Exhibit 1.1
Shares
WEIGHT WATCHERS INTERNATIONAL, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
, 2001
Credit Suisse First Boston Corporation
XXXXXXX, XXXXX & CO.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue,
New York, N.Y.10010-3629
Dear Sirs:
1. INTRODUCTORY. Artal Luxembourg S.A. ("ARTAL") and each of the
additional selling stockholders listed on Schedule A hereto (the
"NON-CONTROLLING SELLING STOCKHOLDERS", and together with Artal, the "SELLING
STOCKHOLDERS"), propose to sell (the "Offering") to the several underwriters
named in Schedule B hereto (the "UNDERWRITERS") an aggregate of 17,400,000
outstanding shares (the "FIRM SECURITIES") of the Common Stock, no par value
(the "SECURITIES") of Weight Watchers International, Inc., a Virginia
corporation (the "COMPANY"), and certain of the Selling Stockholders (the
"Optional Selling Stockholders") also propose to sell to the Underwriters, at
the option of the Underwriters, an aggregate of not more than 2,610,000
additional outstanding shares (the "OPTIONAL SECURITIES") of the Company's
Securities as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the "OFFERED SECURITIES". The
Company and each Selling Stockholder hereby agree with the several
Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-69362) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A)
has been declared effective under the Securities Act of 1933, as
amended (the "ACT") and is not proposed to be amended or (B) is
proposed to be amended by amendment or post-effective amendment. If
such registration statement (the "INITIAL REGISTRATION STATEMENT") has
been declared effective, either (A) an additional registration
statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities may have been filed with the Commission pursuant to
Rule 462(b) ("RULE 462(B)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery
of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("RULE
462(C)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement
or, if filed prior to the execution and delivery of this Agreement,
the additional registration statement means (A) if the Company has
advised Credit Suisse First Boston Corporation ("CSFBC") and
Xxxxxxx, Xxxxx & Co., as representatives of the several Underwriters
(the "REPRESENTATIVES"), that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company
has advised the Representatives that it proposes to file an
amendment or post-effective amendment to such registration
statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment,
as the case may be, is declared effective by the Commission. If an
additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised
the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the
date and time as of which such registration statement is filed and
becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a part
of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant
to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL
REGISTRATION STATEMENT". The Initial Registration Statement and the
Additional Registration Statement are hereinafter referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The form of prospectus relating to the
Offered Securities, as first filed with the Commission pursuant to
and in accordance with Rule 424(b) ("RULE 424(B)") under the Act or
(if no such filing is required) as included in a Registration
Statement, is hereinafter referred to as the "PROSPECTUS". No
document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission (the "RULES AND REGULATIONS") and did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not contain, or will not
contain, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement, if any, is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
contains, or
will contain, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus
or any preliminary prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not
misleading. If the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will contain any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus or any preliminary prospectus or
any amendment or supplement thereto, in light of the circumstances
under which they were made) not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
Commonwealth of Virginia, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus and is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where such failure to be so qualified, be in
good standing or have such power or authority would not individually or
in the aggregate have a material adverse affect on the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole ("Material Adverse
Effect").
(iv) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the Act
(the "Significant Subsidiaries") has been duly incorporated or
organized and is an existing corporation or other entity, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, if applicable, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and is duly qualified to do business as a
foreign corporation, or other entity, as the case may be, in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified, be in good standing or
have such power or authority would not individually or in the aggregate
have a Material Adverse Effect; all of the issued and outstanding
capital stock or other ownership interests of each Significant
Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable; and, except for pledges in favor of Credit
Suisse First Boston, New York branch under Amendment Number 1 to the
Credit Agreement, dated April 26, 2001, among the Company, WW Funding
Corp., Credit Suisse First Boston, as syndicated agent, lead arranger
and book manager, BHF (USA) Capital Corporation, as the documentation
agent, and the various financial institutions named therein, the
capital stock or other ownership interests of each Significant
Subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects. Annex I attached
hereto sets forth a true and complete list of all of the Significant
Subsidiaries.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and are validly
issued, fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the
Company have no preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Offered Securities have been approved for listing
subject to notice of issuance on the New York Stock Exchange.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement in connection with the sale
of the Offered Securities, except such as (A) have been obtained and
made under the Act, (B) may be required under state securities laws and
(C) may be required by the securities laws of any jurisdiction outside
of the United States of America.
