THE WARNACO GROUP, INC.
(a Delaware corporation)
Offering of
2,208,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: __________, 1995
THE WARNACO GROUP, INC.
(a Delaware corporation)
Offering of
2,208,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
____________, 1995
Xxxxxxx Xxxxx International Limited
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Bear, Xxxxxxx International Limited
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxxxxxxx International Ltd.
UBS Limited
As Representatives of the several Managers
c/x Xxxxxxx Xxxxx International Limited
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
The Warnaco Group, Inc., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxxx, Chairman, President and Chief Executive Officer
of the Company (the "Selling Stockholder") confirm their respective agreements
with Xxxxxxx Xxxxx International Limited, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, Bear, Xxxxxxx International Limited, Xxxxxx Xxxxxxx &
Co. International Limited, Xxxxxxxxxxx International Ltd., UBS Limited, and each
of the other Underwriters named in Schedule A hereto (collectively, the
"Managers," which term shall also include any underwriter substituted as
hereinafter provided in Section 11), for whom Xxxxxxx Xxxxx International
Limited, Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Bear, Xxxxxxx
International Limited, Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxxxxxx
International Ltd. and UBS Limited are acting as representatives (in such
capacity, the "Lead Managers"),
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with respect to (i) the sale by the Company and the purchase by the several
Managers, acting severally and not jointly, of an aggregate of 1,760,000 shares
of Class A Common Stock, par value $.01 per share, of the Company (the "Common
Stock"), (ii) the sale by the Selling Stockholder and the purchase by the
several Managers, acting severally and not jointly, of an aggregate of 160,000
shares of Common Stock and (iii) the grant by the Company to the Managers,
acting severally and not jointly, of the option described in Section 2(e) hereof
to purchase all or any part of the 288,000 additional shares of Common Stock to
cover over-allotments. The 1,920,000 shares of Common Stock (the "Initial
International Shares") and all or any part of the 288,000 shares of Common Stock
subject to the option described in Section 2(e) hereof (the "International
Option Shares") to be purchased by the Managers are collectively hereinafter
called the "International Shares." The 1,440,000 shares of Common Stock subject
to the option described in Section 2(e) hereof are hereinafter collectively
called the "Option Shares."
It is understood that the Company and the Selling Stockholder are entering
into an agreement, dated the date hereof (the "U.S. Purchase Agreement"),
providing for the issuance and sale by the Company and the sale by the Selling
Stockholder of 7,040,000 shares and 640,000 shares of Common Stock, respectively
(collectively, the "Initial U.S. Shares"), through arrangements with certain
underwriters in the United States and Canada (the "U.S. Underwriters" and,
together with the Managers, the "Underwriters"), for whom Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxxxxxx & Co., Inc. are acting as representatives (the
"U.S. Representatives") and the grant by the Company and the Selling Stockholder
to the U.S. Underwriters, acting severally and not jointly, of an option
described in Section 2(e) of the U.S. Purchase Agreement to purchase all or any
part of the U.S. Underwriters' pro rata portion of 1,032,000 and 120,000
additional shares of Common Stock, respectively, to cover over-allotments. It is
understood that the Company is not obligated to sell, and the Managers are not
obligated to purchase, any Initial International Shares unless all of the
Initial U.S. Shares are contemporaneously purchased by the U.S. Underwriters.
The International Shares and the U.S. Shares are hereinafter collectively
referred to as the "Offered Shares."
The Company and the Selling Stockholder understand that the
Managers will simultaneously enter into an agreement with the U.S. Underwriters
dated the date hereof (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Managers and the U.S.
Underwriters, under the direction of Xxxxxxx Xxxxx.
You have advised us that you and the other Managers, acting
severally and not jointly, desire to purchase the Initial International Shares
and, if the Managers so elect, the International Option Shares, and that you
have been authorized by the other
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Managers to execute this Agreement and the International Price Determination
Agreement referred to below on their behalf.
The initial public offering price per share for the
International Shares and the purchase price per share for the International
Shares to be paid by the several Managers shall be agreed upon by the Company,
the Selling Stockholder and the Lead Managers, acting on behalf of the several
Managers, and such agreement shall be set forth in a separate written instrument
substantially in the form of Exhibit A hereto (the "International Price
Determination Agreement"). The International Price Determination Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company, the Selling Stockholder and the Lead Managers and shall
specify such applicable information as included in Exhibit A hereto. The
offering of the International Shares will be governed by this Agreement, as
supplemented by the International Price Determination Agreement. From and after
the date of the execution and delivery of the International Price Determination
Agreement, this Agreement shall be deemed to incorporate, and all references
herein to "this Agreement" or "herein" shall be deemed to include, the
International Price Determination Agreement.
The initial public offering price per share and the purchase
price per share for the U.S. Shares to be paid by the U.S. Underwriters pursuant
to the U.S. Purchase Agreement shall be set forth in a separate agreement (the
"U.S. Price Determination Agreement"), the form of which is attached to the U.S.
Purchase Agreement. The purchase price per share for the U.S. Shares to be paid
by the several U.S. Underwriters shall be identical to the purchase price per
share for the International Shares to be paid by the several Managers hereunder.
This Agreement (including the related International Price Determination
Agreement) and the U.S. Purchase Agreement (including the related U.S. Price
Determination Agreement) are collectively referred to herein as the "Purchase
Agreements."
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 33-61701) covering the registration of the Offered Shares under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or preliminary prospectuses, and either (A) has prepared
and proposes to file, prior to the effective date of such registration
statement, an amendment to such registration statement, including final
prospectuses, or (B) if the Company has elected to rely upon Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), will prepare and file (i) prospectuses, in accordance
with the provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations, or (ii) a term sheet, in accordance with the provisions of Rule 434
("Rule 434") of the 1933 Act Regulations and Rule 424(b), as applicable,
promptly after execution and delivery of
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the International Price Determination Agreement.* The information, if any,
included in such prospectuses or term sheet, as the case may be, that was
omitted from any prospectus included in such registration statement at the time
it becomes effective but that is deemed, pursuant to Rule 430A(b) or Rule 434,
as the case may be, to be part of such registration statement at the time it
becomes effective is referred to herein as the "Rule 430A Information." Each
form of International Prospectus and form of U.S. Prospectus used before the
time such registration statement becomes effective, and any form of
International Prospectus and form of U.S Prospectus that omits the Rule 430A
Information that is used after such effectiveness and prior to the execution and
delivery of the International Price Determination Agreement or the U.S. Price
Determination Agreement, is herein called a "preliminary prospectus." If the
Company elects to rely on Rule 434, all references to the International
Prospectus shall be deemed to include, without limitation, the Form of
International Prospectus and the term sheet, taken together, provided to the
Managers by the Company in reliance on Rule 434 and all references to the U.S.
Prospectus shall be deemed to include, without limitation, the Form of U.S.
Prospectus and the term sheet, taken together, provided to the U.S. Underwriters
by the Company in reliance on Rule 434. If the Company files a registration
statement to register a portion of the Common Stock and relies on Rule 462(b)
for such registration statement to become effective upon filing with the
Commission (the "Rule 462 Registration Statement"), then any reference to
"Registration Statement" herein shall be deemed to be to both the registration
statement referred to above (No. 33-61701) and the Rule 462 Registration
Statement, as each such registration statement may be amended pursuant to the
1933 Act. Any reference to any preliminary prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act as of the date of such preliminary prospectus.
Such registration statement, including the exhibits thereto and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, as amended at the time it becomes effective and including, if applicable,
the Rule 430A Information, is herein called the "Registration Statement," and
the form of International Prospectus, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act and form of
U.S. Prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act included in the Registration
Statement at the time it becomes effective are herein called
--------
* Two forms of prospectus are to be used in connection with the offering
and sale of the Offered Shares: one relating to the International Shares
(the "Form of International Prospectus") and one relating to the U.S.
Shares (the "Form of U.S. Prospectus"). The Form of U.S. Prospectus is
identical to the Form of International Prospectus, except for the front
cover page, an "Underwriting," a "Legal Matters," an "Experts," an
"Available Information" and a "Documents Incorporated by Reference"
section and the back cover page.
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the "International Prospectus" and the "U.S. Prospectus," respectively, and,
collectively, the "Prospectuses" and, individually, a "Prospectus," except that,
if the final International Prospectus or U.S. Prospectus, as the case may be,
first furnished to the Managers or the U.S. Underwriters after the execution of
the International Price Determination Agreement or the U.S. Price Determination
Agreement for use in connection with the offering of the Offered Shares differs
from the prospectuses included in the Registration Statement at the time it
becomes effective (whether or not such prospectuses are required to be filed
pursuant to Rule 424(b)), the terms "International Prospectus," "U.S.
Prospectus," "Prospectuses" and "Prospectus" shall refer to the final
International Prospectus or U.S. Prospectus, as the case may be, first furnished
to the Managers or the U.S. Underwriters, as the case may be, for such use.
