EXHIBIT 1.2
1,062,523 Shares
XXXXXX XXXXX CORP.
Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
------------------------------------
June __, 1997
XXXXX XXXXXX INC.
XXXXXXX XXXXX INTERNATIONAL
PAINEWEBBER INTERNATIONAL
As Lead Managers for the Several Managers
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxx Xxxxx Corp., a Pennsylvania corporation (the "Company"),
proposes to issue and sell an aggregate of 1,020,000 shares of its common stock,
par value $.01 per share, and the persons named in Schedule I hereto (the
"Selling Shareholders") propose to sell an aggregate of 42,523 shares of common
stock of the Company (together with the 1,020,000 shares of common stock to be
issued and sold by the Company, the "Shares") to the several Underwriters named
in Schedule II hereto (the "Managers") for whom Xxxxx Xxxxxx Inc., Xxxxxxx Xxxxx
International and PaineWebber International are acting as representatives (the
"Lead Managers"). The Company and the Selling Shareholders are hereinafter
sometimes referred to as the "Sellers." The Company's common stock, par value
$.01 per share, including the Shares and the U.S. Shares (as defined herein), is
hereinafter referred to as the "Common Stock."
It is understood that the Company and the Selling Shareholders are
concurrently entering into a U.S. Underwriting Agreement, dated the date hereof
(the "U.S. Underwriting Agreement"), providing for the sale of 4,250,091 shares
of Common Stock (the "Firm U.S. Shares"), of which 4,080,000 shares will be sold
by the Company and 170,091 will be sold by the Selling Shareholders (plus an
option granted by certain of the Selling Shareholders and the Company to
purchase up to an additional 796,892 shares of Common Stock (the "Additional
U.S. Shares") solely for the purpose of covering over-allotments) through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters"), for whom Xxxxx Xxxxxx Inc., Xxxxxxx Xxxxx & Co. and
PaineWebber Incorporated are acting as representatives (the "Representatives").
All shares of Common Stock proposed to be offered to the U.S. Underwriters
pursuant to the U.S. Underwriting Agreement, including the Firm U.S. Shares and
the Additional U.S. Shares, are herein called the "U.S. Shares"; the U.S. Shares
and the Shares, collectively, are herein called the "Underwritten Shares."
The Company and the Selling Shareholders also understand that the Lead
Managers and the Representatives have entered into an agreement (the "Agreement
Between U.S. Underwriters and Managers") contemplating the coordination of
certain transactions between the Managers and the U.S. Underwriters and that,
pursuant thereto and subject to the conditions set forth therein, the Managers
may purchase from the U.S. Underwriters a portion of the U.S. Shares or sell to
the U.S. Underwriters a portion of the Shares. The Company and the Selling
Shareholders understand that any such purchases and sales between the Managers
and the U.S. Underwriters shall be governed by the Agreement Between U.S.
Underwriters and Managers and shall not be governed by the terms of this
Agreement or the U.S. Underwriting Agreement.
The Company and the Selling Shareholders wish to confirm as follows
their respective agreements with you and the other several Managers on whose
behalf you are acting, in connection with the several purchases of the Shares by
the Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1, including prospectuses subject to
completion, relating to the Underwritten Shares. The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective, or, if the registration statement became effective prior to the
execution of this Agreement, as supplemented or amended prior to the execution
of this Agreement. If it is contemplated, at the time this Agreement is
executed, that a post-effective amendment to the registration statement will be
filed and must be declared effective before the offering of the Shares may
commence, the term "Registration Statement" as used in this Agreement means the
registration statement as amended by said post-effective amendment. If an
abbreviated registration statement is prepared and filed with the Commission in
accordance with Rule 462(b) under the Act ("an Abbreviated Registration
Statement"), the term "Registration Statement" as used in this Agreement
includes the Abbreviated Registration Statement. The term "Prospectuses" as
used in this
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Agreement means the prospectuses in the forms included in the Registration
Statement, or, if the prospectuses included in the Registration Statement omit
information in reliance on Rule 430A under the Act and such information is
included in prospectuses filed with the Commission pursuant to Rule 424(b) under
the Act, the term "Prospectuses" as used in this Agreement means the
prospectuses in the forms included in the Registration Statement as supplemented
by the addition of the Rule 430A information contained in the prospectuses filed
with the Commission pursuant to Rule 424(b). The term "Prepricing Prospectuses"
as used in this Agreement means the prospectuses subject to completion in the
forms included in the Registration Statement at the time of the initial filing
of the Registration Statement with the Commission, and as such prospectuses
shall have been amended from time to time prior to the date of the Prospectuses.
It is understood that two forms of Prepricing Prospectus and two forms
of Prospectus are to be used in connection with the offering and sale of the
Underwritten Shares: a Prepricing Prospectus and a Prospectus relating to the
U.S. Shares that are to be offered and sold in the United States (as defined
herein) or Canada (as defined herein) or to U.S. or Canadian Persons (the "U.S.
Prepricing Prospectus" and the "U.S. Prospectus," respectively), and a
Prepricing Prospectus and a Prospectus relating to the Shares which are to be
offered and sold outside the United States or Canada to persons other than U.S.
or Canadian Persons (the "International Prepricing Prospectus" and the
"International Prospectus," respectively). The U.S. Prospectus and the
International Prospectus are herein collectively called the "Prospectuses," and
the U.S. Prepricing Prospectus and the International Prepricing Prospectus are
herein called the "Prepricing Prospectuses." For purposes of this Agreement:
"Rules and Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable; "U.S. or Canadian Person" means any
resident or national of the United States or Canada, any corporation,
partnership or other entity created or organized in or under the laws of the
United States or Canada or any estate or trust the income of which is subject to
United States or Canadian income taxation regardless of the source of its income
(other than the foreign branch of any U.S. or Canadian Person), and includes any
United States or Canadian branch of a person other than a U.S. or Canadian
Person; "United States" means the United States of America (including the states
thereof and the District of Columbia) and its territories, its possessions and
other areas subject to its jurisdiction; and "Canada" means Canada and its
territories, its possessions and other areas subject to its jurisdiction.
2. Agreements to Sell and Purchase. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein and to
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such adjustments as you may determine to avoid fractional shares, the Company
hereby agrees to issue and sell to each Manager and each Manager agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$______ per share (the "purchase price per share"), the number of Shares that
bears the same proportion to the aggregate number of Shares to be issued and
sold by the Company as the number of Shares set forth opposite the name of such
Manager in Schedule II hereto (or such number of Shares increased as set forth
in Section 12 hereof) bears to the aggregate number of Shares to be sold by the
Company and the Selling Shareholders.
Upon the basis of the representations, warranties and agreements contained
herein and subject to all the terms and conditions set forth herein and to such
adjustments as you may determine to avoid fractional shares, each Selling
Shareholder agrees to sell to each Manager and each Manager agrees, severally
and not jointly, to purchase from each Selling Shareholder, at the purchase
price per share, the number of Shares that bears the same proportion to the
number of Shares set forth opposite the name of such Selling Shareholder in
Schedule I hereto as the number of Shares set forth opposite the name of such
Manager in Schedule II hereto (or such number of Shares increased as set forth
in Section 12 hereof) bears to the aggregate number of Shares to be sold by the
Company and the Selling Shareholders.