(x) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions
of, or constitute a default under, (A) any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their respective properties, or (B)
any agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary
is subject, or (C) the charter or by-laws of the Company or any such
subsidiary, except in the case of (A) or (B), where such breach,
violation or default would not individually or in the aggregate have
a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them, except where such failure would not individually or in
the aggregate have a Material Adverse Effect; and except as disclosed
in the Prospectus, the Company and its subsidiaries hold any leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them, except where such failure would not individually
or in the aggregate have a Material Adverse Effect.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them, in each case except to the extent where such failure to do so
would not individually or in the aggregate have a Material Adverse
Effect, and neither the Company nor any subsidiary of the Company has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
threatened that would have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, all material trademarks, trade names and
other rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xviii) The financial statements included in each Registration
Statement and the Prospectus present fairly in all material respects
the financial position of the Company and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows
for the periods shown, and, except as otherwise disclosed in the
Prospectus, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States
applied on a consistent basis; the schedules included in each
Registration Statement present fairly the information required to be
stated therein; and the assumptions used in preparing the pro forma
financial statements included in each Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xix) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xx) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(b) Artal represents and warrants to, and agrees with, the several
Underwriters that:
(i) Artal is a SOCIETE ANONYME and validly existing and, to
the extent such concept exists in the relevant jurisdiction, in good
standing under the laws of the jurisdiction of its organization.
(ii) This Agreement has been duly authorized, executed and
delivered by Artal.
(iii) The execution and delivery by Artal of, and the
performance by Artal of its obligations under, this Agreement will not
contravene any provision of applicable law or the
organizational documents of Artal or any agreement or other instrument
binding upon Artal or any of its assets or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over Artal or any of its assets, except where such contravention would
not individually or in the aggregate materially adversely affect the
ability of Artal to consummate the transactions contemplated hereby,
and no consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required to be obtained
or made by Artal for the performance by Artal for the performance of
its obligations under this Agreement, except (A) such as have been
obtained or made, (B) such as may be required under state securities
laws and (C) such as may be required by the securities laws of any
jurisdiction outside the United States of America.
(iv) Artal has, and on each Closing Date hereinafter mentioned
will have, full right, power and authority to enter into this Agreement
and to sell, assign, transfer and deliver the Offered Securities to be
delivered by Artal on such Closing Date hereunder; and upon the
delivery of and payment for the Offered Securities on each Closing Date
hereunder the several Underwriters will acquire a security entitlement
with respect to the Offered Securities to be delivered by Artal on such
Closing Date and no action based on an adverse claim may be asserted
against the Underwriters with respect to such Offered Securities.
(v) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission and did not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed or will conform, in all material
respects to the requirements of the Act and the Rules and Regulations
and did not contain, or will not contain, any untrue statement of a
material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement, if any, is prior to the execution
and delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus pursuant to
Rule 424(b) or (if no such filing is required) at the Effective Date of
the Additional Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus will conform,
in all material respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents contains, or will
contain, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus
or any preliminary prospectus or any amendment or supplement thereto,
in light of the circumstances under which they were made) not
misleading. If the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will contain any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectus or any preliminary prospectus or any amendment or
supplement thereto, in light of the circumstances under which they were
made) not misleading, and no Additional Registration Statement has been
or will be filed. The two preceding sentences apply only to the extent
statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the Company by
Artal specifically for use therein.
(vi) There are no material agreements or arrangements relating
to the Company or its subsidiaries to which Artal, or to Artal's
knowledge, to which any direct or indirect stockholder of Artal is a
party, which are required to be described in the Registration
Statements or the Prospectus or to be filed as exhibits thereto that
are not so described or filed.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between Artal and any person
that would give rise to a valid claim against Artal or any Underwriter
for a brokerage commission, finder's fee or other like payment in
connection with this offering.
(c) Each Non-Controlling Selling Stockholder severally and not jointly
represents and warrants to, and agrees with, the several Underwriters that:
(i) Such Non-Controlling Selling Stockholder is validly
existing and, to the extent such concept exists in the
relevant jurisdiction, in good standing under the laws of the
jurisdiction of its incorporation or organization, as applicable.
(ii) Upon execution and delivery of the this Agreement by one
of the Attorneys (as defined in the Power of Attorney) on behalf of
such Non-Controlling Selling Stockholder, this Agreement will have been
duly authorized, executed and, to the extent such concept exists in the
relevant jurisdiction, delivered by such Non-Controlling Selling
Stockholder.
