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STB DRAFT 6/6/97
EXHIBIT 1.2
1,800,000 Shares
XXXX CORPORATION
Common Stock
International Underwriting Agreement
_________________, 1997
Xxxxxx Brothers International (Europe)
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxx Xxxxxxx & Co. International Limited
Salomon Brothers International Limited
J. Xxxxx Xxxxxxxx & Co. Limited
As Lead Managers for each of
the several International Managers
named in Schedule I hereto,
c/x XXXXXX BROTHERS INTERNATIONAL (EUROPE)
Xxx Xxxxxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Dear Sirs:
Xxxxxx Brothers Merchant Banking Portfolio Partnership L.P., Xxxxxx
Brothers Capital Partners II, L.P., Xxxxxx Brothers Offshore Investment
Partnership L.P. and Xxxxxx Brothers Offshore Investment Partnership - Japan
L.P. (each a "Selling Stockholder" and collectively the "Selling Stockholders")
propose to sell to the several International Managers named in Schedule I hereto
(the "International Managers") an aggregate of 1,800,000 shares (the "Firm
Shares") of Common Stock, $.01 par value (the "Common Stock"), of Xxxx
Corporation, a Delaware corporation (the "Company"). In addition, for the sole
purpose of covering over-allotments in connection with the sale of the Firm
Shares, the Selling Stockholders propose to grant to the International Managers
(as defined below) an option to purchase up to an aggregate of 254,854
additional shares (the "Option Shares") of Common Stock. The Firm Shares and
any Option Shares purchased pursuant to this Agreement are herein called the
"Shares".
It is understood that the Company and the Selling Stockholders are
concurrently entering into a U.S. Underwriting Agreement dated the date hereof
(the "U.S. Underwriting Agreement"), providing for the sale by the Company and
the Selling Stockholders of an aggregate of 7,200,000 shares (the "U.S. Firm
Shares") of Common Stock through arrangements with certain underwriters in the
United States and Canada (the "U.S. Underwriters"), for whom
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Xxxxxx Brothers Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
Xxxxxx Xxxxxxx & Co. Incorporated, Salomon Brothers Inc and Xxxxxxxx Xxxxxxxx &
Co. Incorporated are acting as representatives (the "Representatives"). In
addition, for the sole purpose of covering over-allotments in connection with
the sale of the U.S. Firm Shares, the Selling Stockholders propose to grant to
the U.S. Underwriters an option to purchase up to an aggregate of 1,030,000
additional shares (the "U.S. Option Shares") of Common Stock. The U.S. Firm
Shares and the U.S. Option Shares which may be offered by the U.S.
Underwriters pursuant to the U.S. Underwriting Agreement are herein called the
"U.S. Shares"; the U.S. Shares and the Shares, collectively, are herein called
the "Underwritten Shares". As specified in Section 3, the respective closings
under this Agreement and the U.S. Underwriting Agreement are hereby expressly
made conditional on one another.
The Company and the Selling Stockholders also understand that the U.S.
Underwriters and the International Managers have entered into an agreement (the
"Agreement Between U.S. Underwriters and International Managers") contemplating
the coordination of certain transactions between the U.S. Underwriters and the
International Managers and that, pursuant thereto and subject to the conditions
set forth therein, the U.S. Underwriters may purchase from the International
Managers a portion of the Shares or sell to the International Managers a portion
of the U.S. Shares. The Company and the Selling Stockholders understand that
any such purchases and sales between the U.S. Underwriters and the International
Managers shall be governed by the Agreement Between U.S. Underwriters and
International Managers and shall not be governed by the terms of this Agreement
or the U.S. Underwriting Agreement.
This is to confirm the agreement concerning the purchase of the Shares
from the Selling Stockholders by the International Managers and certain related
agreements among the Company, the Selling Stockholders and the International
Managers.
The following terms as used in this Agreement shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended.
"Business Day" shall mean any day on which the New York Stock Exchange
is open for trading.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean the date of the Effective Time.
"Effective Time" shall mean the date and the time as of which the
Registration Statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission (or, if the Company will next file
with the Commission an amendment to the Registration Statement as contemplated
by clause (i) of the first paragraph of Section 1, the date and time as of which
the Registration Statement shall be declared effective).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
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"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"International Preliminary Prospectus" shall mean a Preliminary
Prospectus relating to the Shares which are to be offered and sold outside the
United States or Canada to persons other than U.S. Persons.
"International Prospectus" shall mean 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. Persons.