Certificates in transferable form for the Shares that each of the Selling
Shareholders agrees to sell pursuant to this Agreement have been placed in
custody with State Street Bank and Trust Company (the "Custodian") for delivery
under this Agreement pursuant to a Custody Agreement and Power of Attorney (the
"Custody Agreement") executed by each of the Selling Shareholders appointing
J. Xxxxx Xxxxxx and Xxxxxxx X. Xxxxxxx, as agents and attorneys-in-fact (the
"Attorneys-in-Fact"). Each Selling Shareholder agrees that (i) the Shares
represented by the certificates held in custody pursuant to the Custody
Agreement are subject to the interests of the Managers, the Company and each
other Selling Shareholder, (ii) the arrangements made by the Selling
Shareholders for such custody are, except as specifically provided in the
Custody Agreement, irrevocable, and (iii) the obligations of the Selling
Shareholders hereunder and under the Custody Agreement shall not be terminated
by any act of such Selling Shareholder or by operation of law, whether by the
death or incapacity of any Selling Shareholder or the occurrence of any other
event or, if the Selling Shareholder is not a natural person, upon any
dissolution, winding up, distribution of assets or other event affecting the
legal existence of such Selling Shareholder. If any Selling Shareholder shall
die or be incapacitated or if any other event shall occur before the delivery of
the Shares hereunder, or if the Selling Shareholder is not a natural person,
shall dissolve, wind up, distribute assets or if any other event affecting the
legal existence of such Selling Shareholder shall
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occur before the delivery of the Shares hereunder, certificates for the Shares
of such Selling Shareholder shall be delivered to the Underwriters by the
Attorneys-in-Fact in accordance with the terms and conditions of this Agreement
and the Custody Agreement as if such death or incapacity, dissolution, winding
up or distribution of assets or other event had not occurred, regardless of
whether or not the Attorneys-in-Fact or any Manager shall have received notice
of such death, incapacity, dissolution, winding up or distribution of assets or
other event. Each Attorney-in-Fact is authorized, on behalf of each of the
Selling Shareholders, to execute this Agreement and any other documents
necessary or desirable in connection with the sale of the Shares to be sold
hereunder by such Selling Shareholder, to make delivery of the certificates for
such Shares, to receive the proceeds of the sale of such Shares, to give
receipts for such proceeds, to pay therefrom any expenses to be borne by such
Selling Shareholder in connection with the sale and public offering of such
Shares, to distribute the balance thereof to such Selling Shareholder, and to
take such other action as may be necessary or desirable in connection with the
transactions contemplated by this Agreement. Each Attorney-in-Fact agrees to
perform his duties under the Custody Agreement.
Each Manager represents, warrants, covenants and agrees that, except as
contemplated under Section 2 of the Agreement Between U.S. Underwriters and
Managers dated the date hereof, (i) it is not purchasing any Shares for the
account of any U.S. or Canadian Person, (ii) it has not offered or sold, and
will not offer, sell, resell or deliver, directly or indirectly, any Shares or
distribute any Prospectus in the United States or Canada or to any U.S. or
Canadian Person, and (iii) any offer of Shares will be made only pursuant to an
exemption from the requirement to file a prospectus in, or in compliance with
the laws of, the relevant jurisdiction in which such offer is made.
3. Terms of Public Offering. The Sellers have been advised by you that
the Managers propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the International Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the Managers
of and payment for the Shares shall be made at the office of Xxxxx Xxxxxx Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, at 10:00 A.M., New York City time,
on ___________, 1997 (the "Closing Date"). The place of closing for the Shares
and the Closing Date may be varied by agreement among you, the Company and the
Attorneys-in-Fact.
Certificates for the Shares to be purchased hereunder shall be registered
in such names and in such denominations as you shall request by written notice,
it being understood that a facsimile
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transmission shall be deemed written notice, prior to 9:30 A.M., New York City
time, on the second business day preceding the Closing Date. Such certificates
shall be made available to you in New York City for inspection and packaging not
later than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date. The certificates and stock powers evidencing the Shares to be
purchased hereunder shall be delivered to you on the Closing Date against
payment of the purchase price therefor in immediately available funds as
directed by the Company or the Attorneys-in-Fact, as applicable.
5. Agreements of the Company. The Company agrees with the several
Managers as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement, any Prepricing
Prospectuses or the Prospectuses or for additional information; (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
prospects, properties, net worth or results of operations, or of the happening
of any event, including the filing of any information, documents or reports
pursuant to the Exchange Act, that makes any statement of a material fact made
in the Registration Statement or the Prospectuses (as then amended or
supplemented) untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectuses (as then amended or
supplemented) in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectuses (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
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(c) The Company will furnish to you, without charge, three signed copies
of the Registration Statement as originally filed with the Commission and of
each amendment thereto, including financial statements and all exhibits to the
Registration Statement and will also furnish to you, without charge, such number
of conformed copies of the Registration Statement as originally filed and of
each amendment thereto, but without exhibits, as you may reasonably request.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectuses of which you
shall not previously have been advised or to which you shall reasonably object
in writing after being so advised or (ii) so long as, in the written opinion of
counsel for the Managers (a copy of which shall be delivered to the Company), a
prospectus is required to be delivered in connection with sales by any Manager
or dealer, file any information, documents or reports pursuant to the Exchange
Act, without delivering a copy of such information, documents or reports to you,
as Lead Managers for the Managers, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company has
delivered or will deliver to you, without charge, in such quantities as you have
reasonably requested or may hereafter reasonably request, copies of each form of
the International Prepricing Prospectus. The Company consents to the use, in
accordance with the provisions of the Act and with the securities laws of the
jurisdictions in which the Shares are offered by the several Managers and by
dealers, prior to the date of the International Prospectus, of each
International Prepricing Prospectus so furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as possible
and thereafter from time to time for such period as in the written opinion of
counsel for the Managers an International Prospectus is required by the Act to
be delivered in connection with sales by any Manager or dealer, the Company will
expeditiously deliver to each Manager and each dealer, without charge, as many
copies of the International Prospectus (and of any amendment or supplement
thereto) as you may reasonably request for a period of nine months after the
date of this Agreement; provided, however, that if a request for copies of the
Prospectuses is made by any Manager or dealer after such nine-month period, the
costs associated with the preparing and filing of any post-effective amendment
to the Registration Statement or any amendment or supplement to the Prospectuses
and delivery of the Prospectuses (and of any amendment or supplement thereto)
shall be borne by such Manager or dealer. The Company consents to the use of
the International Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities laws of the
jurisdictions in which the Shares are offered by the several Managers and by all
dealers to whom Shares
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may be sold, both in connection with the offering and sale of the Shares and for
such period of time thereafter as the International Prospectus is required by
the Act to be delivered in connection with sales by any Manager or dealer. If
during such period of time any event shall occur that in the judgment of the
Company or in the written opinion of counsel for the Managers is required to be
set forth in the International Prospectus (as then amended or supplemented) or
should be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
is necessary to supplement or amend the International Prospectus in order to
comply with the Act or any other law, the Company will make every reasonable
effort to prepare and, subject to the provisions of paragraph (d) above and this
paragraph (f), file with the Commission an appropriate supplement or amendment
thereto, and will expeditiously furnish to the Managers and dealers a reasonable
number of copies thereof. Each Manager agrees that after receipt of any
supplement or amendment to the Prospectus, it will not deliver the Prospectus
other than as so supplemented or amended. In the event that the Company and
you, as Lead Managers for the several Managers, agree that the International
Prospectus should be amended or supplemented, the Company, if reasonably
requested by you, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement.
(g) The Company will cooperate with you and with counsel for the Managers
in connection with the registration or qualification of the Shares for offering
and sale by the several Managers and by dealers under the securities laws of
such jurisdictions as you may reasonably designate and will file such consents
to service of process or other documents necessary or appropriate in order to
effect such registration or qualification; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to taxation or
service of process in suits, other than those arising out of the offering or
sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a
consolidated earnings statement, which need not be audited, covering a twelve-
month period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as reasonably
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company will furnish to
you (i) as soon as available, a copy of each report of the Company mailed to
stockholders or filed with the Commission or the New York Stock Exchange, and
(ii) from time to
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time such other information concerning the Company as you may reasonably
request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating this
Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Managers because of any failure or refusal on the
part of the Company or any of the Selling Shareholders to comply, in any
material respect, with the terms or fulfill, in any material respect, any of the
conditions of this Agreement, the Company agrees to reimburse the Lead Managers
for all reasonable out-of-pocket expenses (including reasonable fees and
expenses of counsel for the Managers) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the Shares to
be sold by it hereunder substantially in accordance with the description set
forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will make every
reasonable effort to timely file the Prospectuses pursuant to Rule 424(b) under
the Act and will advise you of the time and manner of such filing.
