Exhibit 1
Xxxxx & XxXxxxxx Companies, Inc.
_____________ Shares
Common Stock
Underwriting Agreement
, 1997
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
As joint lead managers of the
several underwriters acting as managers
listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
The persons named in Schedule II hereto (the "Selling Shareholders")
propose to sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters"), all of whom are acting as Managers, and for whom you are acting
as joint lead managers (the "Lead Managers"), and the Underwriters propose to
purchase from such Selling Shareholders, an aggregate of shares
of Common Stock, par value $1.00 per share (the "Common Stock"), of Xxxxx &
XxXxxxxx Companies, Inc., a Delaware corporation (the "Company"), which Common
Stock is referred to herein as the "Shares".
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it shall become effective, or, if a
post-effective amendment is filed with respect thereto, as amended by such
post-effective amendment at the time of its effectiveness, including in each
case information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act, is
referred to in this Agreement as the "Registration Statement", and the
prospectus as supplemented by the prospectus supplement relating to the sale of
the Shares by the Underwriters in the form first used to confirm sales of Shares
is referred to in this Agreement as the "Prospectus". Any reference in this
Agreement to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") that are deemed to be incorporated
by reference therein. References herein to any preliminary prospectus shall be
deemed to refer to any preliminary prospectus relating to the sale of the Shares
by the Underwriters.
The Company and the Selling Shareholders wish to confirm as follows their
respective agreements with you and the other several Underwriters on whose
behalf you are acting, in connection with the several purchases of the Shares by
the Underwriters:
1. Each Selling Shareholder hereby agrees to sell to each Underwriter as
hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase at a price of
$___ per Share (the "Purchase Price") from such Selling Shareholder the
respective number of Shares (subject to such adjustments to eliminate any
fractional shares as the Lead Managers in their sole discretion may make) that
bears the same proportion to the number of Shares to be sold by such Selling
Shareholder to the Underwriters as set forth on Schedule II hereto as the number
of Shares set forth opposite the name of such Underwriter on Schedule I hereto
(or such number of Shares increased as set forth in Section 11 hereof), bears to
the total number of Shares.
Certificates in transferable form for the Shares which each of the Selling
Shareholders agrees to sell pursuant to this Agreement have been placed in
custody with Xxxxxx Trust and Savings Bank, as custodian (the "Custodian"), for
delivery under this Agreement pursuant to a Custody Agreement executed by each
Selling Shareholder (individually, a "Custody Agreement").
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Each Selling Shareholder agrees that (i) the Shares of such Selling
Shareholder represented by the certificates held in custody pursuant to such
Selling Shareholder's Custody Agreement are subject to the interests of the
Underwriters, (ii) the arrangements made by such Selling Shareholder for such
custody are, except as specifically provided in such Selling Shareholder's
Custody Agreement, irrevocable, and (iii) the obligations of such Selling
Shareholder hereunder and under such Selling Shareholder's Power (as defined
below) and Custody Agreement shall not be terminated by any act of such Selling
Shareholder or by operation of law, whether by the death or incapacity of such
Selling Shareholder or by the occurrence of any other event or events including,
without limitation, the termination of any trust or estate if such Selling
Shareholder is a trust or estate, the death or incapacity of one or more
trustees, guardians, executors or administrators for such Selling Shareholder or
the dissolution or liquidation of such Selling Shareholder if such Selling
Shareholder is a corporation or partnership. If any Selling Shareholder shall
dissolve or liquidate or if any other such event or events shall occur before
the delivery of the Shares hereunder, certificates for the Shares of such
Selling Shareholder shall be delivered to the Underwriters by Xxxxxx Xxxxxx,
Xxxxxxx X. Xxxxx or Xxxxxx X. Xxxx or any other person to be named as an
attorney-in-fact (collectively, the "Attorneys-in-Fact"), acting as agents and
attorneys-in-fact of such Selling Shareholder pursuant to an irrevocable power
of attorney signed by such Selling Shareholder (individually, a "Power") in
accordance with the terms and conditions of this Agreement and such Selling
Shareholder's Power and Custody Agreement as if such dissolution or liquidation
or other such event or events had not occurred, and any actions taken by such
Attorneys shall be valid as if such event had not occurred regardless of whether
or not the Attorneys-in-Fact or any Underwriter shall have received notice of
such dissolution, liquidation or other event.