"Preliminary Prospectuses" shall mean each prospectus included in the
Registration Statement, or any amendment thereof, before the Effective Date,
each prospectus filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) and each prospectus included in the
Registration Statement at the Effective Time that omits Rule 430A Information.
"Prospectuses" shall mean the forms of prospectuses relating to the
Underwritten Shares, as first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, the forms of final
prospectuses included in the Registration Statement at the Effective Time.
"Registration Statement" shall mean the registration statement
referred to above, as amended at the Effective Time, including any documents
incorporated by reference therein and all exhibits thereto. Such term shall
include any Rule 430A Information deemed to be included therein at the Effective
Time as provided by Rule 430A.
"Rule 424" and "Rule 430A" shall refer to such rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Underwritten Shares and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rules and Regulations" shall mean the rules and regulations in effect
at any relevant time adopted by the Commission under the Act or the Exchange
Act.
"Subsidiary" and "Significant Subsidiary" shall have the meanings
assigned in Rule 405 of the Rules and Regulations. As used in reference to the
Company, "subsidiary" shall mean a Subsidiary of the Company.
"U.S. Person" shall mean any resident or national of the United States
or Canada and its provinces, any corporation, partnership or other entity
created or organized in or under the laws of the United States or Canada and its
provinces 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. Person), and includes any United States or
Canadian branch of a person other than a U.S. Person; and "United States" shall
mean the United
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States of America (including the states thereof and the District of Columbia)
and its territories, its possessions and other areas subject to its
jurisdiction.
"U.S. Prospectus" shall mean a Prospectus relating to the U.S. Shares
which are to be offered and sold in the United States or Canada or to U.S.
Persons.
Reference made herein to any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any documents incorporated by
reference therein (including all exhibits thereto) pursuant to Item 12 of Form
S-3 under the Securities Act, as of the date of such Preliminary Prospectus or
Prospectus and any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
document filed under the Exchange Act after the date of such Preliminary
Prospectus or the Prospectus and incorporated by reference in such Preliminary
Prospectus or Prospectus.
1. Representations and Warranties of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-_______) with
respect to the Underwritten Shares has been prepared by the Company in
conformity with the requirements of the Act and the Rules and Regulations
thereunder and has been filed with the Commission under the Act. Copies of such
registration statement as amended to date have been delivered by the Company to
you as the Lead Managers of the International Managers. The Company will next
file with the Commission one of the following: (i) prior to effectiveness of
such registration statement, a further amendment to such registration statement,
including forms of final prospectuses or (ii) after effectiveness of such
registration statement, final prospectuses in accordance with Rules 430A and
424(b)(1) or (4).
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectuses are first filed (if required) in accordance with Rule
424(b) and on each Closing Date (as defined in Section 4) the Prospectuses (and
any supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Rules and Regulations. The Company
has included in the Registration Statement, as amended at the Effective Date,
all information required by the Act and the Rules and Regulations thereunder to
be included in the Prospectuses with respect to the Underwritten Shares and the
offering thereof, and the Prospectuses, when filed with the Commission, did or
will contain all Rule 430A Information, together with all other such required
information, with respect to the Underwritten Shares and the offering thereof
and, except to the extent the Lead Managers shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectuses) as the Company
has advised you, prior to the Execution Time, will be included or made therein.
The Commission has not issued any stop order preventing or suspending the use of
any Preliminary Prospectus or the Prospectuses or the effectiveness of the
Registration Statement, and no proceeding for any such purpose has been
initiated or threatened by the Commission.
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(c) On the Effective Date, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the Prospectuses
did not or will not, and on the date of any filing pursuant to Rule 424(b) and
on each Closing Date, the Prospectuses (together with any supplements thereto)
will not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that the
Company makes no representation or warranty as to information contained in or
omitted from the Registration Statement or the Prospectuses in reliance upon,
and in conformity with, written information furnished to the Company by you or
any Selling Stockholder, or by any International Manager through you,
specifically for inclusion therein.
(d) The documents incorporated by reference in the Prospectuses, when
they were filed with the Commission (or upon amendment thereof by other
documents included in such incorporated documents), conformed in all material
respects to the requirements of the Act or Exchange Act, as applicable, and the
Rules and Regulations thereunder, and such documents were timely filed as
required thereby and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectuses, when such documents become
effective or are filed with Commission will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the Rules
and Regulations thereunder, and will be timely filed as required thereby and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(e) Neither the Commission nor, to the knowledge of the Company, the
"blue sky" or securities authority of any jurisdiction has issued an order (a
"Stop Order") suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectuses, the
Prospectuses, the Registration Statement, or any amendment or supplement
thereto, refusing to permit the effectiveness of the Registration Statement, or
suspending the registration or qualification of the Underwritten Shares, nor, to
the knowledge of the Company, has any of such authorities instituted or
threatened to institute any proceeding with respect to a Stop Order in any
jurisdiction in which the Underwritten Shares are sold.