The Company and the Selling Stockholder understand that the
Mangers propose to make a public offering of the International Shares as soon as
you deem advisable after the Registration Statement becomes effective and the
International Price Determination Agreement has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with each of the Managers that:
(i) The Company meets the requirements for use of
Form S-3 under the 1933 Act, and when the Registration
Statement shall become effective, and if the Company has
elected to rely upon Rule 430A, on the date of the
International Price Determination Agreement or the U.S. Price
Determination Agreement, and on the effective or issue date of
each amendment or supplement to the Registration Statement or
the Prospectuses, and at the Closing Time referred to below,
and if any International Option Shares are purchased, up to
and including the Date of Delivery referred to below, (A) the
Registration Statement and any amendments and supplements
thereto will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; (B)
neither the Registration Statement nor any amendment or
supplement thereto will contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and (C) neither of the Prospectuses nor any
amendment or supplement to either of them include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, this representation
and warranty does not apply to statements or omissions from
the Registration Statement or the Prospectuses or any
amendments or supplements thereto made in reliance upon and in
conformity with
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information furnished or confirmed in writing to the Company
by or on behalf of any Underwriter through you or the U.S.
Representatives expressly for use in the Registration
Statement or the Prospectuses or any amendments or supplements
thereto.
(ii) The documents incorporated by reference in the
Prospectuses pursuant to Item 12 of Form S-3 under the 1933
Act, at the time they were filed with the Commission,
conformed in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "1934
Act"), and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), and, when read
together with the information in the Prospectuses, at the time
the Registration Statement shall become effective, and if the
Company has elected to rely upon Rule 430A, on the date of the
International Price Determination Agreement or the U.S. Price
Determination Agreement, and on the effective or issue date of
each amendment or supplement to the Registration Statement or
the Prospectuses, and at the Closing Time referred to below,
and, if any Option Shares are purchased, on the Date of
Delivery referred to below, will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading.
(iii) Xxxxx & Young LLP who are reporting upon the
audited consolidated financial statements and schedules
included or incorporated by reference in the Registration
Statement, are independent public accountants as required by
the 1933 Act, the 1934 Act, the 1933 Act Regulations and the
1934 Act Regulations.
(iv) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations
under this Agreement, the International Price Determination
Agreement, the U.S. Purchase Agreement and the U.S. Price
Determination Agreement, and this Agreement and the U.S.
Purchase Agreement have been, and the International Price
Determination Agreement and the U.S. Price Determination
Agreement on the date thereof will be, duly authorized,
executed and delivered by the Company.
(v) The consolidated financial statements included or
incorporated by reference in the Registration Statement and
the Prospectuses, together with the related schedules and
notes, present fairly the consolidated financial position of
the Company and its Subsidiaries (as
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hereinafter defined) as of the dates indicated and the
consolidated statements of operations, shareholders' equity
and cash flows of the Company and its Subsidiaries for the
periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout
the periods involved. The financial statement schedules, if
any, included or incorporated by reference in the Registration
Statement present fairly in accordance with GAAP the
information required to be stated therein and have been
compiled on a basis consistent with that of the audited
consolidated financial statements included in the Registration
Statement. The selected financial data included in the
Prospectuses present fairly in accordance with GAAP the
information shown therein and have been compiled on a basis
consistent with that of the audited consolidated financial
statements included in the Registration Statement.
(vi) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware with corporate power and authority under
such laws to own, lease and operate its properties and to
conduct its business as described in the Prospectuses; and the
Company is duly qualified as a foreign corporation to transact
business and is in good standing under the laws of each other
jurisdiction in which the nature of its business or its
ownership or leasing of its properties requires qualification,
except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its Subsidiaries,
considered as one enterprise.
(vii) Each of the Company's significant subsidiaries
(as such term is defined in Regulation S-X promulgated by the
Commission, each such subsidiary is hereinafter referred to as
a "Significant Subsidiary," and all of the Company's
subsidiaries are collectively hereinafter referred to as the
"Subsidiaries") is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation,
with power and authority to own, lease and operate its
properties and conduct its business as described in the
Prospectuses, is duly qualified as a foreign corporation to
transact business and is in good standing under the laws of
each jurisdiction in which the nature of its business or its
ownership or leasing of its properties required qualification,
except where the failure to be so qualified or in good
standing would not have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs
and business prospects of the Company and the Subsidiaries
considered as one enterprise; and all the outstanding shares
of capital stock of the Subsidiaries of the Company have
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been duly authorized and validly issued, are fully-paid and
non-assessable, and are owned by the Company (other than
directors' qualifying shares), directly or indirectly, free
and clear of all liens, encumbrances, security interests and
claims (other than pursuant to the Collateral Documents (as
defined under the $800,000,000 Credit Agreement, dated October
14, 1993, among the Company, Warnaco Inc., the Bank of Nova
Scotia and Citibank U.S.A.)); none of the outstanding shares
of capital stock of the Subsidiaries was issued in violation
of the preemptive or similar rights of any stockholder of such
corporation arising by operation of law, under the charter or
by-laws of any Subsidiary or under any agreement to which the
Company or any Subsidiary is a party.
(viii) The Company had at the date indicated in the
Prospectuses a duly authorized, issued and outstanding
capitalization as set forth in the Prospectuses under the
caption "Capitalization," and the Offered Shares will conform
in all material respects to the descriptions thereof
incorporated by reference into the Prospectuses.
(ix) The Offered Shares to be sold by the Company
pursuant to this Agreement and the U.S. Purchase Agreement
have been duly authorized and, when issued and delivered by
the Company upon receipt of the payment therefor in accordance
with this Agreement and the U.S. Purchase Agreement, will be
validly issued fully paid and non-assessable; such Offered
Shares are not subject to the preemptive or other similar
rights of any stockholder of the Company arising by operation
of law, under the charter and by-laws of the Company or under
any agreement to which the Company or any of its Subsidiaries
is a party.
(x) All of the outstanding shares of capital stock of
the Company, including the Offered Shares to be sold by the
Selling Stockholder pursuant to this Agreement and the U.S.
Purchase Agreement, have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the
outstanding shares of Common Stock of the Company was issued
in violation of the preemptive or other similar rights or any
stockholder of the Company arising by operation of law, under
the charter or by-laws of the Company or under any agreement
to which the Company or any of its Subsidiaries is a party.
(xi) Except as disclosed in the Prospectuses, there
are no outstanding options, warrants or other rights calling
for issuance of, and no commitments, plans or arrangements to
issue, any shares of capital stock of
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the Company or any of its Subsidiaries or any security
convertible into or exchangeable for capital stock of the
Company or any of its Subsidiaries.
(xii) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectuses, except as otherwise stated therein or
contemplated thereby, there has not been (A) any material
adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Company and its Subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any Subsidiary,
other than in the ordinary course of business, that is
material to the Company and its Subsidiaries, considered as
one enterprise, or (C) other than its regular quarterly
dividend, any dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(xiii) Neither the Company nor any Subsidiary is in
violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets
is subject, except for such defaults that would not in the
aggregate have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise.
(xiv) The execution, delivery and performance of this
Agreement, the International Price Determination Agreement,
the U.S. Purchase Agreement and the U.S. Price Determination
Agreement, the issuance, sale and delivery of the Offered
Shares, the consummation by the Company of the transactions
contemplated thereby and in the Registration Statement and
compliance by the Company with the terms of the foregoing have
been duly authorized by all necessary corporate action on the
part of the Company and do not and will not result in any
violation of the charter or by-laws of the Company or any
Subsidiary, and do not, and at the Closing Time will not,
conflict with, or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien or
encumbrance upon any property or assets of the Company or any
Subsidiary under (A) any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary is bound
or to which any of their respective properties or assets are
subject or (B) any law, statute, rule, regulation,
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judgment, order, writ or decree applicable to the Company or
any of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or
any Subsidiary or any of their respective properties, assets
or operations.
(xv) No authorization, approval, consent or license
of any government, governmental instrumentality or court
(other than under the 1933 Act and the 1933 Act Regulations
and the securities or blue sky laws of the various states) is
necessary in connection with the due authorization, execution,
delivery and performance by the Company of this Agreement, the
International Price Determination Agreement, the U.S. Purchase
Agreement and the U.S. Price Determination Agreement, and the
issuance, sale and delivery of the Offered Shares.
(xvi) Except as disclosed in the Prospectuses, there
is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Subsidiary that is
required to be disclosed in the Registration Statement or
Prospectuses or that, if determined adversely to the Company
or any of its Subsidiaries, individually or in the aggregate
might have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise, or which might materially and
adversely affect the consummation of the transactions
contemplated in this Agreement, the U.S. Purchase Agreement
and in the Registration Statement.
(xvii) There are no contracts or documents of a
character to which the Company or any Subsidiary is a party or
by which any of them are bound required to be described in the
Registration Statement, the Prospectuses or the documents
incorporated by reference therein or to be filed as exhibits
thereto that are not described and filed as required.
(xviii) The Company and its Subsidiaries are in
compliance with, and each such entity has not received any
notice of any outstanding violation of, all laws, ordinances,
rules and regulations applicable to it and its operations
except, in either case, where any failure by the Company or
any Subsidiary to comply with any such law, regulation,
ordinance or rule would not have, individually or in the
aggregate, a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise.
