished to you their written opinion, dated such Time of
Delivery, substantially in the form attached hereto as Annex II(d);
(g) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel
for the Selling Stockholders, shall have furnished to you their
written opinion, dated such Time of Delivery, substantially in the
form attached hereto as Annex II(e);
(h) Xxxxxx & Xxxxxx, P.C., counsel for the trust Selling
Stockholders (the "Trust Selling Stockholders"), shall have furnished
to you their written opinion, dated such Time of Delivery,
substantially in the form attached hereto as Annex II(f).
21
(i) On the date of the Prospectus at a time prior to the
execution of this Agreement, and at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance reasonably satisfactory to you, to the effect set forth in
Annex I(a) hereto or Annex I(b) hereto;
(j) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Pricing
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
Pricing Prospectus, and (ii) since the respective dates as of which
information is given in the Pricing Prospectus there shall not have
been any change in the member's equity or capital stock, as
applicable, increase in long-term debt (other than additional draws
made under existing credit facilities) or any payment of or
declaration to pay any dividends or other distribution with respect to
the capital stock 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, otherwise than as set forth or contemplated in the
Pricing Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in your judgment 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;
(k) On or after the Applicable Time (i) no downgrading
shall have occurred in the rating accorded the Company's or its
subsidiaries' debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's or its subsidiaries' debt securities;
(l) On or after the Applicable Time 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 New
York State authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States;
22
(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 your judgment 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;
(m) The Company shall have obtained and delivered to the
Underwriters executed copies of an agreement from each of the persons
listed on Schedule VI hereto, substantially in the forms attached as
Annex III(a), III(b), III(c), III(d) and III(e) hereto;
(n) The Company shall have complied with the provisions of
Section 6(c) hereof with respect to the furnishing of prospectuses (or
in lieu thereof, the notice referred to in Rule 173(a) under the Act)
on the New York Business Day next succeeding the date of this
Agreement;
(o) The Company shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of
the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the Time of
Delivery, as to the matters set forth in subsections (a) and (j) of
this Section and as to such other matters as you may reasonably
request; and
(p) Xxxxxx & Xxxxxxx LLP shall have been furnished with
such documents, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass
upon the matters referred to in this Section 9 and in order to
evidence the accuracy, completeness or satisfaction in all material
respects of any of the representations, warranties or conditions
herein contained.
10. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in (i) the Registration
Statement, (ii) any Preliminary Prospectus, (iii) the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, (iv) any Issuer Free
Writing Prospectus or (v) any "issuer information" filed or required to be
filed pursuant to Rule 433(d) under the Act, and approved or permitted by the
23
Company in accordance with Section 7 hereof, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; PROVIDED, HOWEVER, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx, Sachs
& Co. or the Selling Stockholders expressly for use therein.
(b) Each of the Selling Stockholders will indemnify severally and
not jointly and hold harmless the Underwriters and the Company against any
losses, claims, damages or liabilities, joint or several, to which the
Underwriters and the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in (i) the Registration Statement, (ii)
any Preliminary Prospectus, (iii) the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or (iv) any Issuer Free Writing
Prospectus or any "issuer information" filed or required to be filed pursuant
to Rule 433(d) under the Act and approved or permitted by the Company in
accordance with Section 7 hereof, 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 the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use therein; and will
reimburse the Underwriters and the Company for any legal or other expenses
reasonably incurred by the Underwriters and the Company in connection with
investing or 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 the Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the
24
Company by the Underwriters expressly for use therein; PROVIDED, FURTHER, that
the liability of each Selling Stockholders pursuant to this subsection (b) or
Section 2(e) shall not exceed the net proceeds received after underwriting
commissions and discounts from the sale of the Shares by such Selling
Stockholder 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, joint or several, to which the Company or the Selling
Stockholders 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 the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
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 the Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto,
or any Issuer Free Writing Prospectus, 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 and the 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 subsection (a), (b) and (c)
above, as applicable. 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 reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
25
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party. No indemnifying party shall be liable for any settlement or
compromise of, or consent to the entry of judgment with respect to, any such
action or claim effected without its consent (which consent shall not be
unreasonably withheld).
(e) If the indemnification provided for in this Section 10 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 Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
the Selling Stockholders bear to the total underwriting discounts and
commissions received by 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 and 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
26
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contribution 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), (i) no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price (less
underwriting commissions and discounts) at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which the Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission and
(ii) no Selling Stockholder shall be required to contribute any amount in
excess of the amount by which the net proceeds received after the underwriting
commission and discounts from the sale of the Shares by such Selling
Stockholder pursuant to this Agreement exceeds the amount of any damages which
such Selling Stockholder has otherwise been required to pay by reason of such
untrue or alleged statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of both the Company and the Selling
Stockholders under this Section 10 shall be in addition to any liability which
the Company and the Selling Stockholders may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriters within the meaning of the Act and each broker-dealer affiliate of
any Underwriter; and the obligations of the Underwriters under this Section 10
shall be in addition to any liability which the Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer,
director or trustee of the Company or any Selling Stockholder (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.