(m) For a period of 180 days after the date hereof (the "Lock-up Period"),
the Company will not, without the prior written consent of Xxxxx Xxxxxx Inc.,
offer, sell, contract to sell or otherwise dispose of any Common Stock (or any
securities convertible into or exercisable or exchangeable for Common Stock) or
grant any options or warrants to purchase Common Stock that are exercisable
during the Lock-up Period, except for (i) sales to the Managers pursuant to this
Agreement and the U.S. Underwriters pursuant to the U.S. Underwriting Agreement,
(ii) the issuance of shares upon exercise of outstanding options and (iii) the
issuance of shares in connection with acquisitions, provided that the recipients
of such shares agree not to sell the shares during the Lock-up Period.
(n) The Company has furnished or will furnish to you "lock-up" letters, in
form and substance satisfactory to you, signed by each of its current executive
officers and directors and will make every reasonable effort to furnish to you
"lock-up" letters signed by each of its shareholders designated by you.
(o) Except as stated in this Agreement and in the U.S. Underwriting
Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has
not taken, nor will it take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the
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price of the Common Stock to facilitate the sale or resale of the Shares.
(p) The Company will use its best efforts to have the Common Stock
listed, subject to notice of issuance, on the New York Stock Exchange
concurrently with the effectiveness of the Registration Statement.
6. Agreements of the Selling Shareholders. Each of the Selling
Shareholders agrees with the several Managers as follows:
(a) Such Selling Shareholder will cooperate to the extent reasonably
necessary to cause the Registration Statement or any post-effective amendment
thereto to become effective at the earliest possible time.
(b) Such Selling Shareholder will pay all Federal and other taxes, if
any, on the transfer or sale of such Shares that are sold by such Selling
Shareholder to the Managers.
(c) Such Selling Shareholder will do or perform all things reasonably
required to be done or performed by such Selling Shareholder prior to the
Closing Date to satisfy all conditions precedent with respect to such Selling
Shareholder to the delivery of the Shares pursuant to this Agreement.
(d) Such Selling Shareholder has executed or will execute a "lock-up"
letter as provided in Section 5(n) above and will not sell, contract to sell or
otherwise dispose of any Common Stock, except as provided therein or for the
sale of Shares to the Underwriters pursuant to this Agreement, prior to the
expiration of the Lock-Up Period, without the prior written consent of Xxxxx
Xxxxxx Inc.
(e) Except as stated in this Agreement and the U.S. Underwriting
Agreement and in the Prepricing Prospectuses and the Prospectuses, such Selling
Shareholder has not taken, nor will it take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock to facilitate the
sale or resale of the Shares.
(f) To the extent that any statements or omissions made in the
Registration Statement or the Prospectuses (as amended or supplemented, if
amended or supplemented) specifically refer to the information regarding a
Selling Shareholder under the caption "Principal and Selling Shareholders," such
Selling Shareholder will advise you promptly upon becoming aware, and if
requested by you, will confirm such advice in writing, within the period of time
referred to in Section 5(f) hereof, of any change in such information that comes
to the attention of such Selling Shareholder that makes any statement made in
the Registration Statement or the
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Prospectuses (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectuses (as then amended or supplemented) in order to state a material fact
required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectuses (as then amended or
supplemented) to comply with the Act or any other law.
7. Representations and Warranties of the Company. The Company represents
and warrants to each Manager that:
(a) Each International Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act; except that
this representation and warranty does not apply to statements in or omissions
from such International Prepricing Prospectus (or any amendment or supplement
thereto) made in reliance upon and in conformity with information relating to
any Selling Shareholder or to any U.S. Underwriter or Manager furnished to the
Company in writing by a Selling Shareholder or a Manager through the Lead
Managers or by a U.S. Underwriter through the Representatives expressly for use
therein. The Commission has not issued any order preventing or suspending the
use of any Prepricing Prospectus.
(b) The Registration Statement in the form in which it became or
becomes effective, including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule 430A(b),
and also in such form as it may be when any post-effective amendment thereto
shall become effective and the Prospectuses and any supplement or amendment
thereto when filed with the Commission under Rule 424(b) under the Act, complied
or will comply in all material respects with the provisions of the Act and will
not at any such times 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; except that this representation and warranty
does not apply to statements in or omissions from the Registration Statement or
the Prospectuses made in reliance upon and in conformity with information
relating to any Selling Shareholder or to any U.S. Underwriter or Manager
furnished to the Company in writing by or on behalf of a Selling Shareholder or
a Manager through the Lead Managers or by a U.S. Underwriter through the
Representatives expressly for use therein.
(c) All the outstanding shares of Common Stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights; the Shares to be issued and sold
by the Company have been duly authorized and, when issued and delivered to the
Managers
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against payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive or similar
rights; and the capital stock of the Company conforms to the description thereof
in the Registration Statement and the Prospectuses under the caption
"Description of Capital Stock."
(d) The Company is a corporation duly organized and validly subsisting
under the laws of the Commonwealth of Pennsylvania, with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectuses.
Within fourteen days of the Closing Date the Company will be duly registered and
qualified to conduct its business and in good standing in each jurisdiction
where the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify does not (1) have a material adverse effect on the condition (financial
or other), business, properties, shareholders' equity or results of operations
of the Company and the Subsidiaries (as hereinafter defined), taken as a whole,
(2) materially adversely affect the issuance, validity or enforceability of the
Shares or (3) materially adversely affect the consummation of any of the
transactions contemplated by this Agreement (each of (1), (2) and (3) above, a
"Material Adverse Effect").
(e) All the Company's subsidiaries (as defined in Rule 1-02(x) of
Regulation S-X and as required to be identified by Item 601(b)(21) of Regulation
S-K) are listed in an exhibit to the Registration Statement (collectively, the
"Subsidiaries"). Each Subsidiary is either (i) a corporation duly organized,
validly existing and in good standing in the jurisdiction of its incorporation
or (ii) a partnership duly organized and validly existing under the applicable
laws of the Commonwealth of Pennsylvania. Each Subsidiary has the requisite
corporate or partnership, as the case may be, power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectuses, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify does not individually or in the aggregate have a Material
Adverse Effect. All the outstanding shares of capital stock of each of the
corporate Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, and are 99% or greater owned by the Company directly, or
indirectly through one or more of the other Subsidiaries, free and clear of any
lien, adverse claim, security interest, equity or other encumbrance, other than
the pledge of such shares pursuant to the Pledge and Intercreditor Agreement, as
amended, and the Credit Facility (as defined in the Registration Statement).
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(f) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against the Company or any of its
Subsidiaries which are materially adverse to the Company and its Subsidiaries,
taken as a whole, or to which the Company or any of the Subsidiaries, or to
which any of their respective properties is subject, which are material to the
Company and its Subsidiaries, taken as a whole, that are required to be
described in the Registration Statement or the Prospectuses but are not
described as required.
(g) Neither the Company nor any of the Subsidiaries is (i) in violation of
its certificate or articles of incorporation or by-laws, or other organizational
documents, (ii) in violation of any statute, law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any ruling, judgment, injunction, order or decree of any
court or governmental agency or body having jurisdiction over the Company or any
of the Subsidiaries (except where any such violation or violations in the
aggregate would not have a Material Adverse Effect), or (iii) in default in any
material respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any material agreement, indenture, lease or other instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound (except where any such default or
defaults in the aggregate would not have a Material Adverse Effect).