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(xix) Neither the Company nor any of its affiliates
has taken or will take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or
result in stabilization or manipulation of the price of the
Common Stock; and neither the Company nor any of its
affiliates has distributed or will distribute any prospectus
(as such term is defined in the 1933 Act and the 1933 Act
Regulations) in connection with the offering and sale of the
Offered Shares other than any preliminary prospectus filed
with the Commission or the Prospectuses or other material
permitted by the 1933 Act or the 1933 Act Regulations.
(xx) The Company is not an investment company within
the meaning of the Investment Company Act of 1940, as amended.
(xxi) No labor dispute exists with the Company's
employees or with employees of its Subsidiaries or, to the
knowledge of the Company, is imminent that could reasonably be
expected to materially and adversely affect the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise.
(xxii) The Company and each of its Subsidiaries have
good and marketable title to all properties and assets owned
by them, free and clear of all liens, encumbrances or
restrictions, except such as (A) are described in the
Prospectuses or (B) do not materially impair or interfere with
the current use made of such properties or could reasonably be
expected to materially and adversely affect the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise or (C) are neither material in
amount nor materially significant or (D) are granted for
borrowed money, in each case in relation to the business of
the Company and its Subsidiaries, considered as one
enterprise; all of the leases and subleases material to the
businesses of the Company and its Subsidiaries, considered as
one enterprise, and under which the Company or any Subsidiary
holds properties described in the Prospectuses, are in full
force and effect and neither the Company nor any Subsidiary
has received any notice of any claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any
Subsidiary under any of the leases or subleases mentioned
above or affecting or questioning the rights of the Company or
any Subsidiary, to the continued possession of the leased or
subleased premises under any such lease or sublease, which
claims, in the aggregate might be expected to have a material
adverse effect on the condition (financial or otherwise),
earnings,
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business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise.
(xxiii) The Company and each of its Subsidiaries own
or possess all foreign and domestic governmental licenses,
permits, certificates, consents, orders, approvals and other
authorizations (collectively, "Governmental Licenses")
necessary to own or lease, as the case may be, and to operate
its properties and to carry on its business as presently
conducted, except where the failure to possess such
Governmental Licenses might be expected to have a material
adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the
Company and its Subsidiaries, considered as one enterprise,
and neither the Company nor any Subsidiary has received any
notice of proceedings relating to revocation or modification
of any such Governmental Licenses that, singly or in the
aggregate, might be expected to have a material adverse effect
on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise.
(xxiv) The Company, directly or through its
Subsidiaries, is the owner of record for the uses described in
the Prospectuses of the trademarks "WARNER'S", "HATHAWAY",
"XXXX", "XXXXXX XXXXX" (for or in connection with men's and
boys' underwear, sleepwear, loungewear, bodywear and related
products, and women's and girls' intimate apparel, sleepwear,
loungewear, bodywear and related products) incident to its
ownership of the trust certificates therefor in the Xxxxxx
Xxxxx Trademark Trust, "Xxxxxxx" and "Van Raalte" and
variations and formatives thereof (collectively, the
"Principal Trademarks"); and the Company has the right to use,
pursuant to trademark license agreements (collectively, the
"Licenses"), other names and marks currently employed by them
in connection with the business now operated by them
(including, without limitation, "VALENTINO INTIMO", "SCAASI",
"WHITE STAG", "CATALINA", "XXXXXX XXXXX" (for men's
accessories), "CHAPS BY XXXXX XXXXXX", and "FRUIT OF THE
LOOM"); and (i) neither the Company nor any of its
Subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of
the Principal Trademarks which, singularly or in the
aggregate, if the subject of an unfavorable final
determination, would result in any material adverse change in
the ability of the Company and its Subsidiaries, taken as a
whole to conduct their business as described in the
Prospectuses; (ii) the Company and each of its Subsidiaries
has fulfilled and performed all of its material obligations
with respect to the Licenses and the Licenses remain in full
force and effect; (iii) to the best of the Company's
knowledge, no event
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has occurred with respect to the Licenses which would result
in a material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects
of the Company and its Subsidiaries, considered as one
enterprise; and (iv) to the best of the Company's knowledge,
the Xxxxxx Xxxxx Trademark Trust is not in violation of its
organizational documents or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any agreement, indenture or instrument to which
it is a party or by which it is bound, which violation or
default could affect (a) ownership by the Trust of the
trademarks which are the subject of its organizational
documents or (b) the Company's and its Subsidiaries right to
use the "XXXXXX XXXXX" trademarks referred to in the
Prospectuses. The Company and its Subsidiaries own or have the
right to use pursuant to license, sublicense, agreement or
permission all Intellectual Property (as defined below)
necessary or desirable for the operation of the business as
previously conducted and proposed to be conducted in the
Prospectuses. (As used herein, "Intellectual Property" means
trademark and service marks, copyrights, know-how, patent and
tradesecrets rights, confidential and other proprietary
rights.)
(xxv) The Company and each of its Subsidiaries comply
in all material respects with all Environmental Laws (as
defined below) except to the extent that failure to comply
with such Environmental Laws would not have a material adverse
effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise. Neither the
Company nor any of its Subsidiaries (i) is the subject of any
pending or, to the knowledge of the Company, threatened
federal, state or local investigation evaluating whether any
remedial action by the Company or any Subsidiary is needed to
respond to a release of any Hazardous Materials (as defined
below) into the environment, resulting from the Company's or
any of its Subsidiaries' business operations or ownership or
possession of any of their properties or assets or (ii) is in
contravention of any Environmental Laws that, in the case of
(i) or (ii), might be expected to have a material adverse
effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise. Neither the
Company nor any Subsidiary has received any notice or claim,
nor are there pending or, to the knowledge of the Company,
threatened lawsuits against them, with respect to violations
of an Environmental Law or in connection with any release of
any Hazardous Material into the environment that, in the
aggregate, if the subject of any unfavorable
13
decision, ruling or finding, might have a material adverse
effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise. As used herein,
"Environmental Laws" means any foreign, federal, state or
local law or regulation applicable to the Company's or any of
its Subsidiaries' business operations or ownership or
possession of any of their properties or assets relating to
environmental matters, and "Hazardous Materials" means those
substances that are regulated by or form the basis of
liability under any Environmental Laws.
(xxvi) All United States federal income tax returns
of the Company and its Subsidiaries required by law to be
filed have been filed and all taxes shown by such returns or
otherwise assessed, which are due and payable, have been paid,
except tax assessments, if any, as are being contested in good
faith and as to which adequate reserves have been provided.
Except as disclosed in the Prospectuses, all other franchise
and income tax returns of the Company and its Subsidiaries
required to be filed pursuant to applicable foreign, state or
local law have been filed, except insofar as the failure to
file such returns would not have a material adverse effect on
the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, and all taxes
shown on such returns or otherwise assessed which are due and
payable have been paid, except for such taxes, if any, as are
being contested in good faith and as to which adequate
reserves have been provided. To the best of the Company's
knowledge, the charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of any income and
corporate franchise tax liability for any years not finally
determined are adequate to meet any assessments or
re-assessments for additional income or corporate franchise
tax for any years not finally determined, except as disclosed
in the Prospectuses and except to the extent of any inadequacy
that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries,
considered as one enterprise.
(xxvii) The Company has obtained the written
agreements of each of (i) Xxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxxxxxxxx, Xxxxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxxxxx, Xx., Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxx, in the forms previously furnished to you
that, for a period of 90 days from the date hereof and (ii)
from Xxxxxx Xxxxx, Inc., in the form previously furnished to
you, that until October 30, 1995, such parties will not,
without the prior written consent of Xxxxxxx Xxxxx on behalf
of the Underwriters, directly or indirectly, sell, offer to
sell, grant any
14
option for the sale of, or otherwise dispose of any shares of
Common Stock or securities or rights convertible into or
exercisable or exchangeable for Common Stock, other than with
respect to Xxxxx X. Xxxxxxx with respect to the sale of the
Offered Shares pursuant to this Agreement and the U.S.
Purchase Agreement.
(xxviii) Except as set forth in the Prospectuses,
there are no holders of securities (debt or equity) of the
Company, or holders of rights (including, without limitation,
preemptive rights), warrants or options to obtain securities
of the Company or its Subsidiaries, who have the right to
request the Company to register securities held by them under
the 1933 Act, other than holders who will not have such rights
for the 90-day period after the date hereof (or, in the case
of Xxxxxx Xxxxx, Inc., until October 30, 1995), or who have
waived their rights with respect to the inclusion of their
securities in the registration statement on Form S-3 relating
to the Offered Shares.
(xxix) The Company and its Subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management's general and specific
authorizations; (ii) transactions are recorded as necessary to
permit preparations of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific
authorizations; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(b) The Selling Stockholder represents and warrants to, and
agrees with, each of the Managers as follows:
(i) The Selling Stockholder is not prompted to sell
the Offered Shares to be sold by the Selling Stockholder by
any information concerning the Company that is not set forth
in the Prospectuses or other documents filed by the Company
with the Commission pursuant to the periodic reporting and
other informational requirements of the Exchange Act.
(ii) The Selling Stockholder does not have any
knowledge or any reason to believe that the Registration
Statement or the Prospectuses (or any amendment or supplement
thereto or any documents incorporated by reference therein)
contain any untrue statements of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the
15
statements therein not misleading; except that the foregoing
shall only apply to statements in or omissions from any such
document in reliance upon, and in conformity with, information
furnished to the Company by or on behalf of the Selling
Stockholder, specifically for use in the preparation thereof.