11. (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
27
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company and the Selling Stockholders
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company and the Selling Stockholders that
you have so arranged for the purchase of such Shares, or the Company or the
Selling Stockholders notify you that it or they have so arranged for the
purchase of such Shares, you, the Company 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 or
supplements 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, the Company
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 Company or 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.
(c) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and/or the
Company 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 the Shares to be purchased at such Time of
Delivery, or if the Company or 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,
28
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 8 hereof and the indemnity and contribution agreements in
Section 10 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
12. 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, director, controlling person or trustees of the Company or any
of the Selling Stockholders, and shall survive delivery of and payment for the
Shares.
13. If this Agreement shall be terminated pursuant to Section
11(c) hereof, the Company and the Selling Stockholders shall not be under any
liability to any Underwriter except as provided in Sections 8 and 10 hereof;
but, if for any other reason, any Shares are not delivered by or on behalf of
the Selling Stockholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including reasonable 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 none of the Company nor any of
the Selling Stockholders shall then be under any further liability to any
Underwriter except as provided in Sections 8 and 10 hereof.
14. 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, Sachs & Co. on behalf of you as
the representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to you as the representatives at care of Xxxxxxx,
Xxxxx & Co., Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Registration Department; 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; and if to the
Selling Stockholders, the address set forth in Schedule I hereto; provided,
however, that any notice to an Underwriter pursuant to Section 10(d) 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
29
Company by you upon request; provided, however, that notices under subsection
6(e) shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to you as the representatives at
Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Control Room. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Selling Stockholders and, to
the extent provided in Sections 10 and 12 hereof, the officers, directors,
trustees 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.
16. 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.
17. The Company and each of the Selling Stockholders acknowledges
and agrees that (i) the purchase and sale of the Shares pursuant to this
Agreement is an arm's-length commercial transaction between the Company and
the Selling Stockholders, on the one hand, and the several Underwriters, on
the other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent
or fiduciary of the Company or the Selling Stockholders, (iii) no Underwriter
has assumed an advisory or fiduciary responsibility in favor of the Company or
the Selling Stockholders with respect to the offering contemplated hereby or
the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company or the Selling Stockholders on
other matters) or any other obligation to the Company or the Selling
Stockholders except the obligations expressly set forth in this Agreement and
(iv) the Company and the Selling Stockholders have consulted their own
respective legal and financial advisors to the extent they deemed appropriate.
The Company and the Selling Stockholders agree that they will not claim that
any Underwriter has rendered advisory services of any nature or respect, or
owes a fiduciary or similar duty to the Company or the Selling Stockholders,
in connection with such transaction or the process leading thereto.
18. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company, the Selling
Stockholders or the Underwriters, or any of them, with respect to the subject
matter hereof.
30
19. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
20. The Company, each of the Selling Stockholders and each of the
Underwriters hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
21. 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.
22. Notwithstanding anything herein to the contrary, the Company
and the Selling Stockholders are authorized to disclose to any persons the
U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other
tax analyses) relating to that treatment and structure, without the
Underwriters imposing any limitation of any kind. However, any information
relating to the tax treatment and tax structure shall remain confidential (and
the foregoing sentence shall not apply) to the extent necessary to enable any
person to comply with securities laws. For this purpose, "tax structure" is
limited to any facts that may be relevant to that treatment.
31
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters,
the Selling Stockholders and the Company.
Very truly yours,
LAS VEGAS SANDS CORP.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel and Secretary
THE XXXXXXX X. XXXXXXX 2005 FAMILY
TRUST U/D/T DATED APRIL 25, 2005
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xx. Xxxxxx Xxxxxxx
Title: Trustee
THE XXXXXXX X. XXXXXXX 2004 TWO YEAR
LVSI ANNUITY TRUST U/D/T DATED MAY 31,
2004
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
00
XXX XXXXXXX X. XXXXXXX 0000 FOUR YEAR
LVSI ANNUITY TRUST U/D/T DATED OCTOBER
1, 2002
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
Accepted as of the date hereof:
XXXXXXX, SACHS & CO.
/s/ Xxxxxxx, Xxxxx & Co.
-----------------------------------
(Xxxxxxx, Sachs & Co.)
33
CITIGROUP GLOBAL MARKETS INC.
By: /s/
--------------------------------
Name:
Title:
34
XXXXXX BROTHERS INC.
By: /s/
----------------------------------------
AUTHORIZED REPRESENTATIVE
35
XXXXXXXXX & COMPANY, INC.