(h) Other than as will be obtained, waived or otherwise corrected prior to
the Closing Date, neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement or the U.S. Underwriting Agreement by
the Company nor the consummation by the Company of the transactions contemplated
hereby and thereby (i) requires any consent, approval, authorization or other
order of or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official (except as
may be required for the registration of the Shares under the Act and the
Exchange Act (which has been effected) and such as may be required under state
securities or foreign laws) or conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the certificate or articles of
incorporation or bylaws, or other organizational documents, of the Company or
any of the Subsidiaries or (ii) conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, any agreement, indenture,
lease or other instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties may be
bound, or violates or will violate any statute, law, regulation or filing
(except as may be required for the registration of the Shares under the Act and
the Exchange Act (which has been effected) and such as may be required under
state securities or foreign laws) or judgment, injunction, order or
13
decree applicable to the Company or any of the Subsidiaries or any of their
respective properties, or will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject other than security interests
granted pursuant to the Credit Agreement, the 1996 Notes and the 1997 Notes (as
defined in the Registration Statement).
(i) The accountants, Xxxxxx Xxxxxxxx LLP and Deloitte & Touche LLP, who
have certified or shall certify the financial statements filed or to be filed as
part of the Registration Statement or the Prospectuses (or any amendment or
supplement thereto) are independent public accountants as required by the Act.
(j) The historical consolidated financial statements of the Company,
together with related schedules and notes forming part of the Registration
Statement and the Prospectuses (and any amendment or supplement thereto), and,
to the knowledge of the Company, the historical financial statements of Security
Archives, Inc. and Records Management Services, Inc., together with related
schedules and notes forming part of the Registration Statement and the
Prospectuses (and any amendment or supplement thereto), comply with the
requirements of the Act and present fairly the consolidated financial position,
results of operations, cash flows and changes in financial position of the
Company and the Subsidiaries and Security Archives, Inc. and Records Management
Services, Inc., as the case may be, on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which they
apply; the statements and related schedules and notes of the Company and, to the
knowledge of the Company, the statements and related schedules and notes of
Security Archives, Inc. and Records Management Services, Inc., have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; the pro forma financial information, and the related notes thereto,
included in the Registration Statement and the Prospectuses (and any amendment
or supplement thereto) have been prepared in accordance with the applicable
requirements of the Act and the assumptions used in preparing such information
are reasonable; and the other historical and pro forma financial and statistical
information and data set forth in the Registration Statement and the
Prospectuses (and any amendment or supplement thereto) are accurately presented
in all material respects and prepared on a basis consistent with the books and
records of the Company and its Subsidiaries.
(k) The execution and delivery of, and the performance by the Company of
its obligations under, each of this Agreement and the U.S. Underwriting
Agreement have been duly and validly authorized by the Company, and each of this
Agreement and the U.S.
14
Underwriting Agreement has been duly executed and delivered by the Company and
constitutes the valid and legally binding agreement of the Company, enforceable
against the Company in accordance with its terms, except (i) the enforceability
hereof or thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, (ii) the remedy of specific
performance and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which the
proceedings may be brought and (iii) rights to indemnity and contribution
hereunder or thereunder may be limited by federal or state securities laws or
the public policy underlying such laws.
(l) Except as disclosed or contemplated in the Registration Statement and
the Prospectuses (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectuses (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any change in the capital
stock of the Company, or material increase in the short-term debt or long-term
debt, of the Company or any of the Subsidiaries, or any development having or
which may reasonably be expected to result in a Material Adverse Effect.
(m) Each of the Company and the Subsidiaries has good and valid title to
all property (real and personal) described in the Prospectuses as being owned by
it which is material to the business of the Company and its Subsidiaries taken
as a whole, free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement and the
Prospectuses or in a document filed as an exhibit to the Registration Statement
and all the property described in the Prospectuses as being held under lease by
each of the Company and the Subsidiaries which is material to the business of
the Company and its Subsidiaries taken as a whole, is held by it under valid,
subsisting and enforceable leases with only such exceptions as in the aggregate
do not interfere in any material respect with the conduct of the business of the
Company and the Subsidiaries, taken as a whole or the use made or proposed to be
made of such property by the Company or its Subsidiaries.
(n) The Company has not distributed and, prior to the later to occur of
(i) the Closing Date and (ii) completion of the distribution of the Shares, will
not distribute any offering material in connection with the offering and sale of
the Shares other than the Registration Statement, the Prepricing Prospectuses,
the Prospectuses or other materials, if any, permitted by the Act.
15
(o) Except as described in clause (d) above, the Company and each of the
Subsidiaries has such permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("Permits") as are necessary to own its
respective properties and to conduct its business in the manner described in the
Prospectuses, except where the failure to so possess would not, individually or
in the aggregate, have a Material Adverse Effect and subject to such
qualifications as may be set forth in the Prospectuses; the Company and each of
the Subsidiaries has fulfilled and performed all its material obligations with
respect to such Permits and no event has occurred that allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be set forth in the
Prospectuses, except where any such revocation, termination or impairment would
not have a Material Adverse Effect.
(p) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(q) To the Company's knowledge, neither the Company nor any of its
Subsidiaries nor any employee or agent of the Company or any Subsidiary has made
any payment of funds of the Company or any Subsidiary or received or retained
any funds in violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the
Prospectuses.
(r) The Company and, to the Company's knowledge, each of the Subsidiaries
have filed all tax returns required to be filed or obtained extensions therefor,
which returns are true and correct in all material respects, and neither the
Company nor any Subsidiary is in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect thereto, except
where the failure to file such returns or to pay such taxes is not reasonably
likely to have a Material Adverse Effect.
(s) Except as described in the Prospectuses, no holder of any security of
the Company has any right to require registration of shares of Common Stock or
any other security of the Company because of the filing of the Registration
Statement or consummation of the transactions contemplated by this Agreement or
16
the U.S. Underwriting Agreement, or otherwise. Except as described in or
contemplated by the Prospectuses, there are no outstanding options, warrants or
other rights calling for the issuance of, and there are no commitments, plans or
arrangements to issue, any shares of Common Stock of the Company or any security
convertible into or exchangeable or exercisable for Common Stock of the Company.
(t) The Company and the Subsidiaries own or possess all patents,
trademarks, trademark registration, service marks, service xxxx registrations,
trade names, copyrights, licenses, inventions, trade secrets and rights
described in the Prospectuses as being owned by them or any of them or necessary
for the conduct of their respective businesses, except where the lack of such
ownership or possession would not, individually or in the aggregate, have a
Material Adverse Effect, and the Company is not aware of any claim to the
contrary or any challenge by any other person to the rights of the Company and
the Subsidiaries with respect to the foregoing.
(u) The Company is not and, upon sale of the Shares to be issued and sold
in accordance herewith and upon application of the net proceeds to the Company
from such sale as described in the Prospectuses under the caption "Use of
Proceeds," will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(v) The Company and, to the Company's knowledge, each of its Subsidiaries
are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as the Company deems prudent and customary
to cover replacement costs of real and personal property; subject to certain
limitations and deductibles, such policies also cover extraordinary expenses
associated with business interruption and damage or loss from fire, flood or
earthquakes (in certain geographic areas), and losses at the Company's
facilities up to approximately $225 million; neither the Company nor, to the
knowledge of the Company, any such Subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor, to the knowledge of
the Company, any such Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect,
except as described in or contemplated by the Prospectuses.
(w) No Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the Company
any loans or advances to such Subsidiary from the Company or from transferring
any of such Subsidiary's property or assets to the
17
Company or any other Subsidiary of the Company, except as described in or
contemplated by the Prospectuses.
(x) Except for the shares of capital stock or partnership interests of each
of the Subsidiaries owned by the Company and such Subsidiaries, neither the
Company nor any such Subsidiary owns any shares of stock or any other equity
securities of any corporation or has any equity interest in any firm,
partnership, association or other entity, except as described in or contemplated
by the Prospectuses.
(y) There are no labor disputes with the Company's employees or with
employees of the Subsidiaries that exist or, to the Company's knowledge, are
imminent that are reasonably likely to materially adversely affect the Company
and the Subsidiaries taken as a whole, and the Company is not aware of any
existing or imminent labor disturbance by any of its or the Subsidiaries'
principal suppliers, contractors or customers that are reasonably likely to have
a Material Adverse Effect.