(iii) This Agreement and the U.S. Purchase Agreement
have been, and the International Price Determination Agreement
and the U.S. Price Determination Agreement on the date thereof
will be, duly executed and delivered by such Selling
Stockholder.
(iv) Except as set forth in the Prospectuses, there
is no action, suit, investigation (of which the Selling
Stockholder has received written notice) or proceeding before
or by any government, governmental instrumentality or court,
domestic or foreign, now pending or, to the knowledge of the
Selling Stockholder, threatened to which the Selling
Stockholder is or would be a party or of which the property of
the Selling Stockholder is or may be subject, that (i) seeks
to restrain, enjoin, prevent the consummation of or otherwise
challenge the sale of Offered Shares by the Selling
Stockholder or any of the other transactions contemplated
hereby or (ii) questions the legality or validity of any such
transactions or seeks to recover damages or obtain other
relief in connection with any such transactions.
(v) No authorization, approval, consent or license of
any government, governmental instrumentality or court (other
than under the 1933 Act and the 1933 Act Regulations and the
securities or blue sky laws of the various states) is required
for the execution and delivery by the Selling Stockholder of
this Agreement, the U.S. Purchase Agreement, the International
Price Determination Agreement and the U.S. Price Determination
Agreement and the valid sale and delivery of the Offered
Shares to be sold by the Selling Stockholder hereunder and
thereunder.
(vi) The execution and delivery of this Agreement,
the U.S. Purchase Agreement, the International Price
Determination Agreement and the U.S. Price Determination
Agreement by the Selling Stockholder, the sale of the Offered
Shares by the Selling Stockholder hereunder and thereunder,
the compliance by the Selling Stockholder with all of the
provisions of this Agreement, the U.S. Purchase Agreement, the
International Price Determination Agreement and the U.S. Price
Determination Agreement and the consummation of the
transactions herein and therein contemplated will not result
in a breach by the Selling Stockholder of, or constitute a
default by the Selling Stockholder under, any
16
agreement, instrument, decree, judgment or order to which the
Selling Stockholder is a party or by which the Selling
Stockholder may be bound or the properties of the Selling
Stockholder may be subject.
(vii) The Selling Stockholder has, and will at the
Closing Time have, good and valid title to the International
Shares to be sold by the Selling Stockholder pursuant to this
Agreement, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind;
and, upon delivery of such International Shares and payment of
the purchase price therefor as contemplated in this Agreement
and the U.S. Purchase Agreement, each of the Managers will
receive good and valid title to the International Shares
purchased by it from the Selling Stockholder, free and clear
of any pledge, lien, security interest, charge, claim, equity
or encumbrance of any kind.
(viii) Certificates for all of the Offered Shares to
be sold by the Selling Stockholder pursuant to this Agreement
and the U.S. Purchase Agreement, in suitable form for transfer
by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed
will be delivered to the Managers pursuant to this Agreement
and the U.S. Underwriters pursuant to the U.S. Purchase
Agreement.
(ix) The Selling Stockholder has not taken and will
not take, directly or indirectly, any action designed to cause
or result in stabilization or manipulation of the price of the
Common Stock; and the Selling Stockholder has not distributed
and will not distribute any prospectus (as such term is
defined in the 1933 Act and the 1933 Act Regulations) in
connection with the offering and sale of the Offered Shares
other than any preliminary prospectus filed with the
Commission or the Prospectuses or other material permitted by
the 1933 Act or the 1933 Act Regulations.
(c) Any certificate signed by any officer of the Company or
any Subsidiary and delivered to you or to Fried, Xxxxx, Xxxxxx, Xxxxxxx &
Xxxxxxxx as counsel for the Underwriters at or prior to the Closing Time
pursuant to this Agreement or the transactions contemplated hereby shall be
deemed a representation and warranty by the Company or such Subsidiary, as the
case may be, to each Manager as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholder as such and
delivered to you or to counsel for the Underwriters at or prior to the Closing
Time pursuant to the terms of this Agreement or the transactions contemplated
hereby shall be deemed a representation and warranty by the Selling Stockholder
to each Manager, as to the matters covered thereby.
17
Section 2. Sale and Delivery to the Managers; Closing. (a) On
the basis of the representations and warranties herein contained, and subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Manager, severally and not jointly, and each Manager agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in the International Price Determination Agreement, that proportion of the
number of Initial International Shares being sold by the Company which the
number of Initial Shares set forth in Schedule A opposite the name of such
Manager (plus such additional number of Initial International Shares that such
Manager may become obligated to purchase pursuant to Section 11 hereof) bears to
the total number of Initial International Shares subject, in each case, to such
adjustments as the Managers in their discretion shall make to eliminate any sale
or purchases of fractional shares.
(b) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Selling
Stockholder agrees to sell to each Manager, severally and not jointly, and each
Manager agrees, severally and not jointly, to purchase from the Selling
Stockholder, at the purchase price per share set forth in the International
Price Determination Agreement, that proportion of the number of Initial
International Shares being sold by the Selling Stockholder which the number of
Initial International Shares set forth in Schedule A opposite the name of such
Manager (plus such additional number of Initial International Shares that such
Manager may become obligated to purchase pursuant to Section 11 hereof) bears to
the total number of Initial International Shares, subject, in each case, to such
adjustments as the Managers in their discretion shall make to eliminate any
sales or purchases of fractional shares.
(c) If the Company has elected not to rely upon Rule 430A, the
initial public offering price per share for the Initial International Shares and
the purchase price per share for the Initial International Shares to be paid by
the several Managers shall be agreed upon and set forth in the International
Price Determination Agreement, dated the date hereof, and an amendment to the
Registration Statement containing such per share price information will be filed
before the Registration Statement becomes effective.
(d) If the Company has elected to rely upon Rule 430A, the
initial public offering price per share for the Initial International Shares and
the purchase price per share for the Initial International Shares to be paid by
the several Managers shall be agreed upon and set forth in the International
Price Determination Agreement. In the event that the International Price
Determination Agreement has not been executed by the close of business on the
fourteenth business day following the date on which the Registration Statement
becomes effective, this Agreement shall terminate forthwith, without liability
of any party to any other party except that Sections 7 and 8 shall remain in
effect.
18
(e) In addition, on the basis of the representations,
warranties and covenants herein contained, and subject to the terms and
conditions herein set forth, the Company and the Selling Stockholder hereby
grant options to the Underwriters, severally and not jointly, to purchase up to
an additional 1,440,000 shares of Common Stock at the same purchase price per
share as shall be applicable to the Initial International Shares, of which
288,000 shares shall be the pro rata portion of the Managers and 1,152,000
shares shall be the pro rata portion of the U.S. Underwriters (consisting of
1,032,000 and 120,000 shares of Common Stock from the Company and the Selling
Stockholder, respectively). The option hereby granted to the Managers will
expire 30 days after the date upon which the Registration Statement becomes
effective or, if the Company has elected to rely upon Rule 430A, the date of the
International Price Determination Agreement, and, in any case, may be exercised
in whole or from time to time in part only for the purpose of covering
over-allotments that may be made in connection with the offering and
distribution of the Initial Shares upon delivery of notice by the Lead Managers
and the U.S. Representatives to the Company setting forth the number of Option
Shares as to which the several Managers are exercising the option, and the
time and date of payment and delivery thereof. Such time and date of delivery
(the "Date of Delivery") shall be determined by you but shall not be later than
three full business days after the exercise of such option, nor in any event
prior to the Closing Time, unless otherwise agreed by Xxxxxxx Xxxxx and the
Company. If the option is exercised as to all or any portion of the Option
Shares, the International Option Shares as to which the option is exercised
shall be purchased by the Managers, severally and not jointly, in the respective
proportions that bear the same relationship to the number of International
Option Shares to be purchased at the Date of Delivery as the number of Initial
International Shares set forth opposite the name of each Manager in Schedule A
hereto bears to the total number of Initial International Shares (such
proportions are hereinafter referred to as each Manager's "underwriting
obligation proportion").
(f) Payment of the purchase price for, and delivery of
certificates for, the Initial International Shares shall be made at the offices
of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or at such other place as shall be agreed upon by the Company, the
Selling Stockholder and you, at 10:00 A.M. (New York time) either (x) on the
third full business day after the effective date of the Registration Statement,
or (y) if the Company has elected to rely upon Rule 430A, on the third full
business day after execution of the International Price Determination Agreement
(unless, in either case, postponed pursuant to Section 11 or 12), or at such
other time not more than ten full business days thereafter as you, the Company
and the Selling Stockholder shall determine (such date and time of payment and
delivery being herein called the "Closing Time"). In addition, in the event that
any or all of the International Option Shares are purchased by the Managers,
payment of the purchase price for, and delivery of certificates for, such
International Option Shares shall be made at the offices
19
of Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx set forth above, or at such other
place as the Company and you shall determine, on the Date of Delivery as
specified in the notice from you to the Company. Payment shall be made to the
Selling Stockholder and the Company by certified or official bank check or
checks or wire transfer in New York Clearing House funds payable to the order of
the Company and to the Selling Stockholder, as the case may be, against delivery
to you for the respective accounts of the several Managers of certificates for
the International Shares to be purchased by them.
