Underwriting Agreement
Exhibit
1.1
Class
A Common Stock, par value $0.01 per share
May 29,
2009
Xxxxxxx,
Xxxxx & Co.,
00 Xxxxx
Xxxxxx,
Xxx Xxxx,
Xxx Xxxx 00000.
Ladies
and Gentlemen:
The shareholders of Lazard Ltd, a
company incorporated under the laws of Bermuda (the “Company”), named in
Schedule II hereto (the “Selling Shareholders”), propose to enter into a
Pricing Agreement (the “Pricing Agreement”) in the form of Annex V hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to sell to the
Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate
number of shares identified in such Pricing Agreement (the “Shares”) of
Class A common stock, par value $0.01 per share (“Stock”), of the
Company. In the event only one underwriter is listed in Schedule I
hereto, references in this Agreement to the “Underwriters” and the
“Representatives” shall be deemed to refer to the sole underwriter in the
singular form listed in such Schedule I.
Except as expressly provided in Section
3 hereof, this Agreement is not (and shall not be construed as) an obligation of
the Selling Shareholders to sell any of the Shares or as an obligation of any of
the Underwriters to purchase any of the Shares. The obligation of the
Selling Shareholders to sell any of the Shares and the obligation of any of the
Underwriters to purchase any of the Shares, if any, shall be evidenced by the
Pricing Agreement. The Pricing Agreement shall specify the aggregate
number of Shares and the purchase price per Share. The Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under
this Agreement and the Pricing Agreement shall be several and not
joint. For clarity, nothing in this Agreement shall require any party
to execute and deliver the Pricing Agreement and each party may refuse to
execute and deliver the Pricing Agreement for any reason or no
reason.
If (i) the Pricing Agreement shall not
have become effective on or prior to June 5, 2009 at 5 p.m. or (ii) the parties
hereto shall have entered into a pricing agreement with respect to an
alternative transaction, then this Agreement shall automatically terminate
without
any action on the part of any party hereto. Upon such termination, no
party shall have any obligations or liabilities hereunder.
For the avoidance of doubt, it shall be
understood and agreed by the parties hereto that any and all references in this
Agreement and the Pricing Agreement to “subsidiaries” of the Company shall be
deemed to include Lazard Group LLC, a Delaware limited liability company
(“Lazard Group”), and each other significant subsidiary of the Company as such
term is defined in Rule 1-02(w) of Regulation S-X as promulgated by the
Securities and Exchange Commission (the “Commission”).
1. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) An
“automatic shelf registration statement” as defined under Rule 405 under
the Securities Act of 1933, as amended (the “Act”), on Form S-3 (File
No. 333-138855) in respect of the Shares has been filed with the Commission
not earlier than three years prior to the date of the Pricing Agreement; such
registration statement, and any post-effective amendment thereto, became
effective on filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission, and no notice
of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has
been received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of the Pricing Agreement, is
hereinafter called the “Basic Prospectus”; any preliminary prospectus (including
any preliminary prospectus supplement) relating to the Shares filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter called a
“Preliminary Prospectus”; the various parts of such registration statement,
including all exhibits thereto but excluding Form T-1 and including any
prospectus supplement relating to the Shares that is filed with the Commission
and deemed by virtue of Rule 430B to be part of such registration statement,
each as amended at the time such part of the registration statement became
effective, are hereinafter collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus relating to the Shares
filed with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 7(a) hereof is hereinafter called the “Prospectus”; any reference
herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any amendment
or supplement to the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any post-effective amendment
to the Registration Statement, any prospectus supplement
relating to the Shares filed with the Commission pursuant to Rule 424(b) under
the Act and any documents filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and incorporated therein, in each case after the
date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as
the case may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date
of the Registration Statement that is incorporated by reference in the
Registration Statement; 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”);
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(b) No
stop 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 Xxxxxxx, Xxxxx & Co. or any other Underwriter by or through
Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling Shareholder
expressly for use in the preparation of answers therein to Item 7 of Form S-3
under the Act;
(c) For
the purposes of this Agreement and the Pricing Agreement, the “Applicable Time”
shall be the time designated as such in the Pricing Agreement. The
Pricing Prospectus as supplemented by each Issuer Free Writing Prospectus to be
listed on Schedule III(a)(i) to the Pricing Agreement and the pricing
information provided orally by the Underwriters to be listed on
Schedule III(d) to the Pricing Agreement (collectively, the “Pricing
Disclosure Package”), as of the Applicable Time, did not and will not as of the
date of the Pricing Agreement 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; and each Issuer Free Writing Prospectus to be listed on
Schedule III(a)(ii) to the Pricing Agreement will not as of the date of the
Pricing Agreement 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, will not as of the date of the
Pricing Agreement 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. expressly for use therein;
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(d) The
documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they become effective or are filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein; and no such documents were or will be filed with the Commission since
the Commission’s close of business on the business day immediately prior to the
date of the Pricing Agreement and prior to the execution of the Pricing
Agreement, except as set forth on Schedule III(c) to the Pricing
Agreement;
(e) The
Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will conform, in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by Xxxxxxx, Xxxxx & Co. or any other Underwriter by or through
Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling Shareholder
expressly for use in the preparation of the answers therein to Item 7 of Form
S-3 under the Act;
(f) Neither
the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements to be included or incorporated by reference
in the Pricing Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as to be set forth or contemplated in the Pricing Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, and other than as to be set
forth in the Prospectus, there has not been (i) any change in the capital stock
of the Company or any of its subsidiaries, (ii) any change in the amount of
long-term debt of the Company or any of its subsidiaries, or (iii) any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
shareholders’ or members’ equity or results of operations of the Company and its
subsidiaries, taken as a whole (a “Material Adverse Effect”), otherwise than as
to be set forth or contemplated in the Pricing Prospectus, including the pro
forma financial and capitalization information contained therein;
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(g) The
Company and its subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects except
such as will be 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 do not materially interfere with the
use made and proposed to be made of such property and buildings by the Company
and its subsidiaries;
(h) (i)
The Company (A) has been duly incorporated and is existing as a corporation in
good standing under the laws of Bermuda (meaning solely that it has not failed
to make any filing with any Bermuda governmental authority, or to pay any
Bermuda government fee or tax, which would make it liable to be struck off the