Each Selling Shareholder has authorized each Attorney-in-Fact, on behalf of
such Selling Shareholder, to, among other acts, execute this Agreement and any
receipts, notices, requests and instructions in connection with the sale of the
Shares to be sold hereunder by such Selling Shareholder, to make delivery of the
certificates for such Shares, to receive the proceeds of the sale of such
Shares, to give receipts for such proceeds, to pay therefrom any expenses to be
borne by such Selling Shareholder in connection with the sale and public
offering of such Shares, to distribute the balance thereof to such Selling
Shareholder and to take such other action as may be necessary or desirable in
connection with the transactions contemplated by this Agreement.
2. The Company and the Selling Shareholders understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
the Registration Statement and this Agreement have become effective as in the
judgment of the Lead Managers is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
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3. Payment for the Shares shall be made to the order of the Custodian by
wire transfer of immediately available funds to such account as an
Attorney-in-Fact shall designate against delivery of the Shares as set forth
below and closing of the sale of the Shares shall be made at the offices of
Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such
other location as you shall designate at 10:00 A.M., New York City time on
, 1997, or at such other time on the same or such other date, not later
than the fifth Business Day thereafter, as the Lead Managers and an
Attorney-in-Fact on behalf of the Selling Shareholders may agree upon in
writing. The time and date of such payment for the Shares are referred to herein
as the Closing Date. As used herein, the term "Business Day" means any day other
than a day on which banks are permitted or required to be closed in New York
City.
Payment for the Shares to be purchased on the Closing Date shall be made
against delivery to the Lead Managers for the respective accounts of the several
Underwriters of the Shares registered in such names and in such amounts as the
Lead Managers shall request in writing not later than one full Business Day
prior to the Closing Date, with any transfer taxes payable in connection with
the transfer to the Underwriters of the Shares duly paid. The certificates for
the Shares will be made available for inspection and packaging by the Lead
Managers in New York, New York not later than 1:00 P.M., New York City time, on
the Business Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter and to each
Selling Shareholder that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule
424 under the Securities Act, complied when so filed in all material
respects with the Securities Act, 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 that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Lead Managers
expressly for use therein and in the case of the representation and
warranty made to the Selling Shareholders, shall not apply to
statements or omissions made in reliance upon and in conformity with
information relating to any Selling Shareholder expressly for use
therein;
(b) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
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purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and
Prospectus, as amended or supplemented, if the Company shall have
furnished amendments or supplements thereto, comply, or will comply,
as the case may be, in all material respects with the Securities Act
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of
the Prospectus and any amendment or supplement thereto, 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, as amended or supplemented
at the Closing Date, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
the foregoing representations and warranties shall not apply to
statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Lead Managers expressly for use therein
and, in the case of the representation and warranty made to the
Selling Shareholders, shall not apply to statements or omissions in
the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Selling Shareholder
furnished to the Company in writing by such Selling Shareholder
expressly for use therein; and the documents incorporated by reference
in the Prospectus, when they were filed with the Commission, conformed
in all material respects to the requirements of the Exchange Act and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to
the requirements of the Exchange Act, and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) the financial statements of the Company and the related notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects
the financial position of the Company as of the dates indicated and
the results of its operations and the changes in its cash flows for
the periods specified; and said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis; the financial statements of Xxxxxxx &
Xxxxxxx and the related notes thereto,
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included or incorporated by reference in the Registration Statement
and Prospectus present fairly in all material respects the financial
position of Xxxxxxx & Xxxxxxx as of the date indicated and the results
of operations and the changes in its cash flows for the period
specified in accordance with generally accepted accounting principles;
and the pro forma financial information, and the related notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus have been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and are based upon good faith estimates and assumptions
believed by the Company to be reasonable;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken as a
whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation 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, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(f) each of the subsidiaries of the Company that is listed on
Exhibit A hereto (each a "Significant Subsidiary") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business and is in
good
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standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and, except as described or
incorporated by reference in or contemplated by the Prospectus, all
the outstanding shares of capital stock of each subsidiary have been
duly authorized and validly issued, are fully-paid and non-assessable,
and are owned by the Company, directly or indirectly, free and clear