(g) Certificates for the Initial International Shares and
International Option Shares to be purchased by the Managers shall be in such
denominations and registered in such names as you may request in writing at
least one full business day before the Closing Time or the Date of Delivery, as
the case may be. The certificates for the Initial International Shares and
International Option Shares will be made available in New York City for
examination and packaging by you not later than 3:00 P.M. (New York time) on the
last business day prior to the Closing Time or the Date of Delivery, as the case
may be.
(h) It is understood that each Manager has authorized the Lead
Managers, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Initial International Shares that it has agreed
to purchase. You, individually and not as Lead Managers, may (but shall not be
obligated to) make payment of the purchase price for the Initial International
Shares or International Option Shares to be purchased by any Manager whose check
or checks shall not have been received by the Closing Time or the Date of
Delivery, as the case may be.
(i) The several and not joint obligations of the Company and
the Selling Stockholder, to sell to each Manager the Initial International
Shares, the obligation of the Company to sell to each Manager the International
Option Shares, respectively, and the several and not joint obligations of the
Managers to purchase and pay for the International Shares, upon the terms and
subject to the conditions of this Agreement, are subject to the concurrent
closing of the sale of the Initial U.S. Shares and the U.S. Option Shares,
respectively, to the U.S. Underwriters pursuant to the terms of the U.S.
Purchase Agreement.
Section 3. Certain Covenants of the Company. The Company
covenants with each Manager as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and, if the Company elects to rely
upon Rule 430A and subject to Section 3(b), will comply with the requirements of
Rule 430A and will notify you promptly, (i) when the Registration Statement, or
any post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the
20
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission to amend the Registration Statement, to amend or supplement any
Prospectus or for additional information and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Offered Shares for
offering or sale in any jurisdiction, or of the institution or threatening of
any proceedings for any of such purposes. The Company will make every reasonable
effort to prevent the issuance of any such stop order or of any order preventing
or suspending such use and, if any such order is issued, to obtain the lifting
thereof at the earliest possible moment. If the Company elects to rely on Rule
434 under the 1933 Act Regulation, the Company will use an abbreviated term
sheet that complies with the requirements of Rule 434 under the 1933 Act
Regulations. If the Company elects not to rely on Rule 434, the Company will
provide the Managers with copies of the International Prospectus, in such number
as the Managers may reasonably request, and file or transmit for filing with the
Commission such International Prospectus in accordance with Rule 424(b) of the
1933 Act Regulations by the close of business in New York on the business day
immediately succeeding the date of the International Price Determination
Agreement. If the Company elects to rely on Rule 434 of the 1933 Act
Regulations, the Company will provide the Managers with copies of the
abbreviated term sheet, in such number as the Underwriters may reasonably
request, and file or transmit for filing with the Commission an International
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York or the business day immediately succeeding the date of the
International Price Determination Agreement.
(b) The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement thereto,
or any document incorporated by reference therein (i) if the Company has not
elected to rely upon Rule 430A, to the Prospectuses or (ii) if the Company has
elected to rely upon Rule 430A, to either the prospectus included in the
Registration Statement at the time it becomes effective or to the Prospectuses,
of which you shall not have previously been advised and furnished a copy or to
which you or Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the
Managers shall reasonably object.
(c) The Company has furnished or will furnish to you and your
counsel, without charge, signed copies of the Registration Statement (as
originally filed) and of all amendments thereto (including exhibits filed
therewith and documents incorporated by reference therein), whether filed before
or after the Registration Statement becomes effective, copies of all exhibits
and documents filed therewith, and signed copies of all consents and
certificates of experts, and has furnished or will furnish to you, for each
21
other Manager, one conformed copy of the Registration Statement as originally
filed and each amendment thereto.
(d) The Company will deliver to each Manager, without charge,
from time to time until the effective date of the Registration Statement (or, if
the Company has elected to rely upon Rule 430A, until the time the International
Price Determination Agreement is executed and delivered), as many copies of each
preliminary prospectus as such Manager may reasonably request, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will deliver to each Manager, without charge, as soon as the
Registration Statement shall have become effective (or, if the Company has
elected to rely upon Rule 430A, as soon as practicable after the International
Price Determination Agreement has been executed and delivered) and thereafter
from time to time as requested during the period when the Prospectuses are
required to be delivered under the 1933 Act, such number of copies of the
Prospectuses (as supplemented or amended) as such Manager may reasonably
request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Offered
Shares as contemplated in this Agreement, the U.S. Purchase Agreement and the
Prospectuses. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Shares any event shall occur
or condition exist as a result of which it is necessary, in the opinion of
counsel for the Managers, to amend the Registration Statement or amend or
supplement any Prospectus in order that the Prospectuses will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement any Prospectus in order to
comply with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934
Act or the 1934 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectuses comply with such requirements.
(f) The Company will endeavor, in cooperation with the
Managers, to qualify the Offered Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions as you may
designate and to maintain such qualifications in effect for a period of not less
than one year from the effective date of the Registration Statement; provided,
however, that neither the Company nor any Subsidiary shall be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in
22
which it is not otherwise so subject. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the Offered
Shares have been qualified as above provided.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations), covering
a period of 12 months beginning after the effective date of the Registration
Statement but not later than the first day of the Company's fiscal quarter next
following such effective date.
(h) For a period of 90 days from the date hereof, the Company
will not, without the prior written consent of Xxxxxxx Xxxxx on behalf of the
Underwriters, directly or indirectly, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock, other than to
(i) the U.S. Underwriters pursuant to the U.S. Purchase Agreement and the
Managers pursuant to this Agreement and (ii) eligible participants in the
Company's employee stock plans pursuant to the terms thereof as in effect on the
date hereof.
(i) The Company will use its best efforts to effect the
listing of the Common Stock on the New York Stock Exchange on the date of the
International Price Determination Agreement.
(j) The Company, during the period when the Prospectuses are
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Sections 13, 14
or 15 of the 1934 Act subsequent to the time the Registration Statement becomes
effective.
(k) For a period of five years after the Closing Time, the
Company will furnish to you and each Manager that so requests copies of all
annual reports, quarterly reports and current reports filed with the Commission
on Forms 10-K and 10-Q and, to the extent requested, Form 8-K or such other
similar forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to its stockholders
generally.
(l) If the Company has elected to rely upon Rule 430A, it will
take such steps as it deems necessary to ascertain promptly whether the forms of
prospectuses transmitted for filing under Rule 424(b) were received for filing
by the Commission and, in the event that they were not, it will promptly file
such prospectuses.
(m) The Company has complied, and will comply, with all of the
provisions of Florida H.B. 1771, as codified in sec. 517.075 Florida Statutes,
1987, as
23
amended, and all regulations promulgated thereunder relating to issuers or their
affiliates doing business with the government of Cuba or with any person or
affiliate located in Cuba.
(n) The Company will use the net proceeds received by it from
the sale of the Offered Shares in the manner specified in the Prospectuses under
the caption "Use of Proceeds."
Section 4. Payment of Expenses. (a) The Company will pay all
expenses incident to the performance of its obligations under this Agreement and
the U.S. Purchase Agreement, including (i) the printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the
Prospectuses and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the Underwriters, (ii) the copying or printing, as
applicable, and distribution of this Agreement (including the International
Price Determination Agreement), the Intersyndicate Agreement among the U.S.
Underwriters and the Managers, the U.S. Purchase Agreement (including the U.S.
Price Determination Agreement), the Agreement among Managers, the certificates
for the Offered Shares and a survey of state securities or blue sky laws (the
"Blue Sky Survey"), (iii) the delivery of the certificates for the Offered
Shares to the Underwriters, including any capital duties, stamp duties and stock
or other transfer taxes payable upon the sale of the Offered Shares to the
Underwriters and the transfer of the Offered Shares between the U.S.
Underwriters and the Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisers, (v) the qualification of the Offered
Shares under the applicable securities laws in accordance with Section 3(f) and
any filing fees for review of the offering with the National Association of
Securities Dealers, Inc., including filing fees and reasonable fees and
disbursements of Fried, Xxxxx, Harris, Xxxxxxx & Xxxxxxxx as counsel for the
Underwriters in connection therewith and in connection with the Blue Sky Survey,
(vi) the fees and expenses of any transfer agent or registrar for the Offered
Shares, and (vii) the listing fees and expenses incurred in connection with
listing the Offered Shares on the New York Stock Exchange, if any.
(b) The Selling Stockholder will pay any transfer taxes
attributable to the sale by the Selling Stockholder of Initial International
Shares and any fees and disbursements of such Selling Stockholder's counsel, if
any, not paid or payable by the Company pursuant to Section 4(a) or otherwise.
(c) If this Agreement is terminated by you in accordance with
the provisions of Section 5, 10(a)(i) or 12, the Company shall reimburse the
Managers through you for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx
& Xxxxxxxx as counsel for the Managers.