Register of Companies and thereby cease to exist under the laws of Bermuda),
with corporate power and authority to own its properties and conduct its
business as described in the Pricing Prospectus, (B) 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, except where the
failure to be so qualified or in good standing as a foreign corporation would
not reasonably be expected to result in a Material Adverse Effect, and (C) is
not subject to any material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; and (ii) each subsidiary of the
Company has been duly incorporated or organized and is validly existing in good
standing under the laws of its jurisdiction of incorporation or formation, as
applicable, except where the failure to be so qualified or in good standing
would not reasonably be expected to result in a Material Adverse
Effect;
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(i) The
Company has an authorized capitalization as to be set forth in the Pricing
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description of the Shares to be contained in the Pricing
Prospectus and the Prospectus; and all of the issued shares of capital stock or
other equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and (except for
directors’ qualifying shares and except as otherwise will be set forth in the
Pricing Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances or claims, except (i) such liens, encumbrances
or claims as will be described in the Pricing Prospectus or (ii) such liens,
encumbrances or claims that, individually or in the aggregate, do not materially
affect the value of such shares of capital stock or otherwise would not
reasonably be expected to result in a Material Adverse Effect;
(j) [Reserved]
(k) The
Company has been designated as a non-resident company of Bermuda for the
purposes of the Exchange Control Xxx 0000 and, as such, is free to acquire, hold
and sell foreign currency (including the payment of dividends) without
restriction;
(l) This
Agreement has been duly authorized, executed and delivered by the Company; and
upon execution of the Pricing Agreement, the Pricing Agreement will be duly
authorized, executed and delivered by the Company;
(m) The
compliance by the Company with all of the provisions of this Agreement and the
Pricing Agreement and the consummation of the transactions contemplated herein
and therein will not conflict with or result in a breach or violation of (i) 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, (ii) the provisions of the
Memorandum of Association or Bye-laws of the Company or (iii) any statute or any
order, rule or regulation of, any court or governmental agency or body or any
stock exchange authorities (a “Governmental Agency”) having jurisdiction over
the Company or any of its subsidiaries or any of their respective properties,
except, in the case of clauses (i) and (iii), for such violations that would
not, individually or in the aggregate, materially affect the value of the
Shares, the ability of the Company to consummate the transactions contemplated
hereby or by the Pricing Agreement or reasonably be expected to have a Material
Adverse Effect; and no consent, approval, authorization, order, registration, or
qualification of or with any such Governmental Agency (the “Governmental
Authorizations”) is required for the consummation by the Company of the
transactions contemplated by this Agreement and the Pricing Agreement, except
such Governmental Authorizations as have
been obtained under the Act, such Governmental Authorizations as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by or for the account of the Underwriters and such
Governmental Authorizations the failure of which to obtain would not,
individually or in the aggregate, materially affect the value of the Shares, the
ability of the Company to consummate the transactions contemplated hereby or by
the Pricing Agreement or reasonably be expected to have a Material Adverse
Effect;
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(n) Neither
the Company nor any of its subsidiaries is in violation of any of its
constituent documents, or, except for such defaults which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, is in default in the performance or observance of any
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;
(o) There
is no income or other tax of Bermuda (imposed by withholding or otherwise) on
any dividend or distribution to be made by the Company to the holders of the
Shares;
(p) Neither
the Company nor any of its subsidiaries has taken, directly or indirectly, any
action which was designed to or which has constituted or which would 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;
(q) The
statements to be 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 Shares, under the caption “Material U.S. Federal Income Tax
and Bermuda Tax Considerations”, and under the caption “Underwriting”, insofar
as they purport to describe the provisions of the laws and documents referred to
therein, will be accurate and complete summaries of such provisions in all
material respects;
(r) Other
than as will be 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, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect; and, to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by any Governmental Agency or threatened by
others;
(s) Neither
the Company nor any of its subsidiaries is or, after giving effect to the
offering and sale of the Shares, will be an “investment company”, as such term
is defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”);
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(t) The
Company and each of its subsidiaries have all licenses, franchises, permits,
authorizations, approvals and orders and other concessions of and from all
Governmental Agencies that are necessary to own or lease their other properties
and conduct their businesses as will be described in the Pricing Prospectus,
except to the extent that the failure to have or obtain such licenses,
franchises, permits, authorizations, approvals and orders would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(u) Neither
the Company nor Lazard Group is a Passive Foreign Investment Company (“PFIC”)
within the meaning of Section 1297 of the United States Internal Revenue Code of
1986, as amended, and is not likely to become a PFIC;
(v) To
its knowledge, neither the Company nor any of its subsidiaries or controlled
affiliates does business with the government of, or with any person located in
any country in a manner that violates in any material respect any of the
economic sanctions programs or similar sanctions-related measures of the United
States as administered by the United States Treasury Department’s Office of
Foreign Assets Control;
(w) To
its knowledge, neither the Company nor any of its subsidiaries or controlled
affiliates does business with the government of Cuba or with any person located
in Cuba within the meaning of Section 517.075, Florida Statutes;
(x) (A)
(i) At the time of filing the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) under the Act)
made any offer relating to the Shares in reliance on the exemption of Rule 163
under the Act, the Company was a “well-known seasoned issuer” as defined in Rule
405 under the Act; and (B) at the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Shares, the Company was not an “ineligible issuer” as defined in Rule 405 under
the Act;
(y) Deloitte
& Touche LLP, who have certified certain consolidated financial statements
of the Company, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder;
(z) The
Company’s internal control over financial reporting (as such term is defined in
Rule 13a-15(f) under the Exchange Act) is effective and the Company is not aware
of any material weaknesses in its internal control over
financial reporting;
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(aa) The
Company’s internal control over financial reporting (as such term is defined in
Rule 13a-15(f) under the Exchange Act) is sufficient to enable the
Company’s principal executive
officer and principal financial officer to satisfy, in a timely manner, their
respective certification obligations under Section 302 of the Xxxxxxxx-Xxxxx Act
of 2002; and
(bb) The
Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been designed to
ensure that material information relating to the Company and its subsidiaries is
made known to the Company’s principal executive officer and principal financial
officer by others within those entities; and such disclosure controls and
procedures are effective.