(iii) The execution and delivery by such Non-Controlling
Selling Stockholder of, and the performance by such Non-Controlling
Selling Stockholder of its obligations under, this Agreement will not
contravene any provision of applicable law, or the organization
documents of such Non Controlling Selling Stockholder or any agreement
or other instrument binding upon such Non Controlling Selling
Stockholder or any of its assets or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over such
Non-Controlling Selling Stockholder or any of its assets, except where
such contravention would not individually or in the aggregate
materially adversely affect the ability of such Non-Controlling Selling
Stockholder to consummate the transactions contemplated hereby, and
no consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required to be obtained or
made by such Non-Controlling Selling Stockholder for the performance by
such Non-Controlling Selling Stockholder of its obligations under this
Agreement, except (A) such as have been obtained or made and (B) such
as may be required under state securities laws and (C) such as may be
required by the securities laws of any jurisdiction outside the United
States of America.
(iv) Such Non-Controlling Selling Stockholder has, and on each
Closing Date hereinafter mentioned will have, full right, power and
authority to enter into this Agreement and to sell, assign, transfer
and deliver the Offered Securities to be delivered by such
Non-Controlling Selling Stockholder on such Closing Date hereunder; and
upon the delivery of and payment for the Offered Securities on each
Closing Date hereunder the several Underwriters will acquire a security
entitlement with respect to the Offered Securities to be delivered by
such Non-Controlling Selling Stockholder on such Closing Date and no
action based on an adverse claim may be asserted against the
Underwriters with respect to such Offered Securities.
(v) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the Rules and Regulations and did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed or will conform, in all material respects to the requirements
of the Act and the Rules and Regulations and did not contain, or will
not contain, any untrue statement of a material fact and did not omit,
or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(C) on the date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration Statement, if
any, is prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration
Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
contains, or will contain, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus or any preliminary prospectus or any amendment or supplement
thereto, in light of the circumstances under which they were made) not
misleading. If the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will contain any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectus or any preliminary prospectus or any amendment or
supplement thereto, in light of the circumstances under which they were
made) not misleading, and no Additional Registration Statement has been
or will be filed. The two preceding sentences apply only to the extent
that any statements in or omissions from a Registration Statement or
the Prospectus are based on written information furnished to the
Company by such Non-Controlling Selling Stockholder specifically for
use therein.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Non-Controlling
Selling Stockholder and any person that would give rise to a valid
claim against such Non-Controlling Selling Stockholder or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $o per share, that number of Firm Securities (rounded up or
down, as determined by CSFBC in its discretion, in order to avoid fractions)
obtained by multiplying the number of Firm Securities set forth opposite the
name of such Selling Stockholder in Schedule A hereto, in each case by a
fraction the numerator of which is the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule B hereto and the denominator
of which is the total number of Firm Securities.
The Selling Stockholders will deliver or shall cause to be delivered
the Firm Securities to the Representatives for the accounts of the Underwriters,
against payment of the purchase price in Federal (same day) funds by wire
transfer to an account at a bank acceptable to CSFBC drawn to the order of each
of the Selling Stockholders at the office of Cravath, Swaine & Xxxxx, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, XX 00000, at 10 a.m., New York time, on [ ], or at such other
time not later than seven full business days thereafter as CSFBC and the Selling
Stockholders determine, such time being herein referred to as the "FIRST CLOSING
DATE". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Firm Securities sold pursuant to
the offering. The certificates for the Firm Securities so to be delivered will
be in the form of one or more global securities, in such denominations and
registered in such names as CSFBC requests and will be made available for
checking at the office of Cravath, Swaine & Xxxxx at least 24 hours prior to the
First Closing Date.