of all liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the authorized capital stock of the Company conforms as to
legal matters to the description thereof set forth or incorporated by
reference in the Registration Statement and the Prospectus, and all of
the outstanding shares of capital stock of the Company (including the
Shares to be sold by the Selling Shareholders) have been duly
authorized and validly issued, are fully-paid and non-assessable, are
not subject to any preemptive or similar rights; and, except as
described in or expressly contemplated by the Prospectus (including
grants of options under employee plans described therein), there are
no outstanding rights (including, without limitation, preemptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity
interests in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company or any
such subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options;
(i) the performance by the Company of its obligations under this
Agreement, and the consummation of the transactions contemplated
herein will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Company's Certificate of
Incorporation or By-Laws, or any applicable law or
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statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties, except for any
such breaches, conflicts, defaults or violations which individually or
in the aggregate would not have a material adverse affect on the
Company and its subsidiaries taken as a whole; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
registration of the Shares by the Company or the consummation by the
Company of the transactions contemplated by this Agreement, except
such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and as
may be required under state securities or Blue Sky laws;
(j) other than as set forth or contemplated or incorporated by
reference in the Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its subsidiaries is or may be a party or
to which any property of the Company or any of its subsidiaries is or
may be the subject which, individually or in the aggregate, would
reasonably be expected to have a material adverse effect on the
business, operations or condition, financial or otherwise, of the
Company and any of its subsidiaries taken as a whole; and there are no
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required;
(k) except as set forth or incorporated by reference in the
Registration Statement and the Prospectus, no person has the right to
require the Company to register any securities for offering and sale
under the Securities Act by reason of the filing of the Registration
Statement with the Commission or the sale of the Shares by the Selling
Shareholders;
(l) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended; and
5. Each Selling Shareholder severally represents and warrants to each
Underwriter that:
(a) such Selling Shareholder is the lawful owner of the Shares
and has, and on the Closing Date will have, good and clear
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title to the Shares to be sold on such Closing Date by such Selling
Shareholder, free and clear of all restrictions on transfer, liens,
encumbrances, security interests and claims, whatsoever;
(b) upon delivery of and payment for the Shares such Selling
Shareholder is selling pursuant to this Agreement, good and clear
title to such Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests and
claims, whatsoever;
(c) such Selling Shareholder has, and on the Closing Date will
have, full legal right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Shareholder in the manner provided herein, and
this Agreement, when executed and delivered in accordance with the
terms of the Power, will be, a valid and binding agreement of such
Selling Shareholder;
(d) such Selling Shareholder's Custody Agreement, Power and
Notice of Election dated as of April 24, 1997 ("Notice of Election")
have been duly executed and delivered by or on behalf of such Selling
Shareholder and are valid and binding agreements of such Selling
Shareholder, enforceable in accordance with their terms; and pursuant
to the Power such Selling Shareholder has authorized the
Attorneys-in-Fact named therein, or any one of them, to execute and
deliver on such Selling Shareholder's behalf this Agreement and any
other document an Attorney-in-Fact may deem necessary or desirable in
connection with transactions contemplated hereby and by such Power and
to deliver the Shares pursuant to this Agreement;
(e) such Selling Shareholder has not taken, and will not take,
directly or indirectly, any action designed to, 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 pursuant to the distribution
contemplated by this Agreement and other than as permitted by the
Securities Act, such Selling Shareholder has not distributed and will
not distribute any prospectus or other offering material in connection
with the offering and sale of the Shares;
(f) the execution, delivery and performance of such Selling
Shareholder's Power, this Agreement, the Custody Agreement and the
Notice of Election by or on behalf of such Selling Shareholder,
compliance by such Selling Shareholder with all the provisions
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hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not require any consent,
approval, authorization or other order of, or qualification with, any
court or governmental agency or body (except such as may be required
under the securities or Blue Sky laws of the various states) and will
not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the organizational documents of
such Selling Shareholder, if not an individual, or any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which
such Selling Shareholder is a party or by which such Selling
Shareholder or property of such Selling Shareholder is bound, or
violate or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or governmental body or agency
having jurisdiction over the undersigned or property of such Selling
Shareholder;
(g) the information in such Selling Shareholder's Registration
Questionnaire dated as of April 24, 1997 (the "Registration
Questionnaire") does not, and will not on the Closing Date, 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, in the light of the circumstances under which they were made,
not misleading; and
(h) certificate(s) in negotiable form for the number of Shares to
be sold by such Selling Shareholder under this Agreement have been
placed in custody with the Custodian for the purpose of effecting
delivery under this Agreement.