(f) Each of the Company and its subsidiaries is a corporation duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation, with full power and authority, and all necessary
consents, authorizations, approvals, orders, licenses, certificates, and permits
of and from, all Federal, state, local, and other governmental and foreign
authorities, to own, lease, license, and use its properties and assets and to
carry on its business in the manner described in the Prospectuses except where
such failure will not have a material adverse effect on the Company and its
subsidiaries taken as a whole. Except as described in the Registration
Statement and Prospectuses, each such consent, authorization, approval, order,
license, certificate and permit is valid and in full force and effect, and there
is no proceeding pending, or to the knowledge of the Company, threatened, which
might lead to the revocation, termination, suspension or nonrenewal of any such
consent, authorization, approval, order,
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license, certificate or permit. Each of the Company and its subsidiaries is
duly qualified to do business and is in good standing in every jurisdiction in
which its ownership, leasing, licensing, or use of property and assets or the
conduct of its business makes such qualification necessary, except in those
jurisdictions where failure to qualify or to be in good standing would not have
a material adverse effect on the Company and its subsidiaries taken as a whole.
(g) The Company has an authorized capitalization as set forth in the
Registration Statement. Except as described or otherwise disclosed in the
Prospectuses, each outstanding share of Common Stock and each outstanding share
of capital stock of the Company's subsidiaries is duly authorized, validly
issued, fully paid and nonassessable, has not been issued and is not owned or
held in violation of any preemptive rights of shareholders, and, in the case of
the Company's subsidiaries, is owned of record and beneficially by the Company
(except for directors' qualifying shares), or its subsidiaries free and clear of
all liens, security interests, pledges, charges, encumbrances, shareholders'
agreements and voting trusts. The Company's capital stock conform to the
statements in relation thereto contained in the Prospectuses. There is no
commitment, plan or arrangement to issue, and no outstanding option, warrant or
other right calling for the issuance of, any share of capital stock of the
Company or the Company's subsidiaries to any person or any security or other
instrument which by its terms is convertible into, exercisable for, or
exchangeable for capital stock of the Company or the Company's subsidiaries,
except as described or otherwise disclosed in the Prospectuses. There is
outstanding no security or other instrument which by its terms is convertible
into or exchangeable for capital stock of the Company or any of their
subsidiaries, except as described or otherwise disclosed in the Prospectuses.
(h) Other than as described in the Prospectuses, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act, other than rights that have been duly and validly
waived.
(i) Neither the Company nor any of its subsidiaries has sustained,
since the date of the Company's Report on Form 10-K for the year ended December
31, 1996, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectuses; and, since such date,
there has not been any change in the capital stock of the Company (other than in
respect of shares of Common Stock issued upon the exercise of management
options) or any material change in long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Prospectuses.
(j) Neither the Company nor any of its subsidiaries is now or is
expected by the Company or its subsidiaries to be in violation or breach of, or
in default with respect to, any
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provision of any contract, agreement, instrument, lease, or license to which
the Company or any of its subsidiaries is a party, the effect of which would
materially adversely affect the financial condition, results of operations,
business, assets, liabilities or prospects of the Company and its subsidiaries
taken as a whole. Each such material contract, agreement, instrument, lease or
license (i) is in full force, (ii) assuming the correctness of (iii) below, is
the legal, valid, and binding obligation of the Company or its subsidiaries and
is enforceable as to the Company or its subsidiaries, as the case may be, in
accordance with its terms, except that enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws
affecting the enforcement of creditors' rights generally and by general equity
principles and (iii) to the Company's knowledge, is the legal, valid and
binding obligation of the other parties thereto and is enforceable as to each
of them in accordance with its terms, except that enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles. Each of the Company and its subsidiaries enjoys
peaceful and undisturbed possession under all leases and licenses of real
property under which it is operating except where such failure could not
reasonably be expected to have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(k) The Underwritten Shares have been duly and validly authorized and
issued and are fully paid and nonassessable; the Underwritten Shares conform to
the description of the Common Stock in the Prospectuses; and the Underwritten
Shares have been listed on the New York Stock Exchange.