2. Each
of the Selling Shareholders severally represents and warrants to, and agrees
with, each of the Underwriters and the Company that:
(a) All
consents, approvals, authorizations and orders necessary for the execution and
delivery by such Selling Shareholder of this Agreement, the Pricing Agreement
and the Power of Attorney hereinafter referred to, and for the sale and delivery
of the Shares to be sold by such Selling Shareholder hereunder and under the
Pricing Agreement, will be obtained by the Time of
Delivery (as defined in Section 6 hereof); and such Selling Shareholder has full
right, power and authority to enter into this Agreement, the Pricing Agreement
and the Power of Attorney and to sell, assign, transfer and deliver the Shares
by the Time of Delivery to be sold by such Selling Shareholder hereunder and
under the Pricing Agreement;
(b) The
sale of the Shares to be sold by such Selling Shareholder hereunder and under
the Pricing Agreement and the compliance by such Selling Shareholder with all of
the provisions of this Agreement, the Pricing Agreement and the Power of
Attorney and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Shareholder is a party or by which such Selling
Shareholder is bound or to which any of the property or assets of such Selling
Shareholder is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of such Selling
Shareholder if such Selling Shareholder is a corporation, the Partnership
Agreement of such Selling Shareholder if such Selling Shareholder is a
partnership, the Agreement of Trust of such Selling Shareholder if such Selling
Shareholder is a charitable trust, any similar document of formation or
governing document of any Selling Shareholder or any statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over such Selling Shareholder or the property of such Selling
Shareholder;
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(c) Such
Selling Shareholder immediately prior to the Time of Delivery will have good and
valid title to the Shares to be sold by such Selling Shareholder hereunder and
under the Pricing Agreement, free and clear of all liens, encumbrances or
claims; and, upon delivery of such Shares and payment therefor pursuant hereto
and thereto, good and valid title to such Shares, free and clear of all liens,
encumbrances or claims, will pass to the several Underwriters;
(d) [Reserved]
(e) Such
Selling Shareholder 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;
(f) To
the extent that any statements or omissions made or to be made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, 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 Shareholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and any
further amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading;
(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 contemplated herein and in the Pricing
Agreement, such Selling Shareholder will deliver to you prior to or at the Time
of Delivery a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(h) Such
Selling Shareholder has duly executed and delivered a Power of Attorney, in the
form heretofore furnished to you (the “Power of Attorney”), appointing the
persons indicated in Schedule II hereto, and each of them, as such Selling
Shareholder’s attorneys-in-fact (the “Attorneys-in-Fact”) with authority to
execute and deliver this Agreement and the Pricing Agreement on behalf of such
Selling Shareholder, to determine the purchase price to be paid by the
Underwriters to the Selling Shareholders as provided in Section 3 hereof,
to authorize the delivery of the Shares to be sold by such Selling Shareholder
hereunder and under the Pricing Agreement and otherwise to act on behalf of such
Selling Shareholder in
connection with the transactions contemplated by this Agreement and the Pricing
Agreement;
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(i) The
Shares will be, at the Time of Delivery, subject to the interests of the
Underwriters hereunder; the arrangements made by such Selling Shareholder for
the appointment by such Selling Shareholder of the Attorneys-in-Fact by the
Power of Attorney are to that extent irrevocable; the obligations of the Selling
Shareholders hereunder and under the Pricing Agreement shall not be terminated
by operation of law, whether by the death or incapacity of any individual
Selling Shareholder or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such estate or
trust, or in the case of a partnership or corporation, by the dissolution of
such partnership or corporation, or by the occurrence of any other event; if any
individual Selling Shareholder or any such executor or trustee should die or
become incapacitated, or if any such estate or trust should be terminated, or if
any such partnership or corporation should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder and under the
Pricing Agreement, certificates representing the Shares shall be delivered by or
on behalf of the Selling Shareholders in accordance with the terms and
conditions of this Agreement and of the Pricing Agreement; and actions taken by
the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if
such death, incapacity, termination, dissolution or other event had not
occurred, regardless of whether or not the Attorneys-in-Fact, or any of them,
shall have received notice of such death, incapacity, termination, dissolution
or other event; and
(j) The
net proceeds from the offering of Shares contemplated hereby and by the Pricing
Agreement and any concurrent offering will not be used to fund any operations
in, finance any investments in or make any payments to any country, or to make
any payments to any person, in a manner that violates in any material respect
any of the economic sanctions of the United States administered by the United
States Treasury Department’s Office of Foreign Assets Control.
3. Subject
to the terms and conditions set forth herein and conditioned upon the execution
of the Pricing Agreement and the closing of the purchase of the Shares
contemplated thereby, the Selling Shareholders agree, severally and not jointly,
to sell, and Lazard Group agrees to purchase, through Xxxxxxx, Xxxxx & Co.,
as agent, from the Selling Shareholders, an aggregate of 1,700,000 shares
of Stock of the Company at the same purchase price per share paid by the
Underwriters to be specified by the Pricing Agreement (with any such purchase
and sale of Stock being allocated ratably among the Selling Shareholders based
upon the aggregate number of shares of Stock to be sold by the Selling
Shareholders under this Agreement and the Pricing Agreement (to be adjusted by
Lazard Group so as to eliminate fractional shares)).
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Lazard Group hereby appoints Xxxxxxx,
Xxxxx & Co. as its agent in connection with its purchase contemplated by
this Section 3 and authorizes Xxxxxxx, Sachs & Co. to act on
its behalf in accordance therewith, and the Company and the Selling Shareholders
hereby acknowledge and agree to such appointment. In connection with
appointment such as this, it is Xxxxxxx, Xxxxx & Co.’s policy to receive
indemnification. Lazard Group agrees to the provisions with respect
to the indemnity of Xxxxxxx, Xxxxx & Co. in its capacity as agent under this
Section 3 and other matters set forth in Annex IV, which is incorporated by
reference into this Agreement.
4. Upon
the execution of the Pricing Agreement and authorization by you of the release
of the Shares, the several Underwriters propose to offer the Shares for sale as
soon as you deem advisable upon the terms and conditions set forth in the
Prospectus.
5. [Reserved]
6. (a)
The Shares to be purchased by each Underwriter hereunder and under the Pricing
Agreement, 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’ notice to the Selling Shareholders prior to the Time of
Delivery (as defined below) (the “Notification Time”), shall be delivered by or
on behalf of the Selling Shareholders 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 Mellon Investor Services LLC (operating with the service name BNY
Mellon Shareowner Services), in its capacity as paying agent for the Selling
Shareholders under a paying agency agreement with the Company, to Xxxxxxx, Xxxxx
& Co. at least forty-eight hours in advance. Delivery of the
Shares by the Selling Shareholders will be made to an account or accounts
specified by Xxxxxxx, Sachs & Co., in such respective portions as Xxxxxxx,
Xxxxx & Co. may designate, upon written notice given to the Selling
Shareholders prior to the Notification Time. It is understood and
agreed by the parties hereto that no delivery or transfer of Shares to be
purchased and sold hereunder and under the Pricing Agreement at the Time of
Delivery shall be effective until and unless payment therefor has been made
pursuant hereto and each of DTC and the Selling Shareholders shall have
furnished or caused to be furnished to Xxxxxxx, Sachs & Co., on behalf of
the Underwriters at the Time of Delivery, certificates and other evidence
reasonably satisfactory to Xxxxxxx, Xxxxx & Co. of the execution in favor of
the Underwriters of the book-entry transfer of Shares to the custodian for
DTC.
The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on the date specified by
the Pricing Agreement or such other time and date as Xxxxxxx, Sachs & Co.
and the Selling Shareholders may agree upon in writing (the “Time of
Delivery”).
12
(b) The
documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 10 hereof, including the cross-receipt for the
Shares
and any additional documents requested by the Underwriters pursuant to Section
10(o) hereof, will be delivered at the offices of Xxxxxxxx & Xxxxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Closing Location”), and the
Shares will be delivered as specified in Section 6(a) above, all at the Time of
Delivery. A meeting will be held at the Closing Location at
2:00 p.m., New York City time, on the New York Business Day next preceding
the Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 6, “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.
7. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by Xxxxxxx, Sachs & Co., as
representative of the Underwriters, 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 the Pricing
Agreement; to make no further amendment or any supplement to the Registration
Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery
which shall be disapproved by Xxxxxxx, Xxxxx & Co., as representative of the
Underwriters, promptly after reasonable notice thereof; to advise Xxxxxxx, Sachs
& Co., as representative of the Underwriters, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish Xxxxxxx, Xxxxx & Co., as representative of the
Underwriters, copies thereof; to advise Xxxxxxx, Sachs & Co., as
representative of the Underwriters, to file promptly all other material required
to be filed by the Company with the Commission pursuant to Rule 433(d) under the
Act; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is required in
connection with the offering or sale of the Shares; to advise you, promptly
after it receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary Prospectus
or other prospectus in respect of the Shares, of any notice of objection of the
Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of
the qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other
prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order; and in the event of any such
issuance of a notice of objection, promptly to take such steps including,
without limitation, amending the Registration Statement or filing a new
registration statement, at its own expense, as may be necessary to permit offers
and sales of the Shares by the Underwriters (references herein to the
Registration Statement shall include any such amendment or new registration
statement);
13
(b) If
required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b)
under the Act not later than may be required by Rule 424(b) under the Act;
and to make no further amendment or supplement to such form of prospectus which
shall be disapproved by you promptly after reasonable notice
thereof;
(c) Promptly
from time to time to take such action as Xxxxxxx, Xxxxx & Co., as
representative of the Underwriters, may reasonably request to qualify the Shares
for offering and sale under the securities laws of such jurisdictions as
Xxxxxxx, Sachs & Co., as representative of the Underwriters, may request and
to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Shares; provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction or
subject itself to taxation for doing business in any jurisdiction;
(d) Prior
to 10:00 a.m., New York City time, on the New York Business Day next
succeeding the date of the Pricing Agreement and from time to time, to furnish
the Underwriters with written and electronic copies of the 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 events 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 or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or
the Exchange Act, to notify you and upon your request to file such document and
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;
14
(e) To
make generally available to the Company’s shareholders as soon as practicable,
but in any event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company,
Rule 158);
(f) During
the period beginning from the date of the Pricing Agreement and continuing to
and including the date 90 days after the date of the Prospectus (the “Initial
Lock-Up Period”), not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder and under the Pricing Agreement, any securities of
the Company or its subsidiaries that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Shares or any such
substantially similar securities; 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 15-day period following the last day of the
Initial Lock-Up Period, then in each case the Initial 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 you waive, in writing, such
extension; provided further, however,
that the foregoing restrictions are subject to the following
exceptions:
(i) the
issuance by the Company of securities pursuant to employee stock option plans or
other employee or director plans existing on, or upon the conversion or exchange
of convertible or exchangeable securities outstanding as of, the date of the
Pricing Agreement;
(ii) the
issuance by the Company of shares of its Stock pursuant to agreements existing
as of the date of the Pricing Agreement; and
15
(iii) the
offer, sale or other disposition by the Company of shares of its Stock in
connection with the merger or joint venture with, or acquisition of, another
company, or the acquisition of the assets or property of
another company, and the related entry into a merger or acquisition
agreement;
(g) To
furnish to its shareholders as soon as practicable after the end of each fiscal
year an annual report (in English) (including a balance sheet and statements of
income, shareholders’ or members’ equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants and
prepared in conformity with generally accepted accounting principles in the U.S.
(“U.S. GAAP”)) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the effective date of the Registration Statement), to make available to
its shareholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in each case as required by the rules and
regulations of the Act, provided that the Company may
satisfy the requirements of this subsection by filing such information and all
other information on Form 10-Q or Form 10-K as may be required by Rule 463 under
the Act;
(h) During
a period of two 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 the Company’s shareholders, and to deliver to you as soon as
practicable after they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any securities exchange
on which any class of securities of the Company is listed;
(i) To
pay the required Commission filing fees relating to the Shares within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein
and otherwise in accordance with Rules 456(b) and 457(r) under the
Act;
(j) [Reserved]
(k)
Not to (and to cause the Company’s subsidiaries not to) take, directly or
indirectly, any action which is designed to or which constitutes or which would
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company or facilitate the sale or resale or the
Shares;
(l) To
use its best efforts to list, subject to notice of issuance, the Shares on the
New York Stock Exchange;
(m) 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 the Pricing 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;
16
(n) 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; and
(o) If
by the third anniversary (the “Renewal Deadline”) of the initial effective date
of the Registration Statement, you notify the Company that any of the Shares
remain unsold by the Underwriters, the Company will file, if it has not already
done so and is eligible to do so, a new automatic shelf registration statement
relating to the Shares in a form reasonably satisfactory to you, or, if the
Company is no longer eligible to file an automatic shelf registration statement,
the Company will, if it has not already done so, file a new shelf registration
statement relating to the Shares, in a form reasonably satisfactory to you and
will use its best efforts to cause such registration statement to be declared
effective within 180 days after the Renewal Deadline. The Company
will take all other action necessary or appropriate to permit the public
offering and sale of the Shares to continue as contemplated in the expired
registration statement relating to the Shares. References herein to
the Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may
be.
8.
(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(a)
to the Pricing Agreement;
(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; and
17
(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 Disclosure Package or the 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 with respect to
information provided by a Selling Shareholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-3, this provision
shall only apply to the extent the Company has knowledge of such an event; provided further, however, that this provision
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.
9. The
Company covenants and agrees with the several Underwriters that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company’s counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, the
Basic Prospectus, 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
Pricing Agreement, the Blue Sky Memorandum, closing documents (including
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 7(c) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky surveys; (iv) all fees and expenses in connection
with listing the Shares on the New York Stock Exchange; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the Financial Industry
Regulatory Authority of the terms of the sale of the Shares; (vi) the cost of
preparing stock certificates; (vii) the cost and charges of any transfer agent
or registrar; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder and under the Pricing Agreement which
are not otherwise specifically provided for in this Section. Each Selling
Shareholder will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Shareholder’s obligations hereunder and under the
Pricing Agreement which are not otherwise specifically provided for in this
Section, including (x) any fees and expenses of counsel for such Selling
Shareholder, (y) such Selling Shareholder’s pro rata share of the fees and
expenses of the Attorneys-in-Fact (if not paid for by the Company), and (z) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
such Selling Shareholder to the Underwriters hereunder and under the Pricing
Agreement. In connection with clause (z) of the preceding sentence,
Xxxxxxx, Xxxxx & Co. agrees to pay New York State stock transfer tax, and
the Selling Shareholder agrees to reimburse Xxxxxxx, Sachs & Co. for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is
understood, however, that the Company shall bear, and the Selling Shareholders
shall not be required to pay or to reimburse the Company for, the cost of any
other matters not directly relating to the sale
and purchase of the Shares pursuant to this Agreement and the Pricing Agreement,
and that, except as provided in this Section, and Sections 12 and 15 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes (other than any imposed by Bermuda or any
political subdivision or taxing authority thereof or therein) on resale of any
of the Shares by them, and any advertising expenses connected with any offers
they may make.