6. The Company covenants and agrees with the several Underwriters as
follows:
(a) to use its best efforts to cause the Registration Statement
to become effective at the earliest possible time and, if required, to
file the final Prospectus with the Commission within the time periods
specified by Rule 424(b) and Rule 430A under the Securities Act;
(b) to deliver, at the expense of the Company, to the Lead
Managers, three signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits and if requested documents incorporated by reference
therein, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case without exhibits but including the documents
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incorporated by reference therein and, prior to 10:00 a.m. New York
City time on the Business Day next succeeding the date of this
Agreement in New York City and during the period mentioned in
paragraph (e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein) as the Lead Managers may
reasonably request;
(c) through the period specified in clause (e) below, before
filing any amendment or supplement described in clause (e) to the
Registration Statement or the Prospectus (whether before or after the
time the Registration Statement becomes effective) to furnish to the
Lead Managers a copy of the proposed amendment or supplement for
review and not to file any such proposed amendment or supplement to
which the Lead Managers reasonably object;
(d) through the period specified in clause (e) below, to advise
the Lead Managers promptly, and if requested, and to confirm such
advice in writing, (i) when the Registration Statement shall become
effective, (ii) when any amendment described in clause (e) to the
Registration Statement shall have become effective, (iii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus described
in clause (e) or for any additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to any suspension of the qualification
of the Shares for offer and sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order or notification
and, if issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the written opinion of Xxxxx Xxxx
& Xxxxxxxx, counsel for the Underwriters, a prospectus relating to the
Shares is required by law to be delivered in connection with sales by
the Underwriters or any dealer, any event shall occur as a result of
which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at
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the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses the Lead Managers will furnish to the
Company) to which Shares may have been sold by the Lead Managers on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
(f) to make generally available to its security holders and to
the Lead Managers as soon as practicable an earnings statement
covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the effective date of
the Registration Statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(g) for a period of 90 days after the date of the Prospectus,
without the prior written consent of X.X. Xxxxxx Securities Inc. not
to (i) offer, sell, contract to sell or grant any option to purchase
or otherwise dispose of any Common Stock of the Company, or any
securities convertible into or exercisable or exchangeable for Common
Stock of the Company or enter into any swap or other agreement that
transfers, in whole or in part, the economic consequences of ownership
of Common Stock, other than the Shares to be sold hereunder, any
shares of Common Stock issued in connection with existing employee
stock option and incentive plans and any shares of Common Stock issued
as consideration in an
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acquisition or (ii) file any registration statement under the
Securities Act with respect to Common Stock of the Company or any
securities convertible into or exercisable or exchangeable for Common
Stock other than in connection with the registration of Shares issued
as consideration in an acquisition; and
(h) to pay all costs and expenses incident to the performance of
the obligations of the Company and the Selling Shareholders hereunder,
including without limiting the generality of the foregoing, all costs
and expenses (i) incident to the preparation, issuance, execution and
delivery of unlegended certificates evidencing the Shares, (ii)
incident to the preparation, printing and filing under the Securities
Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) in connection with the listing of the
Shares on the New York Stock Exchange, Chicago Stock Exchange, Pacific
Stock Exchange and London Stock Exchange, (iv) filing fees incident to
the clearance of the offering by the National Association of
Securities Dealers, Inc. and (v) in connection with the delivery of
this Agreement, all other agreements relating to underwriting and
syndication arrangements, and the furnishing to the Underwriters and
dealers of copies of the Registration Statement and the Prospectus,
including mailing and shipping, as herein provided.