In addition, upon written notice from CSFBC given to the Selling
Stockholders from time to time not more than 30 days subsequent to the date
of the Prospectus, the Underwriters may purchase all or less than all of the
Optional Securities at the purchase price per Security to be paid for the
Firm Securities. Each Optional Selling Stockholder agrees, severally and not
jointly, to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities
specified in such notice by a fraction the numerator of which is the number
of shares set forth opposite the name of such Optional Selling Stockholder in
Schedule A hereto under the caption "Number of Optional Securities to be
Sold" and the denominator of which is the total number of Optional Securities
(subject to adjustment by CSFBC to eliminate fractions). Such Optional
Securities shall be purchased from each Optional Selling Stockholder for the
account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by CSFBC to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional Securities shall
be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised not more than twice and to
the extent not previously exercised may be surrendered and terminated at any
time upon notice by CSFBC to the Optional Selling Stockholders.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "OPTIONAL CLOSING DATE", which may
be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "CLOSING DATE"), shall be
determined by CSFBC but shall be not earlier than two full business days and
not later than five full business days after written notice of election to
purchase Optional Securities is given. The Optional Selling Stockholders will
deliver or shall cause to be delivered the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the
accounts of the several Underwriters, against payment of the purchase price
therefor in Federal (same day) funds by official bank check or checks or wire
transfer to an account at a bank acceptable to CSFBC drawn to the order of
each of the Selling Stockholders at the office of Cravath, Swaine & Xxxxx.
The certificates for the Optional Securities being purchased on each Optional
Closing Date will be in the form of one or more global securities, in such
denominations and registered in such names as CSFBC requests upon reasonable
notice prior to such Optional Closing Date and will be made available for
checking at the office of Cravath, Swaine & Xxxxx at a reasonable time in
advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. (a)
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(i) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, which consent shall not be unreasonably withheld,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a portion
of the Offered Securities under the Act but the Effective Time thereof
has not occurred as of such execution and delivery, the Company will
file the additional registration statement or, if filed, will file a
posteffective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 p.m., New York time,
on the date of this Agreement or, if earlier, on or prior to the time
the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CSFBC.
(ii) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplement
without CSFBC's consent, which consent shall not be unreasonably
withheld; and the Company will also advise CSFBC promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplement of a Registration Statement or the Prospectus
and of the institution by the Commission of any stop order proceedings
in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(iii) If, at any time when a prospectus relating to the
offered securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Act, the Company will promptly notify CSFBC of such event and will
promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither CSFBC's
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 6.
(iv) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY, DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Representatives copies of
each Registration Statement (three of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC reasonably
requests. The Prospectus shall be so furnished on or prior to 3:00
p.m., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Company and the Selling
Stockholders will pay the expenses of printing and distributing to the
Underwriters all such documents.
(vi) The Company will use its reasonable efforts to arrange
for the qualification of the Offered Securities for sale under the laws
of such jurisdictions as CSFBC designates and will continue such
qualifications in effect so long as required for the distribution,
provided that the Company will not be required to qualify to do
business in any jurisdiction where it is not now qualified or take any
action which would subject it or to a general or unlimited service of
process in any jurisdiction where it is not now subject.
(vii) During the period of 3 years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request; except, in the
case of (ii), insofar as providing such information to CSFBC would
violate Regulation FD under the Exchange Act.
(viii) For a period of 180 days after the date of the initial
public offering of the Offered Securities (THE "LOCK-UP PERIOD"), the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares
of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC,
except (A) issuances of Securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date hereof, (B)
grants of employee stock options pursuant to the terms of a plan in
effect on the date hereof , (C) issuances of Securities pursuant to the
exercise of such options or issuances of Securities pursuant to the
Company's dividend reinvestment plan, (D) issuances of Securities
pursuant to the Company's employee benefit plans which are described in
the Prospectus or the Company's dividend reinvestment plan, if any; (E)
the filing of a registration statement on Form S-8 or a resale shelf
registration statement relating to such grants, issuances, exercises or
conversions; or (F) issuances in connection with the merger with or
acquisition of another corporation or entity or the acquisition of the
assets or properties of any such corporation or entity and the related
entry into a merger or acquisition agreement with respect to such
merger or acquisition; provided that any party acquiring Securities
from the Company under the provisions of subsection (F) herein agrees
in writing not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any such Securities of the Company
or securities convertible into or exchangeable or exercisable for any
shares of Securities, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such
other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of CSFBC. Notwithstanding the
foregoing, each such party may transfer Securities to an affiliate or
family member, heir or trust, provided that the transferee agrees to be
bound in writing by the provisions of this Section.