18
10. The
obligations of the Underwriters hereunder and under the Pricing Agreement, as to
the Shares to be delivered at the Time of Delivery, shall be subject to the
condition that all representations and warranties and other statements of the
Company and of the Selling Shareholders herein and therein are, at and as of the
Time of Delivery, true and correct, the condition that the Company and the
Selling Shareholders shall have performed all of its and their obligations
hereunder and under the Pricing Agreement 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 7(a)
hereof; all material required to be filed by the Company pursuant to
Rule 433(d) under the Act shall have been filed with the Commission within
the applicable time period prescribed for such filings by Rule 433; no stop
order suspending the effectiveness of the Registration Statement, the Prospectus
or any Issuer Free Writing Prospectus or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened by
the Commission and no notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act shall have been received; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) Xxxxxxxx
& Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you
such written statement, opinion or opinions, dated the Time of Delivery, with
respect to the matters covered in the paragraph following paragraph (vii) of
subsection (d) below as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such
matters;
(c) [Reserved]
19
(d) Cravath,
Swaine & Xxxxx LLP, counsel for the Company and its subsidiaries, shall have
furnished to you their written opinion (in the form set forth in Annex II(a) to
the Pricing Agreement), dated the Time of Delivery, to the effect
that:
(i) Under
the laws of the State of New York relating to personal jurisdiction, the Company
has, pursuant to Section 18 of this Agreement, validly and irrevocably submitted
to the personal jurisdiction of any state or federal court located in the
Borough of Manhattan, The City of New York, New York
(each, a “New York Court”) in any action arising out of or relating to this
Agreement or the Pricing Agreement or the transactions contemplated hereby and
thereby, has validly and irrevocably waived any objection to the venue of a
proceeding in any such court, and has validly and irrevocably appointed the
Authorized Agent (as defined herein) as its authorized agent for the purpose
described in Section 18 hereof; and service of process effected on such agent in
the manner set forth in Section 18 hereof will be effective to confer valid
personal jurisdiction over the Company;
(ii) To
such counsel’s knowledge and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate, have a Material Adverse
Effect;
(iii) The
compliance by the Company with all of the provisions of this Agreement and the
Pricing Agreement and the consummation of the transactions contemplated herein
and therein 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 filed as an exhibit to the Registration Statement nor will such
action result in any violation of any statute under the laws of the State of New
York or the federal securities laws of the United States of America or any
order, rule or regulation known to such counsel of any United States Federal or
New York Governmental Agency having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(iv) No
Governmental Authorization of the United States or the State of New York is
required for the sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement and the Pricing Agreement, except
the registration under the Act of the Shares, such consents, approvals,
authorizations, registrations or qualifications that have been obtained or as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters and such
consents, approvals,
authorizations, registrations or qualifications the failure of which to obtain
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
20
(v) The
statements set forth in the Prospectus under the caption “Material U.S. Federal
Income Tax and Bermuda Tax Considerations”, insofar as they purport to
constitute a summary of U.S. laws and the documents referred to therein, and
under the caption “Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred
to therein, are accurate and complete summaries of such provisions in all
material respects;
(vi)
[Reserved]; and
(vii)
Counsel does not know of any amendment to the Registration Statement required to
be filed or 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.
Although counsel has made certain
inquiries and investigations in connection with the preparation of the
Registration Statement, the Pricing Disclosure Package and the Prospectus, the
limitations inherent in the role of outside counsel are such that counsel cannot
and does not assume responsibility for the accuracy or completeness of the
statements made in the Registration Statement, the Pricing Disclosure Package
and the Prospectus, except insofar as such statements relate to counsel and
except as set forth in subsection (v) of this Section 10(d). Subject
to the foregoing, counsel confirms to you, on the basis of information gained in
the course of the performance of the services rendered in connection with the
offering of Shares contemplated hereby and by the Pricing Agreement, that the
Registration Statement, at the time the Registration Statement initially became
effective, and the Prospectus, as of the date of the Pricing Agreement, appeared
or appears on its face to be appropriately responsive in all material respects
to the requirements of the Act and the applicable rules and regulations
thereunder, except that counsel does not express any view as to any financial
statements and schedules or as to any other information of an accounting or
financial nature included therein (including, without limitation, the report of
management’s attestation of the effectiveness of internal controls over
financial reporting or the auditor’s attestation report
thereon). Furthermore, subject to the foregoing, counsel hereby
advises you that its work in connection with this matter did not disclose any
information that gave it reason to believe that: (i) the Registration
Statement, at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the
Prospectus, as of its date or at the Time of Delivery, included or includes an
untrue statement of a material fact or omitted 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 or (iii) the
Pricing Disclosure Package, considered together as of the Applicable Time to be
specified by the Pricing Agreement, included 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, except that, in each case, counsel
does not express any view as to any financial statements and schedules or as to
any other information of an accounting or financial nature included therein
(including, without limitation, the report of management’s attestation of the
effectiveness of internal controls over financial reporting or the auditor’s
attestation report thereon).
21
In rendering their opinion, 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 of jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company.
With respect to the matters to be
covered in paragraph (vii) and the paragraph following paragraph (vii)
above, such counsel may state that their opinion is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto and discussions with
representatives of the Company and its auditors (including discussions in which
the Underwriters and their counsel participated) in connection with such
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto but is without independent check or verification, except as
with respect to matters set forth in paragraph (v) above, except as
specified.
In rendering their opinion, such
counsel may state that they express no opinion other than as to the law of the
State of New York and the federal securities laws of the United
States;
(e) Xxxxxxx
Xxxx & Xxxxxxx, special Bermuda counsel for the Company, shall have
furnished to you their written opinion (in the form as set forth in Annex II(b)
to the Pricing Agreement), dated the Time of Delivery, to the effect
that:
(i)
The Company is duly incorporated and existing under the laws of Bermuda in good
standing (meaning solely that it has not failed to make any filing with any
Bermuda governmental authority, or to pay any Bermuda government fee or tax,
which would make it liable to be struck off the Register of Companies and
thereby cease to exist under the laws of Bermuda).
22
(ii)
The Company has the necessary corporate power and authority to execute, deliver
and perform its obligations under the Underwriting Agreement and the Pricing
Agreement and the necessary corporate power to conduct its business as described
in the Prospectus. The execution and delivery of the Underwriting
Agreement and the Pricing Agreement by the Company and the performance by the
Company of its obligations thereunder will not violate the
memorandum of association or bye-laws of the Company nor any applicable law,
regulation, order or decree in Bermuda.
(iii)
The Company has taken all corporate action required to authorize its execution,
delivery and performance of the Underwriting Agreement and the Pricing Agreement
.. The Underwriting Agreement and the Pricing Agreement has been duly
executed and delivered by or on behalf of the Company, and constitutes the valid
and binding obligations of the Company, enforceable against the Company in
accordance with the terms thereof.
(iv)
No order, consent, approval, license, authorization or validation of, filing
with or exemption by any government or public body or authority of Bermuda or
any sub-division thereof is required to authorize or is required in connection
with the execution, delivery, performance and enforcement of the Underwriting
Agreement and the Pricing Agreement including the ownership or lease of the
Company’s properties and conduct of its business as described in the Prospectus,
except such as have been duly obtained or filed in accordance with Bermuda
law.
(v)
It is not necessary or desirable to ensure the enforceability in Bermuda of the Underwriting Agreement or the
Pricing Agreement that it be registered in any register kept by, or filed with,
any governmental authority or regulatory body in Bermuda.
(vi) The Underwriting Agreement and the
Pricing Agreement will not be subject to ad valorem stamp duty in Bermuda.