(z) With respect to each employee benefit plan, program and arrangement
(including, without limitation, any "employee benefit plan" as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), maintained or contributed to by the Company or the Subsidiaries, or
with respect to which the Company or the Subsidiaries could incur any liability
under ERISA (collectively, the "Benefit Plans"), no event has occurred and there
exists no condition or set of circumstances in connection with which the Company
or the Subsidiaries could be reasonably likely to be subject to any liability
under the terms of such Benefit Plan or applicable law (including, without
limitation, ERISA and the Internal Revenue Code of 1986, as amended (the
"Code")) that could have a Material Adverse Effect.
(aa) The Company and, to the Company's knowledge, the Subsidiaries are (i)
(A) in compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (B) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses, and (C) and are in compliance with all terms and
conditions of any such permit, license or approval, except, in each case, where
such noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a Material Adverse Effect; (ii) except as disclosed in the Registration
Statement or the Prospectuses, there is no civil, criminal or administrative
action, suit, demand, hearing, notice of violation or deficiency, investigation,
proceeding or notice of potential responsibility or liability or
18
demand letter or request for information pending, or to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries under any
Environmental Laws which, if determined adversely to the Company or any such
Subsidiary, would, individually or in the aggregate, be reasonably likely to
result in a Material Adverse Effect. Neither the Company nor, to the Company's
knowledge, any of the Subsidiaries has been named as a "potentially responsible
party" under the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended ("CERCLA").
8. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder represents and warrants to each Manager that:
(a) Such Selling Shareholder now has, and on the Closing Date will
have, valid and marketable title to the Shares to be sold by such Selling
Shareholder, free and clear of any lien, claim, security interest or other
encumbrance, including, without limitation, any restriction on transfer, except
as otherwise described in the Prospectuses.
(b) Such Selling Shareholder now has, and on the Closing Date will
have, full legal right, power and authorization, and any approval required by
law (other than any approval under federal or state securities or foreign laws),
to sell, assign, transfer and deliver such Shares in the manner provided in this
Agreement and the U.S. Underwriting Agreement, and upon delivery of and payment
for such Shares hereunder, the several Managers will acquire valid and
marketable title to such Shares free and clear of any lien, claim, security
interest, or other encumbrance.
(c) This Agreement, the U.S. Underwriting Agreement and the Custody
Agreement have been duly authorized, executed and delivered by or on behalf of
such Selling Shareholder and are the valid and binding agreements of such
Selling Shareholder enforceable against such Selling Shareholder in accordance
with their terms, except that (i) the enforceability hereof or thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, (ii)
the remedy of specific performance and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the court before
which the proceedings may be brought and (iii) rights to indemnity and
contribution hereunder or thereunder may be limited by federal or state
securities laws or the public policy underlying such laws.
(d) Neither the sale of the Shares, the execution, delivery or
performance of this Agreement, the U.S. Underwriting Agreement or the Custody
Agreement by or on behalf of such Selling Shareholder nor the consummation by or
on behalf of such Selling
19
Shareholder of the transactions contemplated hereby and thereby (i) requires any
consent, approval, authorization or other order of, or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except as may be required for the registration of the
Shares under the Act and the Exchange Act and such as may be required under
state securities or foreign laws) or (ii) conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, any agreement,
indenture, lease or other instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder is or may be bound (except any such
agreements or other instruments which will either be terminated or released upon
the Closing hereunder), or violates or will violate any statute, law, regulation
or filing or judgment, injunction, order or decree applicable to such Selling
Shareholder, or will result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of such Selling Shareholder pursuant to
the terms of any agreement or instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder may be bound or to which any of the
property or assets of such Selling Shareholder is subject.
(e) The information pertaining to such Selling Shareholder provided to
the Company for inclusion under the caption "Principal and Selling Shareholders"
in the Prospectuses, does not and will not contain an 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.
(f) The representations and warranties of such Selling Shareholder in
the Custody Agreement are, and on the Closing Date will be, true and correct.
(g) Such Selling Shareholder has not taken, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares, except for the lock-up arrangements referred
to in the Prospectuses.
(h) Such Selling Shareholder has not distributed and, prior to the
later to occur of (i) the Closing Date and (ii) completion of the distribution
of the Shares, will not distribute any offering material in connection with the
offering and sale of the Shares.
9. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each other Manager and each person, if any, who
controls any Manager within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of
20
investigation) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any International Prepricing
Prospectus or in the Registration Statement or the International Prospectus or
in any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to any U.S.
Underwriter or Manager furnished in writing to the Company by or on behalf of
any Manager through you or by or on behalf of any U.S. Underwriter through a
Representative expressly for use in connection therewith; provided, however,
that the indemnification contained in this paragraph (a) with respect to any
International Prepricing Prospectus shall not inure to the benefit of any
Manager (or to the benefit of any person controlling such Manager) on account of
any such loss, claim, damage, liability or expense arising from the sale of the
Shares by such Manager to any person if a copy of the International Prospectus
shall not have been delivered or sent to such person within the time required by
the Act and the regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
such International Prepricing Prospectus was corrected in the International
Prospectus, provided that the Company has delivered the International Prospectus
to the several Managers in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any Manager
or any person controlling any Manager in respect of which indemnity may be
sought against the Company or any Selling Shareholder, such Manager or such
controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses; provided, however, that the
failure so to notify the indemnifying parties shall not relieve the indemnifying
parties from any obligation or liability except to the extent that the
indemnifying parties have been prejudiced materially by such failure. Such
Manager or any such controlling person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Manager or such controlling person unless (i) the indemnifying parties have
agreed in writing to pay such fees and expenses, (ii) the indemnifying parties
have failed to assume the defense and employ counsel, or (iii) the named parties
to any such action, suit or proceeding (including any impleaded
21
parties) include both such Manager or such controlling person and the
indemnifying parties and such Manager or such controlling person shall have been
advised by its counsel in writing that representation of such indemnified party
and any indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the indemnifying party shall not have the
right to assume the defense of such action, suit or proceeding on behalf of such
Manager or such controlling person). It is understood, however, that in the
event that one or more persons seeking indemnity exercises its right to employ
separate counsel pursuant to the preceding sentence, the indemnifying parties
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to one local counsel in each such jurisdiction) at any
time for all such Managers and controlling persons, which firm shall be
designated in writing by Xxxxx Xxxxxx Inc., and that all such fees and expenses
as required to be paid by the indemnifying parties hereunder shall be reimbursed
as they are incurred. The indemnifying parties shall not be liable for any
settlement of any such action, suit or proceeding effected without their written
consent, but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the
indemnifying parties agree to indemnify and hold harmless any Manager, to the
extent provided in the preceding paragraph, and any such controlling person from
and against any loss, claim, damage, liability or expense by reason of such
settlement or judgment.
(c) Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless each of you and each other Manager and each person,
if any, who controls any Manager within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, the Company, its directors, its officers who
sign the Registration Statement, and any person who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act to the
same extent as the foregoing indemnity from the Company to each Manager, but
only with respect to the information furnished in writing by or on behalf of
such Selling Shareholder expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement thereto;
provided, however, the liability of a Selling Shareholder under this paragraph
(c) shall not exceed the proceeds received by such Selling Shareholder from the
sale of such Selling Shareholder's Shares hereunder. If any action, suit or
proceeding shall be brought against any Manager, any such controlling person of
any Manager, the Company, any of its directors any such officer or any such
controlling person of the Company, based on the Registration
22
Statement, the Prospectus or any Prepricing Prospectus or any amendment or
supplement thereto, and in respect of which indemnity may be sought against any
Selling Shareholder pursuant to this paragraph (c), such Selling Shareholder
shall have the rights and duties given to the Company by paragraph (b) above
(except that if the Company shall have assumed the defense thereof such Selling
Shareholder shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Selling Shareholder's expense), and each Manager,
each such controlling person of any Manager, the Company, its directors, any
such officer, and any such controlling person of the Company shall have the
rights and duties given to the Managers by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which any Selling
Shareholder may otherwise have.