24
Section 5. Conditions of Managers' Obligations. In addition to
the execution and delivery of the International Price Determination Agreement,
the obligations of the several Managers to purchase and pay for the
International Shares that they have respectively agreed to purchase hereunder
(including any International Option Shares as to which the option granted in
Section 2(e) has been exercised in the event the Date of Delivery determined by
you is the same as the Closing Time) are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholder
contained herein (including those contained in the International Price
Determination Agreement) or in certificates of any officer of the Company or any
Subsidiary and the Selling Stockholder delivered pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholder of their
respective obligations hereunder in all material respects, and to the following
further conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:00 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing with the approval of a majority in interest of the
several Managers; and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company, shall have
been threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the
Managers. If the Company has elected to rely upon Rule 430A, Prospectuses
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) At the Closing Time, you shall have received the signed
opinion of Xxxxxxx X. Xxxxxxxxxxx, Esq., Vice President, General Counsel and
Secretary for the Company, dated as of the Closing Time, in the form attached
hereto as Exhibit B, together with reproduced copies of such opinions for each
of the Managers, and in form and substance satisfactory to counsel for the
Managers.
(c) At the Closing Time, you shall have received the signed
opinions of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx, counsel for the Company, dated
as of the Closing Time, in the forms attached hereto as Exhibit C, together with
reproduced copies of such opinions for each of the Managers, in form and
substance satisfactory to counsel for the Managers.
25
(d) At the Closing Time, you shall have received the signed
opinion of counsel for the Selling Stockholder reasonably acceptable to you, as
requested by the Managers, dated as of the Closing Time, in the form attached
hereto as Exhibit D, together with reproduced copies of such opinions for each
of the Managers, and in form and substance satisfactory to counsel for the
Managers.
(e) At the Closing Time, you shall have received the signed
opinion of Xxxxxx, Xxxxxxxxx & Xxxxxxxxx, special license and trademark counsel
for the Company reasonably acceptable to you, as requested by the Managers,
dated as of the Closing Time, in the form attached hereto as Exhibit E, together
with reproduced copies of such opinions for each of the Managers, and in form
and substance satisfactory to counsel for the Managers.
(f) At the Closing Time, you shall have received the favorable
opinion of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the Managers,
dated as of the Closing Time, together with reproduced copies of such opinion
for each of the other Managers, to the effect that the opinions delivered
pursuant to Sections 5(b), (c), (d) and (e) appear on their face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by you, and with respect to the legal
existence of the Company, the Offered Shares, this Agreement and the U.S.
Purchase Agreement, the Registration Statement, the Prospectuses and such other
related matters as you may require. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the
federal law of the United States, the law of the State of New York and the
General Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to you. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers or other appropriate representatives of the Company,
the Subsidiaries and the Selling Stockholder and certificates of public
officials.
(g) At the Closing Time, (i) the Registration Statement and
the Prospectuses, as they may then be amended or supplemented, shall conform in
all material respects to the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations, the Company shall have
complied in all material respects with Rule 430A (if it shall have elected to
rely thereon), the Registration Statement, as it may then be amended or
supplemented, shall not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements in the Registration Statement not misleading, and the Prospectuses,
as they may be amended or supplemented, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements in the Prospectuses, in light of the
circumstances under which they were made, not misleading, (ii) there shall not
have been, since the respective dates as of which information is given in the
Prospectuses, any material adverse change in
26
the condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business, (iii) no action, suit
or proceeding at law or in equity shall be pending or, to the knowledge of the
Company, threatened against the Company or any Subsidiary that would be required
to be set forth in the Prospectuses other than as set forth therein and no
proceedings shall be pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary before or by any federal, state or other
commission, board or administrative agency that could reasonably be expected to
materially and adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, other than as set forth in the
Prospectuses, (iv) the Company shall have complied with all agreements and
satisfied all conditions on their parts to be performed or satisfied at or prior
to the Closing Time, and (v) the other representations and warranties of the
Company set forth in Section 1(a) shall be accurate as though expressly made at
and as of the Closing Time. At the Closing Time, you shall have received a
certificate of the President or Vice President and the chief financial officer
or chief accounting officer of the Company, dated as of the Closing Time, to
such effect. As used in Section 5(g)(ii) and (iii), the term "Prospectuses"
means the Prospectuses in the form first used to confirm sales of the Offered
Shares.
(h) At the Closing Time, (i) the representations and
warranties of the Selling Stockholder set forth in Section 1(b) and in any
certificates by or on behalf of the Selling Stockholder delivered pursuant to
the provisions hereof shall be accurate as though expressly made at and as of
the Closing Time, (ii) the Selling Stockholder shall have performed her
obligations under this Agreement and the U.S. Purchase Agreement in all material
respects and (iii) you shall have received a certificate of the Selling
Stockholder to the effect that the representations and warranties of the Selling
Stockholder set forth in 1(b) are accurate as though expressly made at and as of
the Closing Time.
(i) At the time that this Agreement is executed by the
Company, you shall have received from Ernst & Young LLP ("E&Y")and Price
Waterhouse LLP letters, dated such date, in form and substance satisfactory to
you, together with signed or reproduced copies of such letter for each of the
other Managers, confirming that they are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the applicable
published 1933 Act Regulations, and stating in effect that (in the case of E&Y,
as to clause (i) and to the extent applicable clause (iii) only):
(i) in their opinion, the audited financial
statements and the related financial statement schedules
included or incorporated by reference in the Registration
Statement and the Prospectuses comply as to form in all
27
material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an
examination in accordance with generally accepted auditing
standards) consisting of a reading of the minutes of all
meetings of the shareholders and directors of the Company and
its Subsidiaries and each committee of the board of directors
of each of the Company and its Subsidiaries, inquiries of
certain officials of the Company and its Subsidiaries
responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to
believe that:
(A) at September 2, 1995 and at a specified
date not more than five days prior to the date of this
Agreement, there was (i) any change in the consolidated
stockholders' equity or capital stock or any decrease in
consolidated current assets, with any current or total assets
or (ii) any increase in long-term debt of the Company and its
Subsidiaries as compared with the amounts shown in the latest
balance sheet included or incorporated by reference in the
Registration Statement, except in each case for changes,
decreases or increases which the Registration Statement
discloses have occurred or may occur; or
(B) for the period from January 7, 1995 to
September 2, 1995 and to a specified date not more than five
days prior to the date of this Agreement, there was any
decrease in consolidated net revenues, income from continuing
operations before income taxes, or in the total or per-share
amounts of consolidated net income or in other amounts
specified by the Lead Managers, in each case as compared with
the comparable period in the preceding year, except in each
case, for any decreases that the Registration Statement
discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in
clause (ii) above, they have performed other specified
procedures, not constituting an audit, with respect to certain
amounts, percentages, numerical data and financial information
appearing or incorporated by reference in the Registration
Statement, which have previously been specified by you and
which shall be specified in such letter, and have compared
certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the
Company and its Subsidiaries.
28
(j) At the Closing Time, you shall have received from Ernst &
Young LLP and Price Waterhouse letters, in form and substance satisfactory to
you and dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letters furnished pursuant to Section 5(i) above, except
that (i) the specified date referred to shall be a date not more than five days
prior to the Closing Time. In the event the Company relies on Rule 430A and the
final Prospectuses furnished to the Underwriters in connection with the offering
of the Offered Shares differ from the Prospectuses included in the Registration
Statement at the time of effectiveness, such letter shall update the procedures
referred to in clauses 5(i) above.
(k) At the Closing Time, you shall have received a certificate
of the Chief Financial Officer of the Company as to certain agreed upon
accounting matters not covered by the letters referred to in clauses 5(i) and
5(j) above.
(l) At the Closing Time, counsel for the Underwriters shall
have been furnished with all such documents, certificates and opinions as they
may reasonably request for the purpose of enabling them to pass upon the
issuance and sale of the Offered Shares as contemplated in this Agreement and
the U.S. Purchase Agreement and the matters referred to in Section 5(g) and in
order to evidence the accuracy and completeness of any of the representations,
warranties or statements of the Company and the Selling Stockholder, the
performance of any of the covenants of the Company and the Selling Stockholder,
or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company and the Selling Stockholder at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Offered Shares as contemplated in this Agreement and the U.S. Purchase Agreement
shall be reasonably satisfactory in form and substance to you and to Fried,
Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the Underwriters.
(m) The Offered Shares shall have been duly authorized for
listing by the New York Stock Exchange in the date of the International Price
Determination Agreement, subject only to official notice of issuance thereof.
(n) The Selling Stockholder shall have delivered to you on or
prior to the Closing Time a properly completed and executed United States
Treasury Department Form W/9 (or other applicable form or statement specified by
Treasury Department regulations).
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you on notice to the Company and the Selling
Stockholder at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to
29
any other party, except as provided in Section 4 herein. Notwithstanding any
such termination, the provisions of Section 7 and 8 herein shall remain in
effect.
Section 6. Conditions to Purchase of International Option
Shares. In the event that the Managers exercise their option granted in Section
2 to purchase all or any of the International Option Shares and the Date of
Delivery determined by you pursuant to Section 2 is later than the Closing Time,
the obligations of the several Managers to purchase and pay for the
International Option Shares that they shall have respectively agreed to purchase
pursuant to this Agreement are subject to the accuracy of the representations
and warranties of the Company and the Selling Stockholder herein contained, to
the performance of the Company and the Selling Stockholder of their respective
obligations in all material respects hereunder and to the following further
conditions:
(a) The Registration Statement shall remain effective at the
Date of Delivery, and at the Date of Delivery no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company or the Selling
Stockholder shall have been threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the reasonable satisfaction of Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as
counsel for the Managers.