(vii)
The choice of the Foreign Laws as the governing law of the Underwriting
Agreement and the Pricing Agreement is a valid choice of law and would be
recognized and given effect to in any action brought before a court of competent
jurisdiction in Bermuda, except for those laws (i) which such court considers to
be procedural in nature, (ii) which are revenue or penal laws or (iii) the
application of which would be inconsistent with public policy, as such term is
interpreted under the laws of Bermuda. The submission in the
Underwriting Agreement and the Pricing Agreement to the jurisdiction of the
Foreign Courts is valid and binding upon the Company.
23
(viii) The
courts of Bermuda would recognize as a valid judgment, a final and conclusive
judgment in personam obtained in the Foreign Courts against the Company based
upon the Underwriting Agreement or the Pricing Agreement under which a sum of
money is payable (other than a sum of money payable in respect of multiple
damages, taxes or other charges of a like nature or in respect of a fine or
other penalty) and would give a judgment based thereon, provided
that (a) such courts had proper jurisdiction over the parties subject to
such judgment, (b) such courts did not contravene the rules of natural justice
of Bermuda, (c) such judgment was not obtained by fraud, (d) the enforcement of
the judgment would not be contrary to the public policy of Bermuda, (e) no new
admissible evidence relevant to the action is submitted prior to the rendering
of the judgment by the courts of Bermuda and (f) there is due compliance with
the correct procedures under the laws of Bermuda.
(ix) Based solely upon a review of the common
share register of the Company dated
[ ], 2009, the issued
common share capital of the Company (including the Common Shares to be sold by
the Selling Shareholders) consists of [ ] Class A common shares, par
value US$0.01 and 1 Class B common share, par value US$0.01, each of which is
validly issued, fully paid and non-assessable (which term when used herein means
that no further sums are required to be paid by the holders thereof in
connection with the issue thereof). The shares in the issued share
capital of the Company are not subject to any statutory pre-emptive or similar
rights.
(x)
The statements contained in the Prospectus forming a part of the Registration
Statement under the captions “Description of Our Common Stock”, “Material
U.S. Federal Income Tax and
Bermuda Tax Considerations - Taxation of Lazard
and its Subsidiaries - Bermuda” and “Material U.S. Federal Income Tax and
Bermuda Tax Considerations - Taxation of Shareholders - Bermuda Taxation”, to
the extent that they constitute statements of Bermuda law, are accurate in all material
respects.
(xi) The Company is not entitled to any
immunity under the laws of Bermuda, whether characterized as sovereign
immunity or otherwise, from any legal proceedings to enforce the Underwriting
Agreement or the Pricing Agreement in respect of itself or its
property.
(xii)
The Company has been designated as non-resident of Bermuda for the purposes of the Exchange
Control Act of 1972 and, as such, is free to acquire, hold and sell foreign
currency (including the payment of dividends) and securities without
restriction.
24
(xiii)
There is no income or other tax of Bermuda imposed by withholding or otherwise on
any payment to be made by the Company pursuant to the Underwriting Agreement or
the Pricing Agreement.
(xiv) The
Company has received an assurance from the Ministry of Finance in Bermuda that
in the event of there being enacted in Bermuda any legislation imposing tax
computed on profits or income or computed on any capital asset, gain or
appreciation, or any tax in the nature of estate duty or inheritance tax, then
the imposition of any such tax shall not be applicable to the Company or any of its operations
or its shares, debentures or other obligations (subject to the proviso expressed
in such assurance as described in the Prospectus).
(f) Xxxxx
X. Xxxxxxx, Esq., General Counsel of the Company, shall have furnished to you
his written opinion (in the form set forth in Annex II(c) to the Pricing
Agreement), dated the Time of Delivery, to the effect that:
(i) Each
of the Company and each significant subsidiary (as such term is defined in Rule
1-02(w) of Regulation S-X as promulgated by the SEC) of 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 jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of failure to be so
qualified in any such jurisdiction, except where the failure to be so qualified
or in good standing as a foreign corporation would not reasonably be expected to
result in a Material Adverse Effect (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
(ii) Each
significant subsidiary (as such term is defined in Rule 1-02(w) of Regulation
S-X as promulgated by the Commission) of the Company has been duly incorporated
or organized and is validly existing as a corporate entity in good standing
under the laws of its jurisdiction of incorporation or formation, as applicable,
except where the failure to be so qualified or in good standing would not
reasonably be expected to result in a Material Adverse Effect; and all of the
issued shares of capital stock or other equity interests of each such subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors’ qualifying shares and shares or
interests in the Paris subsidiary that are owned by Lazard Group French managing
directors and except as otherwise set forth or described in the Prospectus) are
owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims, except
for such liens, encumbrances, equities or claims as described in the Prospectus
or that would not otherwise have a Material Adverse Effect (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel
shall state that they believe both you and they are justified in relying upon
such opinions and certificates);
25
(iii)
To the best of such counsel’s knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of such counsel’s
knowledge and other than as set forth in the Prospectus, no such proceedings are
threatened by any Governmental Agency or threatened by
others;
(iv) The
compliance by the Company with all of the provisions of this Agreement and the
Pricing Agreement and the consummation of the transactions contemplated herein
and therein will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, except
for such breaches, violations or defaults that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect;
(v) To
the best of such counsel’s knowledge, the Company and each of its subsidiaries
have all licenses and concessions of and from all Governmental Agencies that are
necessary to own or lease their properties and conduct their businesses as
described in the Prospectus, and the Company and each of its subsidiaries have
all franchises, permits, authorizations, approvals and orders and other licenses
and concessions of and from all Governmental Agencies that are necessary to own
or lease their other properties and conduct their businesses as described in the
Prospectus, except for such licenses, concessions, franchises, permits,
authorizations, approvals and orders the failure to obtain which will not have,
individually or in the aggregate, a Material Adverse Effect;
26
(vi) To
best of such counsel’s knowledge, none of the Company’s subsidiaries is in
violation of its constitutive documents and neither the Company nor any of its
subsidiaries is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound except for such
violations or defaults which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
(vii) The
statements set forth or incorporated in the Prospectus under the caption
“Certain Relationships and Related Transactions”, insofar as they purport to
describe the provisions of the documents referred to therein, are accurate and
complete summaries of such provisions in all material respects.