(d) Each Manager agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement, any person who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act and the Selling Shareholders, to
the same extent as the foregoing indemnity from the Company and the Selling
Shareholders to each Manager, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon the untrue statement or
alleged untrue statement of a material fact contained in any International
Prepricing Prospectus or in the Registration Statement or the International
Prospectus or in any amendment or supplement thereto, or arise out of or are
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case 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 Manager
through you specifically for use therein. If any action, suit or proceeding
shall be brought against the Company, any of its directors, any such officer,
any such controlling person or any Selling Shareholder based on the Registration
Statement, the International Prospectus or any International Prepricing
Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Manager pursuant to this paragraph (d), such
Manager shall have the rights and duties given to the Company by paragraph (b)
above (except that if the Company or the Selling Shareholders shall have assumed
the defense thereof such Manager shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Manager's expense), and the
Company, its directors, any such officer, any such controlling person, and the
Selling Shareholders shall have the rights and duties given to the Managers by
paragraph (b) above. The foregoing indemnity agreement shall be in addition to
any liability which any Manager may otherwise have.
23
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a), (c) or (d) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the Managers on the
other hand from the offering of the Shares, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders on
the one hand and the Managers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholders on
the one hand and the Managers on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholders bear to the total
underwriting discounts and commissions received by the Managers, in each case as
set forth in the table on the cover page of the International Prospectus;
provided that, in the event that the Managers shall have purchased any
Additional Shares hereunder, any determination of the relative benefits received
by the Company, the Selling Shareholders or the Managers from the offering of
the Shares shall include the net proceeds (before deducting expenses) received
by the Company, and the underwriting discounts and commissions received by the
Managers, from the sale of such Additional Shares, in each case computed on the
basis of the respective amounts set forth in the notes to the table on the cover
page of the International Prospectus. The relative fault of the Company and the
Selling Shareholders on the one hand and the Managers on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Shareholders on the one hand or by the Managers on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The Company, the Selling Shareholders and the Managers agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by a pro rata allocation (even if the Managers were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (e) above.
The amount paid or payable by an indemnified
24
party as a result of the losses, claims, damages, liabilities and expenses
referred to in paragraph (e) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 9, no Manager shall be required to contribute any amount in excess of
the amount by which the total price of the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such Manager
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 9, no Selling Shareholder shall be required to contribute any
amount in excess of the total net proceeds of the Shares sold by such Selling
Shareholder. 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 Managers'
obligations to contribute pursuant to this Section 9 are several in proportion
to the respective numbers of Shares set forth opposite their names in Schedule
II hereto (or such numbers of Shares increased as set forth in Section 12
hereof) and not joint.
(g) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or 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 action, suit or proceeding.
(h) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Shareholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Managers or any
person controlling any Manager, the Company, its directors or officers or the
Selling Shareholders, any director, officer or partner of a Selling Shareholder
or any person controlling the Company or any Selling Shareholder, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. Notwithstanding any other provisions of this
Agreement, if this Agreement terminates prior to the purchase of the Shares by
the Managers, the Company and the Selling Shareholders shall not be liable for
any lost profits. A successor to any Manager or any person controlling any
Manager, or to the Company, its directors or
25
officers, or to a Selling Shareholder, any director, officer or partner of a
Selling Shareholder or any person controlling the Company or any Selling
Shareholder, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in this Section 9.
10. Conditions of Managers' Obligations. The several obligations of the
Managers to purchase the Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Manager, threatened
by the Commission, and any request of the Commission for additional information
(to be included in the Registration Statement or the Prospectuses or otherwise)
shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole not contemplated by the Prospectuses, which in
your reasonable opinion, as Lead Managers of the several Managers, would
materially adversely affect the market for the Shares, or (ii) any event or
development relating to or involving the Company or any officer or director of
the Company or any Selling Shareholder which makes any statement made in the
Prospectuses untrue or which, in the opinion of the Company and its counsel or
the Managers and their counsel, requires the making of any addition to or change
in the Prospectuses in order to state a material fact required by the Act or any
other law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Prospectuses to reflect
such event or development would, in your opinion, as Lead Managers for the
several Managers, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of Cozen
and X'Xxxxxx, counsel for the Company and the Selling Shareholders, dated the
Closing Date and addressed to you, as Lead Managers for the several Managers, to
the effect that:
26
(i) The Company is a corporation duly incorporated and validly
subsisting under the laws of the Commonwealth of Pennsylvania with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectuses, and is in the process of qualifying in the jurisdictions set forth
on Annex A to such opinion;
(ii) Each of the Subsidiaries organized under the laws of the
United States or a state thereof (the "U.S. Subsidiaries") is either (A) a
corporation duly organized and validly existing in good standing under the laws
of the jurisdiction of its organization, or (B) a limited partnership duly
organized under the laws of the Commonwealth of Pennsylvania;
(iii) The authorized and, to such counsel's knowledge,
outstanding capital stock of the Company is as set forth under the caption
"Capitalization" in the Prospectuses; and the authorized capital stock of the
Company conforms in all material respects as to legal matters to the description
thereof contained in the Prospectuses under the caption "Description of Capital
Stock";
(iv) To the knowledge of such counsel, all the shares of
capital stock of the Company outstanding prior to the issuance of the Shares to
be issued and sold by the Company pursuant to the Underwriting Agreements have
been duly authorized and validly issued, and are fully paid and nonassessable;
(v) The Underwritten Shares to be issued and sold to the U.S.
Underwriters and Managers by the Company under the U.S. Underwriting Agreement
and the International Underwriting Agreement have been duly authorized and, when
issued and delivered to the U.S. Underwriters and Managers against payment
therefor in accordance with the terms of the U.S. Underwriting Agreement and the
International Underwriting Agreement, respectively, will be validly issued
(assuming certificates for such Shares have been validly countersigned by the
transfer agent for the Common Stock), fully paid and nonassessable and free of
any (A) statutory preemptive rights or (B) to the knowledge of such counsel,
similar rights that entitle or will entitle any person to acquire any Shares
upon the issuance thereof by the Company;
(vi) The form of certificates for the Shares conforms to the
requirements of the Pennsylvania Business Corporation Law of 1988, as amended;
(vii) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose are pending before
or contemplated
27
by the Commission; and, to such counsel's knowledge, any required filing of the
Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule
424(b);
(viii) The Company has the requisite corporate power and
authority to enter into this Agreement and the U.S. Underwriting Agreement and
to issue, sell and deliver the Underwritten Shares to be sold by it to the U.S.