7. Each of the Selling Shareholders severally covenants and agrees with
the several Underwriters as follows:
(a) such Selling Shareholder will do or perform or cause to be
done or performed all things required to be done or performed by such
Selling Shareholder prior to the Closing Date to satisfy all
conditions precedent to the delivery of the Shares pursuant to this
Agreement; and
(b) such Selling Shareholder agrees to pay or cause to be paid
all taxes, if any, on the transfer and sale of the Shares being sold
by such Selling Shareholder.
8. The several obligations of the Underwriters hereunder to purchase the
Shares are subject to the following additional conditions:
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(a) the Registration Statement shall have become effective (or if
a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective) prior to the execution of this Agreement and no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests by the Commission for
additional information shall have been complied with to the reasonable
satisfaction of the Lead Managers;
(b) the representations and warranties of the Company contained
herein shall be true and correct on and as of the Closing Date as if
made on and as of the Closing Date and the Company shall have complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change with
negative implications, in the rating accorded any securities of or
guaranteed by the Company by any "nationally recognized statistical
rating organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus there shall not have
been any material adverse change or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus (exclusive, in each case, of
any amendments or supplements thereto subsequent to the date of this
Agreement), the effect of which in the judgment of the Lead Managers
makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Prospectus;
(e) the Lead Managers shall have received on and as of the
Closing Date a certificate of the Company signed by an executive
officer of the Company satisfactory to the Lead Managers to the effect
set forth in subsections (a) through (c) of this Section and to
14
the further effect that there has not occurred any material adverse
change or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Registration
Statement and the Prospectus (exclusive, in each case, of any
amendments or supplements thereto subsequent to the date of this
Agreement); the foregoing certificate shall also be addressed to the
Selling Shareholders;
(f) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Company, shall have furnished to the Lead Managers their written
opinion, dated the Closing Date, in form and substance satisfactory to
the Lead Managers and addressed to the Underwriters and the Selling
Shareholders, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus;
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the authorized capital stock of the Company conforms as
to legal matters to the description thereof set forth or
incorporated by reference in the Registration Statement and the
Prospectus, and the Shares to be sold by the Selling Shareholders
have been duly authorized and validly issued, are fully-paid and
non-assessable, and are not subject to any preemptive or similar
rights;
(iv) the performance by the Company of its obligations under
this Agreement, and the consummation of the transactions
contemplated herein will not result in any violation of the
provisions of the Company's Certificate of Incorporation or
By-Laws, or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of their respective properties, except for any such violations
which individually or in the aggregate would not have a material
adverse affect on the Company and its subsidiaries taken as a
whole; and no consent, approval, authorization, order,
registration or
15
qualification of or with any such court or governmental agency or
body is required for the registration of the Shares by the
Company or the consummation by the Company of the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, registrations or qualifications as have been
obtained under the Securities Act and as may be required under
state securities or Blue Sky laws;
(v) the Company is not an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended;
(vi) the statements in the Prospectus under "Underwriting"
insofar as they relate to the Underwriting Agreement and in the
Company's Registration Statements on Form 8-A dated May 22, 1969
and September 21, 1987, as amended, insofar as such statements
constitute a summary of legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents or proceedings; and
(vii) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (except for the financial statements and related
schedules and other financial and statistical data included or
incorporated by reference therein as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and has no reason to
believe that (except as stated above) the Registration Statement
and the prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that (except as stated above) the Prospectus as
amended or supplemented, if applicable, contains any untrue
statement of a material fact or omits 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.