(l) The execution, delivery and performance of this Agreement and the
U.S. Underwriting Agreement and the consummation of the transactions
contemplated hereby and thereby, the issuance and sale of the Shares, will not
conflict with or result in a breach or violation in any material respect of any
of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such actions result
in any violation in any material respect of the provisions of the Certificate of
Incorporation or the By-laws, in each case as amended, of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and no consent, approval,
authorization, order, registration, filing or qualification of or with any court
or governmental agency or body is required for the issue and sale of the
Underwritten Shares or the consummation of the other transactions contemplated
by this Agreement or the U.S. Underwriting Agreement, except the registration
under the Act of the Underwritten Shares, and such consents, approvals,
authorizations, registrations, filings or qualifications as may be required
under state securities or Blue Sky laws or as may be required by the laws of any
country other than the United States in connection with the purchase and
distribution of the Underwritten Shares by the U.S. Underwriters and the
International Managers.
(m) The Company will not, during the period of 90 days after the date
hereof except pursuant to this Agreement or the U.S. Underwriting Agreement or
as contemplated by
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the Prospectuses, offer, sell or otherwise dispose of any Common Stock or
securities convertible into or exchangeable or exercisable for such Common
Stock of the Company, directly or indirectly, without the prior written consent
of Xxxxxx Brothers International (Europe); provided, however, that (i) the
Company may issue and sell Common Stock pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment plan of the Company in
effect at the Effective Time, (ii) the Company may issue Common Stock issuable
upon the conversion of securities or the exercise of warrants outstanding at
the Effective Time and (iii) the Company may issue Common Stock as
consideration in connection with the acquisition by the Company of new
businesses.
(n) Except as may otherwise be disclosed in or contemplated by the
Prospectuses, since the date as of which information is given in the
Prospectuses, (i) the Company has not declared or paid any dividend or made any
distribution on its capital stock, (ii) the Company has not issued or granted
any securities and (iii) neither the Company nor any of its subsidiaries have
entered into any transaction or incurred any liability or obligation, contingent
or otherwise, other than in the ordinary course of business.
(o) Any contract, agreement, instrument, lease or license required to
be described in the Registration Statement or the Prospectuses has been properly
described therein, and any contract, agreement, instrument, lease or license
required to be filed as an exhibit to the Registration Statement has been filed
with the Commission as an exhibit to or has been incorporated as an exhibit by
reference in the Registration Statement.
(p) There is no labor strike or work stoppage or lockout actually
pending, imminent or threatened against the Company or any of its subsidiaries
which would have a material adverse effect on the consolidated financial
condition, results of operations, business, assets, liabilities or prospects of
the Company and its subsidiaries taken as a whole.
(q) Except as set forth in the Registration Statement and the
Prospectuses and except as would not materially and adversely affect the
consolidated financial position, shareholders' equity, results of operations,
business or prospects of the Company and its subsidiaries taken as a whole, (i)
the Company is not in violation of any applicable Federal, state, local or
foreign environmental law or any applicable order of any governmental authority
with respect thereto; (ii) the Company is not in violation of or subject to any
existing, or pending or, to the Company's knowledge, threatened action, suit,
investigation, inquiry or proceeding by any governmental authority nor is the
Company subject to any remedial obligations under any applicable Federal, state,
local or foreign environmental law; (iii) the Company and its subsidiaries are
in compliance with all permits or similar authorizations, if any, required to be
obtained or filed in connection with their operations including, without
limitation, emissions, discharges, treatment, storage, disposal or release of a
Hazardous Material into the environment except where any noncompliance could not
reasonably be expected to have a material adverse effect on the operations of
the Company and its subsidiaries; and (iv) to the knowledge of the Company and
its subsidiaries, after appropriate inquiry, no Hazardous Materials have been
disposed of or released by the Company or its subsidiaries on or to the
Company's or its
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subsidiaries' property, except in accordance with applicable environmental
laws. The term "Hazardous Material" means any oil (including petroleum
products, crude oil and any fraction thereof), chemical, contaminant,
pollutant, solid or hazardous waste, or Hazardous Substance (as defined in
Section 101(14) of the Comprehensive Environmental Response, Compensation and
Liability Act and regulations thereunder), that is regulated as toxic or
hazardous to human health or the environment under any Federal, state, local or
foreign environmental law.