Although such counsel has not verified,
is not passing upon, and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Pricing Disclosure Package or the Prospectus, except for those
referred to in the opinion in subsection (vii) of this Section 10(f), no facts
have come to such counsel’s attention that lead him to believe and such counsel
has no other reason to believe, (i) that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and notes or other financial or statistical data included therein, as
to which such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) that
the Pricing Disclosure Package, as of the Applicable Time, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(iii) that, as of its date, and as of the Time of Delivery, the Prospectus or
any further amendment or supplement thereto made by the Company prior to the
Time of Delivery (other than the financial statements and related schedules and
notes or other financial or statistical data included therein, as to which such
counsel need express no opinion) contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering his opinion, such counsel
may state that he expresses no opinion other than as to the law of the State of
New York and the federal securities laws of the United States;
27
(g) Xxxxxx
Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, Investment Company Act counsel for the
Company and its subsidiaries, shall have furnished to you their written opinion
(in the form set forth in Annex II(d) to the Pricing Agreement), dated the Time
of Delivery, to the effect that none of the Company, Lazard Group, Lltd Corp II,
a Delaware corporation (“Ltd Sub A”), or Lltd 2 S.ar.l., a Luxembourg Company
(“Ltd Sub B”), is or, after giving effect to the offering and sale of the
Shares, will be an “investment company”, as such term is defined in the
Investment Company Act;
(h) (i)
The respective counsel (which counsel may be internal counsel of the Company)
for each of the Selling Shareholders other than natural persons each shall have
furnished to you their written opinion with respect to each of the Selling
Shareholders for whom they are acting as counsel in the form attached as
Annex II(e) to the Pricing Agreement, dated the Time of Delivery;
and
(ii) The
respective counsel (which counsel may be internal counsel of the Company) for
each of the Selling Shareholders that are natural persons each shall have
furnished to you their written opinion with respect to each of the Selling
Shareholders for whom they are acting as counsel in the form attached as
Annex II(f) to the Pricing Agreement, dated the Time of
Delivery;
(i) On
the date of the Prospectus at a time prior to the execution of the Pricing
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of the Pricing Agreement and also at the Time of Delivery, Deloitte &
Touche LLP shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex I hereto (the executed copy of the letter
delivered prior to the execution of the Pricing Agreement is attached as Annex
I(a) hereto and a draft of the form of letter to be delivered on the effective
date of any post-effective amendment to the Registration Statement and as of the
Time of Delivery is attached as Annex I(b) hereto);
(j) (i)
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 Registration Statement and the Pricing
Prospectus there shall not have been (a) any change in the capital stock of the
Company or any of its subsidiaries, (b) any change in the amount of long-term
debt of the Company or any of its subsidiaries, or (c) any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders’ or members’ equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus, including the pro forma financial and
capitalization information included therein, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the Representative
so material and adverse as to make 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;
28
(k)
On or after the Applicable Time (i) no downgrading shall have occurred in
the rating accorded the Company’s debt securities or preferred stock (if any) by
any “nationally
recognized statistical rating organization”, as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s
debt securities or preferred stock (if any);
(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 or the London 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 in New
York or London declared by the relevant authorities, or a material disruption in
commercial banking or securities settlement or clearance services in the United
States or the United Kingdom; (iv) a change or development involving a
prospective change in Bermuda taxation affecting the Company, the Shares or the
transfer thereof; (v) the outbreak or escalation of hostilities involving the
United States, the United Kingdom or Bermuda or the declaration by the United
States, the United Kingdom or Bermuda of a national emergency or war; or (vi)
the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions or currency exchange rates or controls in the
United States, the United Kingdom, Bermuda or elsewhere, if the effect of any
such event specified in clause (v) or (vi) in the judgment of the Representative
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;
(m) [Reserved]
(n) The
Company shall have complied with the provisions of Section 7(d) hereof with
respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of the Pricing Agreement;
(o) The
Company and the Selling Shareholders shall have furnished or caused to be
furnished to you at the Time of Delivery certificates of officers of the Company
and of the Selling Shareholders, respectively, reasonably satisfactory to you as
to the accuracy of the representations and warranties of the Company and the
Selling Shareholders, respectively, herein and in the Pricing Agreement at and
as of the Time of Delivery, as to the performance by the Company and the Selling
Shareholders of all of their respective obligations hereunder and under the
Pricing Agreement to be performed at or prior to the Time of Delivery, and as to
such other matters as you may reasonably request, and the Company shall have
furnished or caused to be furnished certificates as to the matters set forth in
subsections (a), (j) and (k) of this Section, and as to such other matters as
you may reasonably request; and
29
(p) The
Company shall deliver to Xxxxxxx, Xxxxx & Co., on behalf of the several
Underwriters, a lock-up agreement on the date of the Pricing Agreement,
substantially as set forth in Annex III hereto,
signed by each of the persons or entities listed on Schedule II
hereto.
11. [Reserved]
12. (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 the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment
or supplement thereto, any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
Act, 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, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Disclosure Package 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. expressly for use therein.
30
(b) Each
Selling Shareholder will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Disclosure Package 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 Selling Shareholder expressly for use therein; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that such Selling
Shareholder 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, the Basic Prospectus, any Preliminary Prospectus,
the Pricing Disclosure Package or the Prospectus or any such amendment or
supplement or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein. The liability of
each Selling Shareholder under the indemnity contained in this paragraph shall
be limited to an amount equal to the amount of gross proceeds attributable to
the sale of such Selling Shareholder’s Shares.
(c) Each
Underwriter will indemnify and hold harmless the Company and each Selling
Shareholder against any losses, claims, damages or liabilities to which the
Company or such Selling Shareholder 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, the
Basic Prospectus, any Preliminary Prospectus, the Pricing Disclosure Package 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 be stated 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, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Disclosure Package or the Prospectus or any amendment thereto, or supplement 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 such Selling Shareholder for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
31
(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 an indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (which
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder and under the Pricing
Agreement (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.
32
(e) If
the indemnification provided for in this Section 12 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 Shareholders, 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 Shareholders, 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 Shareholders, on the one hand, and the Underwriters, on the other, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement and the Pricing Agreement
(before deducting expenses) received by the Company bear to the total financial
benefit received by the Underwriters from the offering of the Shares purchased
under this Agreement and the Pricing Agreement. 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 Shareholders, on the one hand, or the
Underwriters, on the other, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company, each of the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(e) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection
(e), (x) no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission and (y)
no Selling Shareholder shall be required to contribute any amount in excess of
the amount of gross proceeds attributable to the sale of such Selling
Shareholder’s Shares. 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 the Company and the Selling Shareholders under this Section 12
shall be in addition to any liability which the Company and the respective
Selling Shareholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act and each broker-dealer Affiliate of any Underwriter; and the
obligations of the Underwriters under this Section 12 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company or any Selling
Shareholder within the meaning of the Act.
33
13. (a) If
any Underwriter shall default in its obligation to purchase the Shares which it
has agreed to purchase hereunder and under the Pricing Agreement, you may in
your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein and therein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Selling Shareholders shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such
terms. In the event that, within the respective
prescribed periods, you notify the Selling Shareholders that you have so
arranged for the purchase of such Shares, or the Selling Shareholders notify you
that they have so arranged for the purchase of such Shares, you or the Selling
Shareholders shall have the right to postpone the Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term “Underwriter” as used in this
Agreement and the Pricing Agreement shall include any person substituted under
this Section with like effect as if such person had originally been a party to
this Agreement or the Pricing Agreement with respect to such
Shares.
(b) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by you and the Selling Shareholders 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
of the Shares to be purchased at the Time of Delivery, then the Selling
Shareholders shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder and under the Pricing Agreement 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 and thereunder) of
the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein and therein shall relieve a
defaulting Underwriter from liability for its default.
(c) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by you and the Selling Shareholders as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all of the
Shares to be purchased, or if the Selling Shareholders 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 and the Pricing Agreement shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Selling Shareholders,
except for the expenses to be borne by the Company and the Selling Shareholders
and the Underwriters as provided in Section 9 hereof and the indemnity and
contribution agreements in Section 12 hereof; but nothing herein and therein
shall relieve a defaulting Underwriter from liability for its
default.