(b) At the Date of Delivery, the provisions of Section 5(g)
shall have been complied with at and as of the Date of Delivery and, at the Date
of Delivery, you shall have received a certificate of the President or a Vice
President and chief financial officer or chief accounting officer of the Company
with respect to the provisions of Section 5(g), dated as of the Date of
Delivery, to such effect.
(c) At the Date of Delivery, the provisions of Section 5(h)
shall have been complied with at and as of the Date of Delivery.
(d) At the Date of Delivery, you shall have received the
favorable opinions of Xxxxxxx X. Xxxxxxxxxxx, Esq., Vice President, General
Counsel and Secretary of the Company and, Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx,
counsel for the Company together with reproduced copies of such opinion for each
of the other Managers in form and substance satisfactory to Fried, Xxxxx,
Xxxxxx, Xxxxxxx & Xxxxxxxx as counsel for the Managers, dated as of the Date of
Delivery, relating to the Option Shares and otherwise to the same effect as the
opinions required by Sections 5(b), (c), (d) and (e).
(e) At the Date of Delivery, you shall have received the
favorable opinion of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, counsel for the
Managers, dated as
30
of the Date of Delivery, relating to the International Option Shares and
otherwise to the same effect as the opinion required by Section 5(f).
(f) At the Date of Delivery, you shall have received letters
from Xxxxx & Young LLP in form and substance satisfactory to you and dated as of
the Date of Delivery, to the effect that they reaffirm the statements made in
the letter furnished pursuant to Section 5(i), except that the specified date
referred to shall be a date not more than five days prior to the Date of
Delivery.
(g) At the Date of Delivery, Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx &
Xxxxxxxx as counsel for the Managers shall have been furnished with all such
documents, certificates and opinions as they may reasonably request for the
purpose of enabling them to pass upon the sale of the Option Shares as
contemplated in this Agreement and the matters referred to in Section 6(d) and
in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company, the performance of any
of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all actions taken by the Company at or prior to the Date
of Delivery in connection with the authorization, issuance and sale of the
Option Shares as contemplated in this Agreement shall be reasonably satisfactory
in form and substance to you and to Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx as
counsel for the Managers.
Section 7. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Manager and each person, if any, who controls
any Manager within the meaning of Section 15 of the 1933 Act to the extent and
in the manner set forth in clauses (i), (ii) and (iii) below. In addition,
subject to subsection (d) of this Section, the Selling Stockholder, severally
and not jointly, agrees to indemnify and hold harmless each Manager and each
person, if any, who controls any Manager within the meaning of Section 15 of the
1933 Act, as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of an
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, if applicable,
or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue
statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectuses (or
any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
31
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company and the
Selling Stockholder; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to the last sentence of Section
7(c), fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that (i) this indemnity does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, if applicable, or any preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by any Manager expressly for use in
the Registration Statement (or any amendment thereto) and (ii) such indemnity
with respect to any preliminary prospectus shall not inure to the benefit of any
Manager (or any persons controlling such Manager) from whom the person asserting
such loss, claim, damage or liability purchased the Offered Shares which are the
subject thereof if such person did not receive a copy of the International
Prospectus (or the International Prospectus as amended or supplemented) at or
prior to the confirmation of the sale of such Offered Shares to such person in
any case where such delivery is required by the 1933 Act and the untrue
statement or omission or alleged untrue statement or omission of a material fact
contained in such preliminary prospectus was corrected in the International
Prospectus (or the International Prospectus as amended or supplemented).
In making a claim for indemnification under this Section 7
(other than pursuant to clause (a)(iii) of this Section 7) or contribution under
Section 8 by the Company or the Selling Stockholder, the indemnified parties may
proceed against either (i) both the Company and the Selling Stockholder or (ii)
the Company only, but may not proceed solely against the Selling Stockholder. In
the event that the indemnified parties are entitled to seek indemnity or
contribution hereunder against any loss, liability, claim, damage and expense
incurred with respect to a final judgment from a trial court then, as a
32
precondition to any indemnified party obtaining indemnification or contribution
from the Selling Stockholder, the indemnified parties shall first obtain a final
judgment from a trial court that such indemnified parties are entitled to
indemnity or contribution under this Agreement with respect to such loss,
liability, claim, damage or expense (the "Final Judgment") from the Company and
the Selling Stockholder and shall seek to satisfy such Final Judgment in full
from the Company by making a written demand upon the Company for such
satisfaction. Only in the event such Final Judgment shall remain unsatisfied in
whole or in part 45 days following the date of receipt by the Company of such
demand shall any indemnified party have the right to take action to satisfy such
Final Judgment by making demand directly on the Selling Stockholder (but only if
and to the extent the Company has not already satisfied such Final Judgment,
whether by settlement, release or otherwise). The indemnified parties may
exercise this right to first seek to obtain payment from the Company and
thereafter obtain payment from the Selling Stockholder without regard to the
pursuit by any party of its rights to the appeal of such Final Judgment. The
indemnified parties shall, however, be relieved of their obligation to first
obtain a Final Judgment, seek to obtain payment from the Company with respect to
such Final Judgment or, having sought such payment, to wait such 45 days after
failure by the Company to immediately satisfy any such Final Judgment if (i) the
Company files a petition for relief under the United States Bankruptcy Code (the
"Bankruptcy Code"), (ii) an order for relief is entered against the Company in
an involuntary case under the Bankruptcy Code, (iii) the Company makes an
assignment for the benefit of its creditors, or (iv) any court orders or
approves the appointment of a receiver or custodian for the Company or a
substantial portion of its assets. The foregoing provisions of this paragraph
are not intended to require any indemnified party to obtain a Final Judgment
against the Company or the Selling Stockholder before obtaining reimbursement of
expenses pursuant to clause (a)(iii) of this Section 7. However, the indemnified
parties shall first seek to obtain such reimbursement in full from the Company
by making a written demand upon the Company for such reimbursement. Only in the
event such expenses shall remain unreimbursed in whole or in part 45 days
following the date of receipt by the Company of such demand shall any
indemnified party have the right to receive reimbursement of such expenses from
the Selling Stockholder by making written demand directly on the Selling
Stockholder (but only if and to the extent the Company has not already satisfied
the demand for reimbursement, whether by settlement, release or otherwise). The
indemnified parties shall, however, be relieved of their obligation to first
seek to obtain such reimbursement in full from the Company or, having made
written demand therefor, to wait such 45 days after failure by the Company to
immediately reimburse such expenses if (i) the Company files a petition for
relief under the Bankruptcy Code, (ii) an order for relief is entered against
the Company in an involuntary case under the Bankruptcy Code, (iii) the Company
makes an assignment for the benefit
33
of its creditors, or (iv) any court orders or approves the appointment of a
receiver or custodian for the Company or a substantial portion of its assets.
(b) Each Manager agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement and, each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act and the Selling
Stockholder against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, if applicable, or any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished to the Company by
such Manager expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, if applicable, or such
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. Any indemnifying party may participate
at its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying party or parties be liable for
the fees and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdictions arising out of the same general allegations or circumstances.
(d) The Selling Stockholder shall not be responsible for the
payment of an amount, pursuant to this Section 7, which exceeds the net proceeds
received by the Selling Stockholder from the sale of the Offered Shares by such
Selling Stockholder hereunder and under the U.S. Agreement.
34
(e) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding. No indemnifying party shall be liable for any settlement of any
action or claim for monetary damages which an indemnified party may effect
without the written consent of the indemnifying party.
Section 8. Contribution. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided for
in Section 7 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms subject to the last
paragraph of Section 7(b) hereof, the Company, the Selling Stockholder and the
Managers shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity incurred by the
Company, the Selling Stockholder and one or more of the Managers, as incurred in
such proportion that (a) the Managers are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus in respect of the International Shares bears to the
initial public offering price appearing thereon and (b) the Company and the
Selling Stockholder are severally liable for the balance on the same basis as
each of them would have been obligated to provide indemnification pursuant to
Section 7; provided, further, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls a Manager within the meaning of Section 15 of the 1933 Act shall have
the same rights to contribution as the Manager, and each director of the
Company, each officer of the Company who signed the Registration Statement, the
Selling Stockholder and each director, officer or employee thereof and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company and the
Selling Stockholder. Notwithstanding the provisions of this Section 8, the
Selling Stockholder shall not be required to contribute any amount under this
Section 8 in excess of the amount by which the proceeds received by such Selling
Stockholder in connection herewith exceed the aggregate amount such Selling
Stockholder has otherwise paid pursuant hereto and to Section 7(a).
Section 9. Representations, Warranties and Agreements to
Survive Delivery. The representations, warranties, indemnities, agreements and
other statements of the Company, its officers and the Selling Stockholder the
set forth in or made pursuant to this Agreement will remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Company, the Selling Stockholder or any
35
Manager or controlling person and will survive delivery of and payment for the
Offered Shares.