(r) Except with respect to taxable periods commencing before the
taxable period ended June 30, 1991, as to which no representation is made, the
Company has filed all Federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof and has paid all taxes
shown to be due with respect to the taxable periods covered by such returns, and
no tax deficiency has been assessed, nor does the Company have any knowledge of
any tax deficiency which, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be
expected to have a material adverse effect on the consolidated financial
condition, results of operations, business, assets, liabilities or prospects of
the Company and its subsidiaries taken as a whole.
(s) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(t) The financial statements (including the related notes and
supporting schedules) incorporated by reference in the Prospectus present fairly
the financial condition and results of operations of the entities purported to
be shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with applicable generally accepted accounting principles
applied on a consistent basis throughout the periods involved.
(u) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company, and Price Waterhouse LLP, who have certified certain
financial statements of Masland (as defined in the Prospectuses), and whose
reports are incorporated by reference in the Prospectus, are independent public
accountants as required by the Act and the Rules and Regulations.
(v) There is no litigation or governmental proceeding pending or, to
the knowledge of the Company or any of its subsidiaries, threatened against the
Company or any of its subsidiaries which could reasonably be expected to result
in any material adverse change in the consolidated financial condition, results
of operations, business, assets, liabilities or prospects of the Company or any
of its subsidiaries or which affects the transactions contemplated by this
Agreement and the Prospectuses or which is required to be disclosed in the
Registration Statement and the Prospectuses, which is not disclosed and
correctly summarized therein.
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(w) The filing of the Registration Statement has been duly authorized
by the Company.
(x) Each of the Company and its subsidiaries holds good and
marketable title to, or valid and enforceable leasehold interests in, all items
of real and personal property which are material to the business of the Company
and its subsidiaries taken as a whole, free and clear of any lien, claim,
encumbrance, preemptive rights or any other claim of any other third party which
could reasonably be expected to materially interfere with the conduct of the
business of the Company and its subsidiaries taken as a whole. The Company and
its subsidiaries are in material compliance with all applicable laws, rules and
regulations, except where such failure to comply would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(y) The Company has not taken, and agrees that it will not take,
directly or indirectly, any action that could reasonably be expected to cause or
result in stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Shares.
2. Representations, Warranties and Agreements of the Selling
Stockholders. Each Selling Stockholder, severally and not jointly, represents,
warrants and agrees as to itself that:
(a) Such Selling Stockholder has, and immediately prior to the First
Closing Date (as defined in Section 4) such Selling Stockholder will have, good
and valid title to the Underwritten Shares to be sold by such Selling
Stockholder hereunder as set forth in Schedule II hereto and under the U.S.
Underwriting Agreement on such date, free and clear of all liens, encumbrances,
equities or claims; and upon delivery of such Underwritten Shares and payment
therefor pursuant hereto and thereto, good and valid title to such Underwritten
Shares, free and clear of all liens, encumbrances, equities or claims, will pass
to the several U.S. Underwriters and the International Managers.
(b) Such Selling Stockholder has duly and irrevocably executed and
delivered powers of attorney (each, a "Power of Attorney") appointing one or
more other persons as attorneys-in-fact, with full power of substitution, and
with full authority (exercisable by any one or more of them) to execute and
deliver this Agreement and the U.S. Underwriting Agreement and to take such
other action as may be necessary or desirable to carry out the provisions hereof
or thereof on behalf of such Selling Stockholder.
(c) Such Selling Stockholder has full right, power and authority to
enter into and perform under this Agreement, the U.S. Underwriting Agreement and
the Power of Attorney; the execution, delivery and performance of this
Agreement, the U.S. Underwriting Agreement and the Power of Attorney by such
Selling Stockholder and the consummation by such Selling Stockholder of the
transactions contemplated hereby and thereby will not conflict with or result in
a breach or violation in any material respect of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling Stockholder is
a party or by which the Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is subject, nor will such actions
result in any violation in any material respect of the provisions of the
Certificate of Incorporation or the By-laws or comparable instruments, as
applicable, or any partnership
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agreement of such Selling Stockholder or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
such Selling Stockholder or the property or assets of such Selling Stockholder;
and no consent, approval, authorization, order, filing or registration of or
with, any court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the U.S. Underwriting Agreement or
the Power of Attorney by such Selling Stockholder and the consummation by such
Selling Stockholder of the transactions contemplated hereby and thereby, except
the registration under the Act of the Underwritten Shares, filings pursuant to
Sections 13 and 16 of the Exchange Act, and such consents, approvals,
authorizations, registrations, filings or qualifications as may be required
under state securities or Blue Sky laws or as may be required by the laws of
any country other than the United States in connection with the purchase and
distribution of the Shares by the International Managers.