By: /s/
-----------------------------
Name:
Title:
36
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Managing Director
37
XXXXXX XXXXXXX & CO., INCORPORATED
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
38
X.X. XXXXXX SECURITIES INC.
By: /s/
---------------------------------
Authorized Signatory
39
UBS SECURITIES LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Title: Executive Director
40
SCOTIA CAPITAL (USA) INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President and Chief Operating Officer
41
XXXXXX X. XXXXXXX & COMPANY, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
00
XXXXXX XXXXXXXXXX (XXX) INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
43
SCHEDULE I
-----------------------------------------------------------------------------------------------
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
-----------------------------------------------------------------------------------------------
Xxxxxxx, Sachs & Co. ........................... 38,074,555 5,711,178
Citigroup Global Markets Inc. .................. 3,970,300 595,545
Xxxxxx Brothers Inc. ........................... 3,970,300 595,545
Xxxxxxxxx & Company, Inc. ..................... 1,928,495 289,274
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.................... 1,928,495 289,274
Xxxxxx Xxxxxxx & Co., Incorporated.............. 1,928,495 289,274
X.X. Xxxxxx Securities Inc. .................... 1,079,180 161,877
UBS Securities LLC.............................. 1,079,180 161,877
Scotia Capital (USA) Inc. ...................... 347,000 52,050
Xxxxxx X. Xxxxxxx & Company, Inc. .............. 347,000 52,050
Calyon (USA) Securities Inc. ................... 347,000 52,050
------------------ ------------------
Total......................................... 55,000,000 8,250,000
================== ==================
44
SCHEDULE II
SELLING STOCKHOLDERS
---------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER OF ADDRESS OF
SELLING STOCKHOLDER SHARES TO BE SOLD SELLING STOCKHOLDER
---------------------------------------------------------------------------------------------------------------------
The Xxxxxxx X. Xxxxxxx 2005 Family Trust u/d/t dated x/x Xxx Xxxxx Xxxxx Xxxx.,
Xxxxx 00, 0000 40,839,215 0000 Xxx Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
The Xxxxxxx X. Xxxxxxx 2004 Two Year LVSI Annuity c/o Las Vegas Sands Corp.,
Trust u/d/t dated May 31, 2004 1,990,050 0000 Xxx Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
The Xxxxxxx X. Xxxxxxx 2002 Four Year LVSI Annuity c/o Las Vegas Sands Corp.,
Trust u/d/t dated October 1, 2002 12,170,735 0000 Xxx Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
--------------------
Total...................................... 55,000,000
====================
45
SCHEDULE III
Issuer Free Writing Prospectuses:
None.
46
SCHEDULE IV
-------------------------------------------------------------------------------
SELLING STOCKHOLDER LOCK-UP PERIOD (END DATE)
-------------------------------------------------------------------------------
The Xxxxxxx X. Xxxxxxx 2005 Family
Trust u/d/t dated April 25, 2005 March 13, 2007
-------------------------------------------------------------------------------
The Xxxxxxx X. Xxxxxxx 2004 Two
Year LVSI Annuity Trust u/d/t
dated May 31, 2004 March 13, 2007
-------------------------------------------------------------------------------
The Xxxxxxx X. Xxxxxxx 2002 Four
Year LVSI Annuity Trust u/d/t
dated October 1, 2002 March 13, 2007
-------------------------------------------------------------------------------
47
SCHEDULE V
Silver State Marble LLC
TK Las Vegas, LLC
Sands Bethworks Gaming, LLC
Venetian Orient Limited
48
SCHEDULE VI
Xxxxxxx X. Xxxxxxx, Chairman of the Board,
Chief Executive Officer and Treasurer
ESBT S Trust u/d/t dated October 1, 2002
ESBT S Trust u/d/t dated October 1, 2002
QSST A Trust u/d/t dated October 1, 2002
QSST M Trust u/d/t dated October 1, 2002
Xxxxxxx X. Xxxxxxx, President and Chief Operating Officer
Xxxxxxx Holdings, LLC
Xxxxxxx X. Xxxxx, Executive Vice President
The Stone Crest Trust
Xxxxxx X. Xxxxxxxxx, Senior Vice President
Xxxxxx and Xxxxxx Xxxxxxxxx Trust
The Xxxxxx X. Xxxxxxxxx Grantor Retained Annuity Trust
Xxxxx X. Xxxxx, Senior Vice President and Chief Financial Officer
Xxxxxxx X. Xxxxxx, General Counsel and Secretary
Xxxxxx X. Xxxxxxx, Acting Chief Accounting Officer
Xxxxx Xxxxxxx, Director
Xxxxxxx X. Xxxxxx, Director
Xxxxxxx X. Xxxxx, Director
Xxxxx X. Xxxxxxx, Director
Xxxxx X. Xxxxxx, Director
49