16
(g) Xxxxxxx X. Xxx Xxxxx, General Counsel and Secretary of the
Company, shall have furnished to the Lead Managers his written
opinion, dated the Closing Date, in form and substance satisfactory to
the Lead Managers and addressed to the Underwriters and the Selling
Shareholders, to the effect that:
(i) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(ii) each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and, except as described or incorporated by reference
in or contemplated by the Prospectus, all the outstanding shares
of capital stock of each Significant Subsidiary have been duly
authorized and validly issued, are fully-paid and non-assessable,
and are owned by the Company, directly or indirectly, free and
clear of all liens, encumbrances, security interests and claims;
(iii) the performance by the Company of its obligations under
this Agreement, and the consummation of the transactions
contemplated herein will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Company or any of its Significant Subsidiaries is a party or by
which the Company or any of its Significant Subsidiaries is bound
or to which any of the property or assets of the Company or any
of its Significant Subsidiaries is subject, except for any such
breaches, conflicts or defaults which individually or in the
aggregate would not have a material adverse affect on the Company
and its subsidiaries taken as a whole;
17
(iv) other than as set forth or contemplated or incorporated
by reference in the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of such
counsel, threatened to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject
which, individually or in the aggregate, would reasonably be
expected to have a material adverse effect on the business,
operations or condition, financial or otherwise, of the Company
and any of its subsidiaries taken as a whole; and such counsel
does not know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(v) except as set forth or incorporated by reference in
the Registration Statement and the Prospectus, such counsel does
not know of any right to require the Company to register any
securities for offering and sale under the Securities Act by
reason of the filing of the Registration Statement with the
Commission or the sale of the Shares by the Selling Shareholders;
(vi) the statements in or incorporated by reference into the
Company's Annual Report on Form 10-K for the year ended
December 31, 1996 under "Regulation", "Legal Proceedings" and
"Certain Relationships and Related Transactions" insofar as such
statements constitute a summary of legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents or
proceedings; and
(vii) such counsel is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements and related
schedules and other financial and statistical data included
therein as to which such counsel need express no opinion)
complied as to form in all material respects, when filed with the
Commission, with the Exchange Act.
18
In rendering the opinions described in paragraphs (f) and (g) above, such
counsel may rely as to matters of fact, to the extent such counsel deems proper,
on certificates of responsible officers of the Company and certificates or other
written statements of officials or jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. With
respect to the matters to be covered in subparagraph (vii) of paragraph (f)
above, counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto (other than the documents
incorporated by reference therein) and review and discussion of the contents
thereof (including the documents incorporated by reference therein) but is
without independent check or verification except as specified. With respect to
the matters to be covered in subparagraph (vii) of paragraph (g) above, counsel
may state his opinion and belief is based upon his participation in the
preparation of the documents incorporated by reference in the Registration
Statement and the Prospectus and any amendment or supplement thereto and review
and discussion of the contents thereof but is without independent check or
verification except as specified.
(h) Xxxxxxxx & Xxxxxxxx, counsel for the Selling Shareholders,
shall have furnished to the Lead Managers their written opinion, dated
the Closing Date, in form and substance satisfactory to the Lead
Managers, to the effect that:
(i) each Selling Shareholders' Custody Agreement and Power
has been duly executed and delivered by the applicable Selling
Shareholder and constitutes a valid and legally binding agreement
of such Selling Shareholder enforceable in accordance with its
terms, subject to bankruptcy insolvency fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and except as the indemnification
provisions may be invalid or unenforceable under applicable law
because they violate public policy;
(ii) the agreement of each Selling Shareholder set forth in
the last paragraph of such Selling Shareholder's Notice of
Election has been duly executed and delivered by such Selling
Shareholder and constitutes a valid and legally binding agreement
of such Selling Shareholder enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(iii) this Agreement has been duly executed and delivered
on behalf of each Selling Shareholder and constitutes a valid and
legally binding agreement of each Selling Shareholder enforceable
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles and except as the
indemnity and contribution provisions may be invalid or
unenforceable because they violate public policy;
(iv) upon payment for and delivery of the Shares being sold
by each Selling Shareholder pursuant to this Agreement in the
State of New York the Underwriters will have acquired the Shares
free of any adverse claim within the meaning of Section 8-302 of
the New York Uniform Commercial Code; and
(v) the statements in the Prospectus under "Selling
Stockholders" comply as to form in all material respects with the
Securities Act.