34
14. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement and the Pricing Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement and the
Pricing 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 Shareholders, or any
officer or director or controlling person of the Company, or any controlling
person of any Selling Shareholder, and shall survive delivery of and payment for
the Shares.
15. If
this Agreement and the Pricing Agreement shall be terminated pursuant to Section
13 hereof, neither the Company nor the Selling Shareholders shall then be under
any liability to any Underwriter except as provided in Sections 9 and 12 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of the
Selling Shareholders as provided herein and therein, each of the Selling
Shareholders pro rata (based on the number of Shares to be sold by such Selling
Shareholder hereunder and thereunder) will reimburse the Underwriters through
you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Selling Shareholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 9 and 12 hereof.
16. In
all dealings hereunder and under the Pricing Agreement, you shall act on behalf
of each of the Underwriters, and the parties hereto and thereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you jointly or by Xxxxxxx, Xxxxx
& Co. on behalf of you as the representative; and in all dealings with any
Selling Shareholder hereunder and thereunder, you and the Company shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of such Selling Shareholder made or given by any or all of the
Attorneys-in-Fact for such Selling Shareholder.
All statements, requests, notices and
agreements hereunder and under the Pricing Agreement
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to you as the representative in care of
Xxxxxxx, Sachs & Co., Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Registration Department; if to any Selling Shareholder shall
be delivered or sent by mail, telex or facsimile transmission to counsel for
such Selling Shareholder at its address set forth in Schedule II hereto;
and if to the Company or LAZ-MD Holdings LLC 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 any person or entity set
forth on Schedule II shall be delivered or sent by mail, telex or facsimile
transmission to the address or contact specified on such Schedule II; provided, however, that any notice to an
Underwriter pursuant to Section 12(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 Company or the Selling Shareholders by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
35
17. This
Agreement and the Pricing Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and the Selling Shareholders and,
to the extent provided herein and therein, the officers and directors of the
Company and each person who controls the Company, any Selling Shareholder 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 or the Pricing Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
18. Each
of the parties hereto irrevocably (i) agrees that any legal suit, action or
proceeding arising out of or based upon this Agreement or the Pricing Agreement
or the transactions contemplated hereby and thereby may be instituted in any New
York court, (ii) waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding and (iii) submits to the exclusive jurisdiction of such courts in any
such suit, action or proceeding. The Company and each of the Selling
Shareholders irrevocably waives any immunity to jurisdiction to which it may
otherwise be entitled or become entitled (including sovereign immunity, immunity
to pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against it arising out of or based on this Agreement
or the Pricing Agreement or the transactions contemplated hereby or thereby
which is instituted in any New York Court or in any competent court in
Bermuda. The Company and each of the Selling Shareholders has
appointed Lazard Group LLC, New York, New York, as its authorized agent (the
“Authorized Agent”) upon whom process may be served in any such action arising
out of or based on this Agreement or the Pricing Agreement or the transactions
contemplated hereby or thereby which may be instituted in any New York Court by
any Underwriter or by any person who controls any Underwriter, expressly
consents to the jurisdiction of any such court in respect of any such action,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointment shall be
irrevocable. The Company and each of the Selling Shareholders
represents and warrants that the Authorized Agent has agreed to act as such
agent for service at process and agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written
notice of such service to the Company or a Selling Shareholder shall be deemed,
in every respect, effective service of process upon the Company or the relevant
Selling Shareholder as the case may be.
36
19. In
respect of any judgment or order given or made for any amount due hereunder and
under the Pricing Agreement that is expressed and paid in a currency (the
“judgment currency”) other than United States dollars, the Company or a Selling
Shareholder, as the case may be, will indemnify each Underwriter against any
loss incurred by such Underwriter as a result of any variation as between
(i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which an Underwriter is able to purchase
United States dollars with the amount of the judgment currency actually
received
by such Underwriter. The foregoing indemnity shall constitute a
separate and independent obligation of the Company or such Selling Shareholder
and shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term “rate of exchange” shall include any
premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
20. Time
shall be of the essence of this Agreement and the Pricing Agreement. As used
herein and therein, the term “business day” shall mean any day when the
Commission’s office in Washington, D.C. is open for business.
21. The
Company and each of the Selling Shareholders acknowledges and agrees that
(i) the purchase and sale of the Shares pursuant to this Agreement and the
Pricing Agreement is an arm’s-length commercial transaction between the Selling
Shareholders, on the one hand, and the several Underwriters, on the other,
(ii) in connection therewith and with the process leading to such
transaction, and except as specifically set forth in Section 3 above, each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company and each of the Selling Shareholders, (iii) no Underwriter has
assumed an advisory or fiduciary responsibility in favor of the Company or any
of the Selling Shareholders with respect to the offering contemplated hereby and
by the Pricing Agreement or the process leading thereto (irrespective of whether
such Underwriter has advised or is currently advising the Company or any of the
Selling Shareholders on other matters) or any other obligation to the Company or
any of the Selling Shareholders except the obligations expressly set forth in
this Agreement and the Pricing Agreement and (iv) the Company and each of
the Selling Shareholders has consulted its own legal and financial advisors to
the extent it deemed appropriate. The Company and each of the Selling
Shareholders agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or any of the Selling Shareholders, in
connection with such transaction or the process leading thereto.
22. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company or the Selling Shareholders, on the one hand, and the
Underwriters, or any of them, on the other, with respect to the subject matter
hereof.
23. This
Agreement and the Pricing Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
37
24. The
Company, each of the Selling Shareholders 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 and the Pricing Agreement or the transactions contemplated hereby
and thereby.
25. This
Agreement and the Pricing Agreement may be executed by any one or more of the
parties hereto and thereto 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.
26. The
Company and each of the Selling Shareholders is authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriters imposing any limitation of any kind.
38
If the
foregoing is in accordance with your understanding, please sign and return to us
five counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Shareholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company and the Selling Shareholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
39
Any person executing and delivering
this Agreement as Attorney-in-Fact for a Selling Shareholder represents by so
doing that he has been duly appointed as Attorney-in-Fact by such Selling
Shareholder pursuant to a validly existing and binding Power of Attorney which
authorizes such Attorney-in-Fact to take such action.
Very truly
yours,
Lazard Ltd | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxxx | |
Name: Xxxxxxx X. Xxxxxxxxxx | |||
Title: Chief Financial Officer | |||
Each
Selling Shareholder named in Schedule II to this
Agreement
|
|||
|
By:
|
/s/ Xxxxx X. Xxxxxxx | |
Name: Xxxxx X. Xxxxxxx | |||
Title: Attorney-in-Fact | |||
As
Attorney-in-Fact acting on behalf of each of the Selling Shareholders
named in Schedule II to this Agreement.
|
Lazard Group LLC | |||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxxxx | |
Name: Xxxxxxx X. Xxxxxxxxxx | |||
Title: Chief Financial Officer | |||
Accepted
as of the date hereof:
Xxxxxxx,
Xxxxx & Co.
|
|
By:
|
/s/ Xxxxxxx, Sachs & Co. |
(Xxxxxxx,
Xxxxx & Co.)
|
|