Section 10. Termination of Agreement. (a) You may terminate
this Agreement, by notice to the Company and the Selling Stockholder, at any
time at or prior to the Closing Time (i) if there has been, since the date as of
which information is given in the Prospectuses, any material adverse change, or
any development involving a prospective material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its Subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) if there has occurred any
material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities or other calamity or crisis the effect of
which in each case is such as to make it, in your judgment, impracticable to
market the International Shares or enforce contracts for the sale of the
International Shares, (iii) if trading in any securities of the Company has been
suspended by the Commission or the New York Stock Exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
or in the over-the-counter market has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by such exchanges or by order of the Commission, the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc. or any other governmental authority or (iv) if a
banking moratorium has been declared by either federal or New York authorities.
As used in this Section 10(a), the term "Prospectuses" means the Prospectuses in
the form first used to confirm sales of the Offered Shares.
(b) If this Agreement is terminated pursuant to this Section
10, such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4 hereof. Notwithstanding any such
termination, the provisions of Sections 7 and 8 shall remain in effect.
(c) This Agreement may also terminate pursuant to the
provisions of Section 2(d), with the effect stated in such Section.
Section 11. Default by One or More of the Managers. If one or
more of the Managers shall fail at the Closing Time to purchase the Initial
International Shares that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted International Shares"), you shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Managers, or any other underwriters, to purchase all, but not
less than all, of the Defaulted International Shares in such amounts as may be
agreed upon and upon the terms set forth in this Agreement; if, however, you
have not completed such arrangements within such 24-hour period, then:
36
(a) if the number of Defaulted International Shares does not
exceed 10% of the total number of Initial International Shares to be purchased
pursuant to this Agreement, the non-defaulting Managers shall be obligated to
purchase the full amount thereof in the proportions that their respective
Initial International Shares underwriting obligation proportions bear to the
underwriting obligation proportions of all non-defaulting Managers, or
(b) if the number of Defaulted International Shares exceeds
10% of the total number of Initial International Shares, this Agreement shall
terminate without liability on the part of any non-defaulting Managers.
No action taken pursuant to this Section 11 shall relieve any
defaulting Manager from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company or the Selling
Stockholder shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectuses or in any other documents or arrangements. As used
herein, the term "Manager" includes any person substituted for a Manager under
this Section 11.
Section 12. Default by the Company or the Selling Stockholder.
(a) If the Company shall fail at the Closing Time to sell and deliver the number
of Offered Shares that it is obligated to sell, then this Agreement shall
terminate without any liability on the part of any non-defaulting party except
to the extent provided in Section 4 and except that the provisions of Sections 7
and 8 shall remain in effect. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
(b) If the Selling Stockholder shall fail at the Closing Time
to sell and deliver the number of Offered Shares that she is obligated to sell,
then the Lead Managers may, at their option, by notice to the Company and the
Selling Stockholder either (a) terminate this Agreement without any liability on
the part of any non-defaulting party except to the extent provided in Section 4
and except the provisions of Sections 7 and 8 shall remain in effect or (b)
elect to purchase the Offered Shares which the non-defaulting party has agreed
to sell thereunder. No action taken pursuant to this Section shall relieve the
Selling Stockholder from liability, if any, in respect of such default.
Section 13. Notices. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices to you or the Managers shall be directed to you, c/x
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated at Xxxxxxx Xxxxx World
Headquarters, North Tower, World Financial
37
Center, New York, New York 10261, attention of Xxx X. XxxXxxxxxx with a copy to
Fried, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, XX
00000, attention of Xxxxxxx Xxxx Xxxxx, Esq.; and notices to the Company and the
selling stockholder shall be directed to the Company at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, xxxxxxxxx of Xxxxxxx X. Xxxxxxxxxxx, Esq. with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
attention of Xxxxxxx X. Xxxxxxx, Esq.
Section 14. Parties. This Agreement is made solely for the
benefit of the several Managers, the Selling Stockholder, the Company, and, to
the extent expressed, any person controlling the Company or any of the Managers,
and the directors of the Company, the officers of the Company who have signed
the Registration Statement, and the executors, administrators, successors and
assigns of such persons and, no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include any purchaser, as such purchaser, from any of the several Managers
of the International Shares. All of the obligations of the Managers hereunder
are several and not joint.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS. SPECIFIED TIMES OF THE DAY REFER TO NEW YORK CITY TIME.
Section 16. Jurisdiction. Each of the undersigned hereby
irrevocably submits in any suit, action or proceeding arising out of or in
relation to this Agreement, or any of the transactions contemplated hereby, to
the jurisdiction and venue of any federal or state court in the Borough of
Manhattan, City of New York, State of New York.
Section 17. Counterparts. This Agreement may be executed in
one or more counterparts and, when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
Section 18. Representation of Managers. You will act for the
several Managers and any action under or in respect of this Agreement taken by
you as Lead Managers will be binding upon all Managers.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument
38
will become a binding agreement among the Company, the Selling Stockholder and
the several Managers in accordance with its terms.
Very truly yours,
THE WARNACO GROUP, INC.
By________________________
Name:
Title:
_______________________
Xxxxx X. Xxxxxxx
Confirmed and accepted as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL LIMITED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX INTERNATIONAL LIMITED
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXXXXXX INTERNATIONAL LTD.
UBS LIMITED
By: XXXXXXX XXXXX INTERNATIONAL LIMITED
By ____________________________
Name:
Title:
For themselves and as Lead Managers of the other Managers named in Schedule A.
39
SCHEDULE A
Number of Initial
International Shares to
International Managers be Purchased
Xxxxxxx Xxxxx International Limited.................................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.................................
Bear, Xxxxxxx International Limited.................................................
Xxxxxx Xxxxxxx & Co. International Limited..........................................
Xxxxxxxxxxx International Ltd.......................................................
UBS Limited.........................................................................
---------
Total.................................................................. 1,920,000
=========
Exhibit A
THE WARNACO GROUP, INC.
(a Delaware corporation)
1,920,000 Shares of Common Stock
INTERNATIONAL PRICE DETERMINATION AGREEMENT
__________, 1995
XXXXXXX XXXXX INTERNATIONAL LIMITED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX INTERNATIONAL LIMITED
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXXXXXX INTERNATIONAL LTD.
UBS LIMITED
As Representatives of the several Managers
c/x Xxxxxxx Xxxxx International Limited
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Reference is made to the International Purchase Agreement dated
___________, 1995 (the "International Purchase Agreement") among The Warnaco
Group, Inc., a Delaware corporation (the "Company"), Xxxxx X. Xxxxxxx, Chairman,
President and Chief Executive Officer of the Company (the "Selling
Stockholder"), and the several Managers named in Schedule A thereto and hereto
(the "Managers"), for whom Xxxxxxx Xxxxx International Limited, Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, Bear, Xxxxxxx International Limited,
Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxxxxxx International Ltd. and
UBS Limited are acting as representatives (the "Lead Managers"). The
International Purchase Agreement provides for the purchase by the Managers from
the Company and the Selling Stockholder, subject to the terms and conditions set
forth therein, of an aggregate of 1,920,000 shares (the "Initial International
Shares") of the Company's common stock, par value $.01 per share. This Agreement
is the International Price Determination Agreement referred to in the
International Purchase Agreement.
Pursuant to Section 2 of the International Purchase Agreement, the
undersigned agree with the Lead Managers as follows:
1. The initial public offering price per share for the Initial
International Shares shall be $_________.
2. The purchase price per share for the Initial International
Shares to be paid by the several Managers shall be $_______, representing an
amount equal to the initial public offering price set forth above, less
$________ per share.
The Company represents and warrants to each of the Managers that the
representations and warranties of the Company set forth in Section 1(a) of the
International Purchase Agreement are accurate as though expressly made at and as
of the date hereof.
The Selling Stockholder represents and warrants to each of the Managers
that the representations and warranties of the Selling Stockholder set forth in
Section 1(b) of the International Purchase Agreement are accurate as though
expressly made at and as of the date hereof.
As contemplated by Section 2 of the International Purchase Agreement,
attached as Schedule A is a completed list of the several U.S. Underwriters,
which shall be part of this Agreement and the International Purchase Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts and together with the International
Purchase Agreement shall be a binding agreement among the Managers, the Company
and the Selling Stockholder in accordance with its terms and the terms of the
International Purchase Agreement.
Very truly yours,
THE WARNACO GROUP, INC.
By: ___________________
Name:
Title
-------------------
Xxxxx X. Xxxxxxx
Confirmed and accepted as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL LIMITED
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BEAR, XXXXXXX INTERNATIONAL LIMITED
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXXXXXX INTERNATIONAL LTD.
UBS LIMITED
By: XXXXXXX XXXXX INTERNATIONAL LIMITED
By: _______________________________________
Name:
Title:
For themselves and as Lead Managers of the other Managers named in Schedule A
attached hereto.
SCHEDULE A
Number of Initial
International Shares to
International Managers be Purchased
Xxxxxxx Xxxxx International Limited................................................
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation................................
Bear, Xxxxxxx International Limited................................................
Xxxxxx Xxxxxxx & Co. International Limited.........................................
Xxxxxxxxxxx International Ltd......................................................
UBS Limited........................................................................
---------
Total................................................................. 1,920,000
=========