(ix) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and the Selling Stockholders, as the case
may be, under this Agreement, for any filing fees and other expenses
(including reasonable fees and disbursements of counsel to the
Underwriters) incurred in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates pursuant to Section 5(a)(vi) and the printing of memoranda
relating thereto, for any fees incident to listing the Offered
Securities on the New York Stock Exchange, for the filing fee incident
to the review by the National Association of Securities Dealers, Inc.
of the Offered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, for any transfer taxes on the
sale by the Selling Stockholders of the Offered Securities to the
Underwriters and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters. Except as otherwise provided
in this Section 5(a)(ix) and Section 9, the Underwriters shall pay
their own costs and expenses in connection with the transactions
contemplated hereby, including, without limitation, the fees and
expenses of their counsel and the expenses of advertising the offering
of the Offered Securities made by the Underwriters.
(b)(i) Each Selling Stockholder agrees with the several
Underwriters that, during the Lock-up Period, not to offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any
shares of Securities, enter into a transaction which would have the
same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of
ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such
other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of CSFBC. Notwithstanding the
foregoing, each Selling Stockholder may transfer Securities to an
affiliate or family member, heir or trust, provided that the transferee
agrees to be bound in writing by the provisions of this Section 5(b).
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and each Selling Stockholder herein, to
the accuracy of the statements of Company officers made in any certificates
pursuant to the provisions hereof, to the performance by the Company and each
Selling Stockholder of their obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, shall be on
or prior to the date of this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the registration statement to be filed shortly prior to such
Effective Time), of PricewaterhouseCoopers LLP, confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and substantially in the form of
Exhibit A hereto.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 p.m., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFBC. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 p.m., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of each Selling Stockholder, the Company or the
Representatives, shall be threatened by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken as a whole
which, in the judgment of a majority in interest of the Underwriters including
the Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating of any
debt securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of Hunton & Xxxxxxxx, special Virginia counsel for the Company, in
the form attached hereto as Exhibit B.
(e) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Company and special New York counsel to
Artal, in the form attached hereto as Exhibit C.
(f) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxxxx X. Xxxxxxx, counsel to the Company, in the form attached
hereto as Exhibit D:
(g) The Representatives shall have received an opinion, dated such
Closing Date, of Xxxxxx & Xxxxxxxxx, Luxembourg counsel for Artal, in the form
attached hereto as Exhibit E.
(h) The Representatives shall have received an opinion, dated such
Closing Date, of [ ], Monaco counsel for Longisland International Limited,
in the form attached hereto as Exhibit F.
(i) The Representatives shall have received an opinion, dated such
Closing Date, of [Xxxxxxxxx Xxxxxxx] , New York counsel for Longisland
International Limited, in the form attached hereto as Exhibit G.
(j) The Representatives shall have received an opinion, dated such
Closing Date, of [ ] , Georgia counsel for Scotiabanc, Inc., in the form
attached hereto as Exhibit H.
(k) The Representatives shall have received an opinion, dated such
Closing Date, of [Xxxxxxxxx Xxxxxxx], New York counsel for Scotiabanc, Inc., in
the form attached hereto as Exhibit I.
(l) The Representatives shall have received an opinion, dated such
Closing Date, of [Xxxxxxxxx Xxxxxxx], counsel for Merchant Capital, Inc., in
the form attached hereto as Exhibit J.
(m) The Representatives shall have received an opinion, dated such
Closing Date, of [Xxxxxxxxx, Xxxxxxx], New York counsel for Xxxxxxx and Xxxxxxx
Xxxx, in the form attached hereto as Exhibit K.
(n) The Representatives shall have received from Cravath, Swaine &
Xxxxx, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the validity of
the Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the Representatives may
require, and each of the Selling Stockholders and the Company shall have
furnished to such counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters. In rendering such opinion,
Cravath, Swaine & Xxxxx may rely as to the incorporation of the Company and all
other matters governed by Virginia law upon the opinion of Hunton & Xxxxxxxx
referred to above.
(o) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to their knowledge
after reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct; the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been issued and
no proceedings for that purpose have been instituted or are contemplated by the
Commission; the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to
Rule 462(b), including payment of the applicable filing fee in accordance with
Rule 111 (a) or (b) under the Act, prior to the time the Prospectus was printed
and distributed to any Underwriter; and, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as described in such
certificate.
(p) The Representatives shall have received a letter, dated such
Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to in
such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(q) On or prior to the date of this Agreement, the Representatives
shall have received a letter, substantially in the form of Exhibit L hereto and
addressed to the Representatives, from each of the executive officers and
directors of the Company.
(r) Each Selling Shareholder shall deliver to the Representatives a
properly completed and executed United States Treasury Form W-8 or W-9 (or other
applicable form of statement specified by Treasury Department regulations in
lieu thereof).