Underwriters and Managers as provided herein and therein, and each of this
Agreement and the U.S. Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(ix) Neither the Company nor, to the knowledge of such counsel,
any of the U.S. Subsidiaries is (A) in violation of its respective certificate
of incorporation or bylaws or other organizational documents, or (B) to the
knowledge of such counsel in default in the performance of any material
obligation, agreement or condition contained in any bond, debenture, note or
other evidence of indebtedness that is filed as an exhibit to the Registration
Statement, except as may be disclosed in the Prospectuses or where any such
default or defaults in the aggregate would not, singularly or in the aggregate,
have a Material Adverse Effect;
(x) None of the offer, issuance, sale or delivery of the
Underwritten Shares, the execution, delivery or performance by the Company of
this Agreement or the U.S. Underwriting Agreement, compliance by the Company
with all provisions of this Agreement and the U.S. Underwriting Agreement, or
consummation by the Company of the transactions contemplated hereby or by the
U.S. Underwriting Agreement conflicts or will conflict with or constitutes or
will constitute a breach of, or a default under, the certificate of
incorporation or bylaws, or other organizational document, of the Company or any
of the U.S. Subsidiaries or any material agreement, indenture, lease or other
instrument to which the Company is a party or by which any of its properties is
bound that is filed as an exhibit to the Registration Statement, or except as
disclosed in the Registration Statement, will, to such counsel's knowledge,
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the U.S. Subsidiaries under any such
agreement, indenture, lease or other instrument, or, to such counsel's
knowledge, will any such action result in any violation of any existing law or
regulation (assuming compliance with all applicable state securities or Blue Sky
laws and foreign laws), or any ruling, judgment, injunction, order or decree of
any court or governmental entity or instrumentality known to such counsel, and
applicable to the Company, the U.S. Subsidiaries or any of their respective
properties;
(xi) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory
28
body, administrative agency or other governmental body, agency, or official is
required on the part of the Company (except as have been obtained under the Act
or the Exchange Act or such as may be required under state securities or Blue
Sky laws or foreign laws) for the valid issuance and sale of the Shares to the
Managers as contemplated by this Agreement;
(xii) The Registration Statement and the Prospectuses and any
supplements or amendments thereto (except for the financial statements,
schedules and notes thereto and other financial and statistical data included
therein, as to which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the Act;
(xiii) To the knowledge of such counsel, (A) other than as
described or contemplated in the Prospectuses, there are no legal or
governmental proceedings pending or threatened against the Company or any of the
U.S. Subsidiaries or to which the Company, the U.S. Subsidiaries or any of their
respective properties is subject, which are required to be described in the
Registration Statement or Prospectuses (or any amendment or supplement thereto)
and (B) there are no agreements, contracts, indentures, leases or other
instruments relating to the Company or any of the U.S. Subsidiaries of a
character that are required to be described in the Registration Statement or the
Prospectuses (or any amendment or supplement thereto) or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required, as the case may be;
(xiv) The statements in the Registration Statement and
Prospectuses under the caption "Shares Eligible for Future Sale," insofar as
they refer to statements of law or legal conclusions, are accurate in all
material respects;
(xv) Except as described in the Prospectuses, such counsel does
not know of any outstanding option, warrant or other right calling for the
issuance of, and such counsel does not know of any commitment, plan or
arrangement to issue, any share of capital stock of the Company or any security
convertible into or exchangeable or exercisable for capital stock of the
Company; and, except as described in the Prospectuses, such counsel does not
know of any holder of any security of the Company or any other person who has
the right, contractual or otherwise, to cause the Company to sell or otherwise
issue to them, or permit them to underwrite the sale of, any of the Shares or
the right to have any Common Stock or other securities of the Company included
in the Registration Statement or the right, as a result of the filing of the
Registration Statement, to require registration under the Act of Common Stock or
other securities of the Company;
(xvi) The Company is not now and upon the sale of the Shares to
be issued and sold in accordance herewith and upon
29
application of the net proceeds from such sale as described in the Prospectuses
under the caption "Use of Proceeds" will not be an "investment company" within
the meaning of the 1940 Act;
(xvii) Each Selling Shareholder has full legal right, power and
authority, and any approval required by law (except such as may be required
under state or foreign securities or Blue Sky laws or foreign laws), to sell,
assign, transfer and deliver good and valid title to the Shares which such
Selling Shareholder has agreed to sell pursuant to this Agreement and the U.S.
Underwriting Agreement;
(xviii) The execution and delivery of this Agreement and the sale
of the Shares by each Selling Shareholder to the Underwriters, and compliance by
such Selling Shareholder with the terms of this Agreement, including the
delivery to the Underwriters of certificates evidencing such shares and the
execution and delivery to the Underwriters of a stock power in blank, have been
duly authorized by all necessary action on the part of such Selling Shareholder
and, to the knowledge of such counsel, do not, and will not, conflict with, or
result in a breach of any of the terms and provisions of, or constitute a
default under (I) any statute, rule or regulation (assuming compliance with all
applicable state securities and Blue Sky laws or foreign laws) relating to such
Selling Shareholder or its legal status in each case, that in the experience of
such counsel are normally applicable to transactions of the type provided for in
this Agreement, (II) any material judgment, order, rule, injunction or
regulation of any court or governmental agency or body, domestic or foreign,
known to such counsel or (III) any material contract, agreement or other
instrument known to such counsel to which such Selling Shareholder is a party or
by which it or any of its properties are subject;
(xix) Upon delivery of the Shares to be sold by the Selling
Shareholders pursuant to this Agreement and payment therefor as contemplated
herein, the Underwriters will have acquired all rights of the Selling
Shareholder in the Shares free and clear of any security interest, mortgage,
lien, pledge, encumbrance or claim.
In addition, such counsel shall state that although counsel has not
undertaken, except as otherwise indicated in their opinion, to determine
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements in the Registration Statement,
(except to the extent set forth in paragraphs (iii) and (xiv) above) such
counsel has participated in the preparation of the Registration Statement and
the Prospectuses, including general review and discussion of the contents
thereof, and nothing has come to the attention of such counsel that would lead
them to believe that the Registration Statement at the time the Registration
Statement became effective, or the Prospectuses, as of their respective dates
and as of the
30
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated or necessary to make the statements
therein, in the case of the Prospectuses, in the light of the circumstances
under which they were made, not misleading or that any amendment or supplement
to the Prospectuses, as of its respective date, and as of the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated in the Prospectuses or necessary in order to make the
statements therein, in the case of the Prospectuses, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no statement with respect to the financial
statements, financial schedules, pro forma financial statements and the notes
thereto and other financial and statistical data included in the Registration
Statement or the Prospectuses).
In rendering their opinion as aforesaid, counsel may, as to factual
matters, rely, to the extent such counsel deems proper, upon written
certificates or statements of officers of the Company and the Selling
Shareholders. The foregoing opinion may be limited to the federal laws of the
United States of America and the Commonwealth of Pennsylvania, and counsel
rendering the foregoing opinion may rely as to questions of fact upon the
representations of the Selling Shareholders as set forth in this Agreement and
in the Custody Agreement.
(d) You shall have received on the Closing Date opinions of Blake, Xxxxxxx
& Xxxxxxx and/or Xxxxxxx XxXxxxxx Stirling Seals (as appropriate), Canadian
counsel for the Canadian Subsidiary, dated the Closing Date, and addressed to
you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Canadian Subsidiary is a corporation duly organized and
validly existing under the laws of the jurisdiction of its organization with
full corporate power and authority to own, lease, and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectuses (and any amendment or supplement thereto); and all the outstanding
shares of capital stock of the Subsidiary have been duly authorized and validly
issued, are fully paid and nonassessable, and is 99% indirectly owned by the
Company, registered in the name of _____________________.
(ii) The Canadian Subsidiary is not in violation of its certificate
of incorporation or bylaws or other organizational documents.
(iii) Neither the offer, issuance, sale or delivery of the
Underwritten Shares, nor the execution, delivery or performance by the Company
of this Agreement or the U.S. Underwriting Agreement or compliance by the
Company with all provisions of this Agreement and the U.S. Underwriting
Agreement,
31
nor consummation by the Company of the transactions contemplated hereby or by
the U.S. Underwriting Agreement conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, the certificate of
incorporation or bylaws, or other organizational document, of the Canadian
Subsidiary, or to such counsel's knowledge, except as disclosed in the
Registration Statement, will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Canadian Subsidiary
under any material agreement, indenture, lease or other instrument, nor, to such
counsel's knowledge, will any such action result in any violation of any
existing law, regulation, ruling (assuming compliance with all applicable state
securities or Blue Sky laws or foreign laws), or any ruling, judgment,
injunction, order or decree of any court or governmental entity or
instrumentality known to such counsel, and applicable to the Canadian Subsidiary
or any of its respective properties.
(e) You shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Managers, dated the
Closing Date and addressed to you as Lead Managers for the several Managers,
with respect to the matters referred to in clauses (v), (other than subclause
(B) thereof), (vii), (viii), (x) and the paragraph immediately following clause
(xix) of the foregoing paragraph (c) and such other related matters as you may
request.