19
In rendering the foregoing opinions, such counsel may state that they
express no opinion on the laws of any jurisdiction other than the Federal laws
of the United States and the laws of the State of New York.
The opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxxxxx X. Xxx
Xxxxx and Xxxxxxxx & Xxxxxxxx described in paragraphs (f) - (h) above shall be
rendered to you at the request of the Company or the Selling Shareholders, as
the case may be, and shall so state therein.
(i) on the date of the Prospectus and the effective date of the
most recently filed post-effective amendment to the Registration
Statement, if any, and also on the Closing Date, Deloitte & Touche LLP
and Xxxxxx Xxxxxxxx LLP shall have furnished to the Lead Managers
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to the Lead Managers and addressed to the
Underwriters and the Selling Shareholders, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference
in the Registration Statement and the Prospectus;
(j) the Lead Managers shall have received on and as of the
Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the
Underwriters, with respect to the Registration Statement, the
Prospectus and other related matters as the Lead Managers 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;
(k) the representations and warranties of the Selling
Shareholders contained herein shall be true and correct on and as of
the Closing Date as if made on and as of the Closing Date, and you
shall have received a certificate dated the Closing Date and signed by
or on behalf of the Selling Shareholders to the effect set forth in
this Section 8(j) and in Section 8(k) hereof;
(l) the Selling Shareholders shall have complied with all
agreements and satisfied all conditions on their part to be performed
or satisfied at or prior to the Closing Date; and
20
(m) the Lead Managers shall have received executed copies of each
Selling Shareholder's Notice of Election and each Notice of Election
of any Selling Stockholder (as defined in the Prospectus) not electing
to participate in the offering described in the prospectus supplement
relating to the Shares; and
(n) on or prior to the Closing Date, the Company and each Selling
Shareholder shall have furnished to the Lead Managers such further
certificates and documents as the Lead Managers shall reasonably
request.
9. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Lead Managers expressly for use therein; PROVIDED that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares if such untrue statement or
omission or alleged untrue statement or omission made in such preliminary
prospectus is eliminated or remedied in the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) and if a copy of the Prospectus (as so amended or supplemented) was
required by law to be furnished but was not so furnished to such person at or
prior to the written confirmation of the sale of such Shares to such person.
Each Selling Shareholder agrees, severally and not jointly, to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material
21
fact contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with reference
to information relating to such Selling Shareholder furnished in writing by or
on behalf of such Selling Shareholder for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement, the Selling Shareholders and each person who controls the Company or
any Selling Shareholder within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Lead Managers expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the three
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding as described below and
shall pay the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing
22
interests between them. It is understood that the Indemnifying Person shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) (a) for all Underwriters and all persons, if
any, who control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (b) for the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section and (c)
for all Selling Shareholders and all persons, if any, who control any Selling
Shareholder within the meaning of either such Section, and that all such fees
and expenses shall be reimbursed as they are incurred. Any such separate firm
for the Underwriters and such control persons of the Underwriters shall be
designated in writing by X.X. Xxxxxx Securities Inc.; any such separate firm for
the Company, its directors, its officers who sign the Registration Statement and
such control persons of the Company shall be designated in writing by the
Company; and any such separate firm for the Selling Shareholders and such
control persons of Selling Shareholders shall be designated by an
Attorney-in-Fact. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request (the "Measurement Date") and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement; PROVIDED that an Indemnifying Person shall
not be liable for any such settlement effected without its consent if such
Indemnifying Person (1) reimburses such Indemnified Person in accordance with
such request to the extent it considers such request to be reasonable, (2)
provides written notice to the Indemnified Person substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement, and
(3) the Indemnifying Person agrees that, if it subsequently pays some or all of
the unpaid balance, it will pay interest on the amount of the unpaid balance so
paid from the Measurement Date to the date of actual payment at a per annum rate
equal to the sum of the prime rate then in effect as announced by Xxxxxx
Guaranty Trust Company of New York plus 2.0%. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
23
If the indemnification provided for in the first, second or third
paragraphs of this Section 9 is unavailable to an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnified Person from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and the Selling Shareholders on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Selling Shareholders in the aggregate shall be deemed to be the net proceeds
from the offering of the Shares (before deducting expenses) received by the
Selling Shareholders, the relative benefits received by the Company shall be
deemed to be the same amount and the relative benefits received by the
Underwriters shall be deemed to be the total underwriting discounts and
commissions received by the Underwriter in each case as set forth in the table
on the cover of the Prospectus. The relative fault of the Company and the
Selling Shareholders on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Selling Shareholders or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 9 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 that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation
24
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective number of Shares set forth
opposite their names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 9 are
in addition to any liability which the Indemnifying Persons may otherwise have
to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 9 and
the representations and warranties of the Company and the Selling Shareholders
set forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter, by
or on behalf of any Selling Shareholder or any person controlling any Selling
Shareholder or by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Shares.
10. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Lead Managers, by notice given to
the Company and the Attorneys-in-Fact, if after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange or the Chicago Board of Trade, (ii) trading
of any securities of the Company shall have been suspended or materially limited
in any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either U.S. Federal or New
York State authorities or exchange controls shall have been imposed by the
United States, or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Lead Managers, is material and adverse and which, in the
judgment of the Lead Managers, makes it impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus.
11. This Agreement shall become effective upon execution and delivery
hereof by or on behalf of the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Shares which it or they have agreed to purchase hereunder on
such date, and the aggregate number of Shares which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of Shares to be purchased on such date, the
25
other Underwriters shall be obligated severally in the proportions that the
number of Shares set forth opposite their respective names in Schedule I hereto
bears to the aggregate number of Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Lead Managers
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 11 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Shares which it or they have
agreed to purchase hereunder on such date, and the number of Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
Shares to be purchased on such date, and arrangements satisfactory to the Lead
Managers, the Selling Shareholders and the Company for the purchase of such
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter, the
Selling Shareholders or the Company. In any such case the Lead Managers, the
Selling Shareholders or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
12. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or any
Selling Shareholder to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company or any Selling Shareholder
shall be unable to perform its obligations under this Agreement or the Custody
Agreement or the Power of such Selling Shareholder or any condition of the
Underwriters' obligations cannot be fulfilled, the Company agrees to reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
13. This Agreement shall inure to the benefit of and be binding upon the
Company, each Selling Shareholder, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
26
14. Any action by the Underwriters hereunder may be taken by the Lead
Managers jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by the Lead Managers jointly or by X.X.
Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Lead
Managers c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (facsimile: (000) 000-0000); Attention: Syndicate Department. Notices to
the Company shall be given to it at Xxxxx & McLennan Companies, Inc., 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000; (facsimile:
212-345-4647); Attention: Xxxxxxx X. Xxx Xxxxx. Notices to the Selling
Shareholders shall be given to the Attorneys-in-Fact, c/o Johnson & Xxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (facsimile: 212-574-8900);
Attention: Xxxxxx Xxxx.
15. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the conflicts of laws provisions
thereof.
27
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
XXXXX & XXXXXXXX COMPANIES, INC.
By: __________________________________
Title:
EACH OF THE SELLING SHAREHOLDERS
NAMED IN SCHEDULE II HERETO
By: __________________________________
Name:
Attorney-in-Fact
Accepted: , 1997
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
Acting severally on behalf of themselves
and the several Underwriters listed
in Schedule I hereto.
By: X.X. XXXXXX SECURITIES INC.
By: _____________________________
Title:
28
SCHEDULE I
Number of
Shares
Underwriters To Be Purchased
------------ ---------------
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
PaineWebber Incorporated _______________
TOTAL: ===============
SCHEDULE II
Number of
Shares
Selling Shareholder To Be Sold
------------------- ----------
__________
TOTAL: ==========
EXHIBIT A