Each Selling Stockholder and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement or any amendment or supplement thereto, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus or any preliminary prospectus or any amendment or supplement
thereto, in light of the circumstances under which they were made), not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in subsection (c) below; and provided, further, that WITH
RESPECT TO ANY UNTRUE STATEMENT OR OMISSION OF MATERIAL FACT MADE IN ANY
PRELIMINARY PROSPECTUS, THE INDEMNITY AGREEMENT CONTAINED IN THIS SECTION
7(a) SHALL NOT INURE TO THE BENEFIT OF ANY UNDERWRITER FROM WHOM THE PERSON
ASSERTING ANY SUCH LOSS, CLAIM, DAMAGE OR LIABILITY PURCHASED THE OFFERED
SECURITIES CONCERNED, TO THE EXTENT THAT ANY SUCH LOSS, CLAIM, DAMAGE OR
LIABILITY OF SUCH UNDERWRITER OCCURS UNDER THE CIRCUMSTANCE WHERE IT SHALL
HAVE BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION THAT (W) THE
COMPANY HAD PREVIOUSLY FURNISHED COPIES OF THE PROSPECTUS TO THE
REPRESENTATIVES, (X) DELIVERY OF THE PROSPECTUS WAS REQUIRED BY THE ACT TO BE
MADE TO SUCH PERSON, (Y) THE UNTRUE STATEMENT OR OMISSION OF A MATERIAL FACT
CONTAINED IN THE PRELIMINARY PROSPECTUS WAS CORRECTED IN THE PROSPECTUS AND
(Z) THERE WAS NOT SENT OR GIVEN TO SUCH PERSON, AT OR PRIOR TO THE WRITTEN
CONFIRMATION OF THE SALE OF SUCH SECURITIES TO SUCH PERSON, A COPY OF THE
PROSPECTUS.
(b) Each Selling Stockholder will severally and not jointly indemnify
and hold harmless each Underwriter, its partners, directors and officers
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement or
any amendment or supplement thereto, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus or any preliminary prospectus or any amendment or
supplement thereto, in light of the circumstances under which they were made)
not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information about such Selling Stockholder (or any direct or indirect
stockholders of such Selling Stockholder) furnished to the Company by such
Selling Stockholder specifically for use therein, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Stockholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by an Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided, further, that
WITH RESPECT TO ANY UNTRUE STATEMENT OR OMISSION OF MATERIAL FACT MADE IN ANY
PRELIMINARY PROSPECTUS, THE INDEMNITY AGREEMENT CONTAINED IN THIS SECTION 7(b)
SHALL NOT INURE TO THE BENEFIT OF ANY UNDERWRITER FROM WHOM THE PERSON ASSERTING
ANY SUCH LOSS, CLAIM, DAMAGE OR LIABILITY PURCHASED THE OFFERED SECURITIES
CONCERNED, TO THE EXTENT THAT ANY SUCH LOSS, CLAIM, DAMAGE OR LIABILITY OF SUCH
UNDERWRITER OCCURS UNDER THE CIRCUMSTANCE WHERE IT SHALL HAVE BEEN DETERMINED BY
A COURT OF COMPETENT JURISDICTION THAT (W) THE COMPANY HAD PREVIOUSLY FURNISHED
COPIES OF THE PROSPECTUS TO THE REPRESENTATIVES, (X) DELIVERY OF THE PROSPECTUS
WAS REQUIRED BY THE ACT TO BE MADE TO SUCH PERSON, (Y) THE UNTRUE STATEMENT OR
OMISSION OF A MATERIAL FACT CONTAINED IN THE PRELIMINARY PROSPECTUS WAS
CORRECTED IN THE PROSPECTUS AND (Z) THERE WAS NOT SENT OR GIVEN TO SUCH PERSON,
AT OR PRIOR TO THE WRITTEN CONFIRMATION OF THE SALE OF SUCH SECURITIES TO SUCH
PERSON, A COPY OF THE PROSPECTUS; AND PROVIDED, FURTHER, THAT THE LIABILITY
UNDER THIS SUBSECTION OF EACH SELLING STOCKHOLDER SHALL BE LIMITED TO AN AMOUNT
EQUAL TO THE AGGREGATE GROSS PROCEEDS NET OF UNDERWRITING DISCOUNTS AND
COMMISSIONS BUT BEFORE DEDUCTING EXPENSES TO SUCH SELLING STOCKHOLDER FROM THE
SALE OF SECURITIES SOLD BY SUCH SELLING STOCKHOLDER HEREUNDER.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act,
and each of the Selling Stockholders, its directors and officers and each
person, if any, who controls such Selling Stockholder within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities to
which the Company or each of the Selling Stockholders may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement or any amendment or supplement
thereto, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Prospectus or any preliminary prospectus or any amendment or supplement
thereto, in light of the circumstances under which they were made), not
misleading,, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and each Selling Stockholder in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: [(i)
the concession and reallowance figures appearing in the fourth paragraph
under the caption "Underwriting"; (ii) the information regarding sales to
discretionary accounts contained in paragraph six under the caption
"Underwriting"; (ii) the information regarding stabilizing transactions in
the thirteenth paragraph under the caption "Underwriting"; (iii) the
information regarding material relationships furnished on behalf of CSFBC
[and insert names of other underwriters with material relationships] in the
sixteenth, seventeenth and eighteenth paragraphs under the caption
"Underwriting"; and (iv) the information contained in the fourteenth,
fifteenth and nineteenth paragraphs under the caption "Underwriting".](01)
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(1) To be updated when "Underwriting" section is finalized.