(f) You shall have received letters addressed to you, as Lead
Managers for the several Managers, and dated the date hereof and the Closing
Date from Xxxxxx Xxxxxxxx LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(g) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any material change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other than
in the ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectuses (or any amendment or Supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectuses
(or any amendment or supplement thereto), except as may otherwise be stated or
contemplated in the Registration Statement and Prospectuses (or any amendment or
supplement thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole; (iv) the Company and the
Subsidiaries shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business),
32
that are material to the Company and the Subsidiaries, taken as a whole, other
than those reflected in the Registration Statement or the Prospectuses (or any
amendment or supplement thereto); and (v) all the representations and warranties
of the Company contained in this Agreement shall be true and correct in all
material respects on and as of the date hereof and on and as of the Closing Date
as if made on and as of the Closing Date, and you shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company (or such other officers as are
acceptable to you), to the effect set forth in this Section 10(g) and in Section
10(h) hereof.
(h) The Company shall not have failed at or prior to the Closing Date
to have performed or complied in all material respects with any of its
agreements herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(i) All the representations and warranties of the Selling
Shareholders contained in this Agreement and in the U.S. Underwriting Agreement
shall be true and correct in all material respects on and as of the date hereof
and on and as of the Closing Date as if made on and as of the Closing Date, and
you shall have received a certificate, dated the Closing Date and signed by or
on behalf of each of the Selling Shareholders to the effect set forth in this
Section 10(i) and in Section 10(j) hereof.
(j) The Selling Shareholders shall not have failed at or prior to the
Closing Date to have performed or complied in all material respects with any of
their agreements contained in this Agreement or in the U.S. Underwriting
Agreement and required to be performed or complied with by them at or prior to
the Closing Date.
(k) The Sellers shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have reasonably requested.
(l) The Shares shall have been listed or approved for listing,
subject to notice of issuance, on the New York Stock Exchange.
(m) The closing under the U.S. Underwriting Agreement shall have
occurred on the Closing Date concurrently with the closing hereunder.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or any
Attorney-in-Fact or any Selling Shareholder and
33
delivered to you, as Lead Managers for the several Managers, or to counsel for
the Managers, shall be deemed a representation and warranty by the Company, the
Selling Shareholders or the particular Selling Shareholder, as the case may be,
to each Manager as to the statements made therein.
11. Expenses. The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by the Company of
its obligations hereunder: (i) the printing (or reproduction) and filing with
the Commission and delivery charges and charges for counting and packaging of
such copies of the Registration Statement, each International Prepricing
Prospectus, the International Prospectus and all amendments or supplements to
any of them, as may be reasonably requested for use in connection with the
offering and sale of the Shares; (ii) the preparation, printing, authentication,
issuance and delivery of certificates for the Shares, including any stamp taxes
in connection with the original issuance and sale of the Shares by the Company;
(iii) the printing (or reproduction) and delivery of this Agreement, the
Agreement Among Managers, the Agreement Between U.S. Underwriters and Managers,
the International Selling Agreement, the Managers' Questionnaire, the
preliminary and supplemental Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the original
issuance and sale of the Shares; (iv) the registration of the Common Stock under
the Exchange Act and the listing of the Shares on the New York Stock Exchange;
(v) the registration or qualification of the Shares for offer and sale under the
securities laws of the several jurisdictions as provided in Section 5(g) hereof
(including the reasonable fees, expenses and disbursements of counsel for the
Underwriters relating to the preparation, printing or reproduction, and delivery
of the preliminary and supplemental Blue Sky Memoranda and such registration and
qualification); (vi) the filing fees in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.; (vii) the
transportation and other expenses incurred by or on behalf of representatives of
the Company in connection with presentations to prospective purchasers of the
Shares; and (viii) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company. Each Selling Shareholder agrees to pay for any transfer taxes on the
sale by such Selling Shareholder of such Selling Shareholder's Shares to the
U.S. Underwriters.
12. Effective Date of Agreement. This Agreement shall become effective:
(i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at
the time this Agreement is executed and delivered, it is necessary for the
registration statement or a post-effective amendment thereto to be declared
effective before the offering of the Shares may commence, when notification of
the effectiveness of the registration statement or such post-effective amendment
has been released by the Commission. Until such time as
34
this Agreement shall have become effective, it may be terminated by the Company,
by notifying you, or by you, as Lead Managers for the several Managers, by
notifying the Company and the Selling Shareholders.
If any one or more of the Managers shall fail or refuse to purchase Shares
which it or they are obligated to purchase hereunder on the Closing Date, and
the aggregate number of Shares which such defaulting Manager or Managers are
obligated but fail or refuse to purchase is not more than one-tenth of the
aggregate number of Shares which the Managers are obligated to purchase on the
Closing Date, each non-defaulting Manager shall be obligated, severally, in the
proportion which the number of Shares set forth opposite its name in Schedule II
hereto bears to the aggregate number of Shares set forth opposite the names of
all non-defaulting Managers or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxx
Xxxxxx Inc., to purchase the Shares which such defaulting Manager or Managers
are obligated, but fail or refuse, to purchase. If any one or more of the
Managers shall fail or refuse to purchase Shares which it or they are obligated
to purchase on the Closing Date and the aggregate number of Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
Shares which the Managers are obligated to purchase on the Closing Date and
arrangements satisfactory to you and the Company for the purchase of such Shares
by one or more non-defaulting Managers or other party or parties approved by you
and the Company are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Manager or
the Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Manager from liability in
respect of any such default of any such Manager under this Agreement. The term
"Manager" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed in Schedule II hereto which, with your approval
and the approval of the Company, purchases Shares which a defaulting Manager is
obligated, but fails or refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Manager to the Company or any Selling Shareholder, by notice to the Company, if
prior to the Closing Date (i) trading in securities generally on the New York
Stock Exchange,
35
American Stock Exchange or the Nasdaq National Market shall have been suspended
or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity, crisis or change in
political, financial or economic conditions, the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable or inadvisable to commence or continue the offering of the Shares
at the offering price to the public set forth on the cover page of the
International Prospectus or to enforce contracts for the resale of the Shares by
the Managers.
Notice of such termination may be given by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
14. Information Furnished by the Managers. The statements set forth in
the last paragraph on the cover page, the stabilization legend on the inside
front cover page, and the statements in the first through third, sixth through
ninth and thirteenth paragraphs under the caption "Underwriting" in any
International Prepricing Prospectus and in the International Prospectus,
constitute the only information furnished by or on behalf of the Managers
through you as such information is referred to in Sections 7(b) and 9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5, 12 and 13
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company or the Selling Shareholders
at the office of the Company at 000 Xxxx Xxxxxx, Xxxx xx Xxxxxxx, XX 00000,
Attention: President; or (ii) if to you, as Lead Managers for the several
Managers, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the several
Managers, the Company, its directors and officers, and the other controlling
persons referred to in Section 9 hereof and the Selling Shareholders and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Manager of any of the Shares
in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in
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counterparts, this Agreement shall not become effective unless at least one
counterpart hereof shall have been executed and delivered on behalf of each
party hereto.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Shareholders and the several Managers.
Very truly yours,
XXXXXX XXXXX CORP.
By
-----------------------
President and Chief
Executive Officer
Each of the Selling Shareholders
named in Schedule I hereto
By
-----------------------
Attorney-in-Fact
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Managers named in Schedule II
hereto.
XXXXX XXXXXX INC.
XXXXXXX XXXXX INTERNATIONAL
PAINEWEBBER INTERNATIONAL
As Lead Managers for the Several Managers
By XXXXX XXXXXX INC.
By
-----------------------------------
Managing Director
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SCHEDULE I
XXXXXX XXXXX CORP.
Number of
Selling Shareholders Shares
-------------------- ------
--------------
Total........
--------------
39
SCHEDULE II
XXXXXX XXXXX CORP.
Number of Number of
Underwriter Shares Underwriter Shares
----------- ------ ----------- ------
Xxxxx Xxxxxx Inc. ...
Xxxxxxx Xxxxx International
PaineWebber International
Total....
==========
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