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, (i) without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened action 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 (A) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (B) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party or (ii) be liable for any settlement of any
such action effected without its written consent (which shall not be
unreasonably withheld).
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Selling Stockholders on
the one hand or the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement, to each person, if any, who controls
the Company within the meaning of the Act, to each Selling Stockholder and to
each person, if any, who controls any Selling Stockholder within the meaning of
the Act.
(g) Notwithstanding any other provision of this Section 7, the
aggregate liability of each of the Selling Stockholders under this Section 7
shall be limited to the aggregate gross proceeds net of underwriting discounts
and commissions but before deducting expenses received by each such Selling
Stockholder from the offering of Offered Securities under this Agreement.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Selling Stockholders for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC and the Selling Stockholders for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Stockholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company, the Selling Stockholders, and the Underwriters
pursuant to Section 7 shall remain in effect, and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Company will reimburse the Underwriters for all substantiated
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 000 Xxxxxxxxx Xxxx Xxxx, Xxxxxxxx, XX 00000-0000, Attention:
General Counsel, or, if sent to Artal,
will be mailed, delivered or telegraphed and confirmed to Artal Luxembourg S.A.,
at 000, Xxxxx-Xxx, X-0000 Xxxxxxxxxx, Xxxxx-Xxxxx of Luxembourg with a copy to
The Invus Group Ltd., 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, X.X. 10022,
Attention: Xxxxxxx Xxxxxxx, or if sent to the Non-Controlling Selling
Stockholders, will be mailed, delivered or telegraphed and confirmed to it at
the address listed underneath such Non-Controlling Selling Stockholder's name on
Schedule A hereto; provided, however, that any notice to an Underwriter pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company and the Selling Stockholders hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. Artal
irrevocably appoints Xxxxx Xxx Xxxx, Northwestern School of Law, Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as its authorized agent upon which process may
be served in any such suit or proceeding, and agrees that service of process
upon such agent, and written notice of said service to Artal by the person
serving the same to the address provided in Section 10, shall be deemed in every
respect effective service of process upon Artal in any such suit or proceeding.
Artal further agrees to take any and all action as may be necessary to maintain
such designation and appointment of such agent in full force and effect for a
period of seven years from the date of this Agreement.
The obligation of Artal in respect of any sum due to any Underwriter
shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by
such Underwriter of any sum adjudged to be so due in such other currency, on
which (and only to the extent that) such Underwriter may in accordance with
normal banking procedures purchase United States dollars with such other
currency; if the United States dollars so purchased are less than the sum
originally due to such Underwriter hereunder, Artal agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss. If the United States dollars so purchased are greater than
the sum originally due to such Underwriter hereunder, such Underwriter agrees to
pay to Artal an amount equal to the excess of the dollars so purchased over the
sum originally due to such Underwriter hereunder.
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
Artal Luxembourg S.A.
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BY [ ], ON BEHALF OF THE NON-CONTROLLING
SELLING STOCKHOLDERS
Weight Watchers International, Inc.
By
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx & Co.
Acting on behalf of themselves and as the Representatives of the
several Underwriters.
By Credit Suisse First Boston Corporation
By