(d) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectuses, the Prospectuses or any
amendment or supplement thereto are made in reliance upon and in conformity with
written information concerning such Selling Stockholder furnished to the Company
by such Selling Stockholder specifically for use therein, such Preliminary
Prospectuses did, and the Registration Statement did or will, and the
Prospectuses and any amendments or supplements to the Registration Statement or
the Prospectuses will, when they become effective or are filed with the
Commission, as the case may be, not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
3. Purchase of the Shares by the International Managers. (a)
Subject to the terms and conditions and upon the basis of the representations
and warranties herein set forth, each of the Selling Stockholders, severally and
not jointly, agrees to sell that number of Firm Shares set forth opposite such
Selling Stockholder's name in Schedule II hereto, to the International Managers
and each of the International Managers agrees, severally and not jointly, to
purchase, at a price of $_______ per Share, the number of Firm Shares set forth
opposite such International Manager's name in Schedule I hereto. Each
International Manager shall be obligated to purchase from the Selling
Stockholders that number of the Firm Shares which represents the same proportion
of the number of the Firm Shares to be sold by the Selling Stockholders as the
number of the Firm Shares set forth opposite the name of such International
Manager in Schedule I represents of the total number of the Firm Shares to be
purchased by all of the International Managers pursuant to this Agreement. The
respective purchase obligations of the International Managers with respect to
the Firm Shares shall be rounded among the International Managers to avoid
fractional shares, as the Lead Managers may determine. The International
Managers agree to offer the Firm Shares to the public as set forth in the
International Prospectus. Each International Manager agrees that, except to the
extent permitted by the Agreement Between U.S. Underwriters and International
Managers, it will not offer any of the Shares inside the United States and
Canada.
The obligations of the Selling Stockholders to sell any Shares, and
the obligations of the International Managers to purchase the Shares, are
subject to the closing of the sale and purchase of the U.S. Firm Shares pursuant
to the U.S. Underwriting Agreement.
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(b) Subject to the terms and conditions of this Agreement, the
Selling Stockholders hereby grant to the International Managers an option to
purchase from the Selling Stockholders, solely for the purpose of covering
over-allotments in the sale of Firm Shares, up to 254,854 shares of the Option
Shares for a period of 30 days from the date hereof at the purchase price per
Share set forth above. Option Shares shall be purchased from the Selling
Stockholders for the accounts of the International Managers, severally and not
jointly, in proportion to the number of Firm Shares set forth opposite such
International Manager's name in Schedule I hereto, except that the respective
purchase obligations of each International Manager shall be adjusted by the Lead
Managers so that no International Manager shall be obligated to purchase Option
Shares other than in 100-share quantities. Option Shares shall be sold by the
Selling Stockholders in proportion to the number of Firm Shares set forth
opposite such Selling Stockholder's name in Schedule II hereto, rounded among
the Selling Stockholders to avoid fractional shares.
4. Delivery of and Payment for Shares. Delivery of certificates for
the Firm Shares, and certificates for the Option Shares, if the option to
purchase the same is exercised on or before the third Business Day prior to the
First Closing Date, shall be made at the offices of Xxxxxx Brothers Inc., Three
World Financial Center, Attention: ___________________, Xxx Xxxx, Xxx Xxxx
00000 (or such other place as mutually may be agreed upon), at 10:00 A.M., New
York City time, on the third full Business Day following the date of this
Agreement if this Agreement is executed before 4:30 p.m. New York time, or on
the fourth full Business Day following the date of this Agreement if this
Agreement is executed after 4:30 p.m. New York time or on such later date as
shall be determined by you and the Selling Stockholders (the "First Closing
Date").
The option to purchase Option Shares granted in Section 3 hereof may
be exercised during the term specified therein by written notice to each of the
Selling Stockholders from the Lead Managers. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being exercised and
the time and date, not earlier than either the First Closing Date or the second
Business Day after the date on which the option shall have been exercised nor
later than the third Business Day after the date of such exercise, as determined
by the Lead Managers, when the Option Shares are to be delivered (the "Option
Closing Date"). Delivery and payment for such Option Shares shall be made at
the offices set forth above for delivery and payment of the Firm Shares. (The
First Closing Date and the Option Closing Date are herein individually referred
to as a "Closing Date" and collectively referred to as the "Closing Dates".)
Delivery of certificates for the Shares shall be made by or on behalf
of the Selling Stockholders to you, for the respective accounts of the
International Managers, against payment of the purchase price therefor by
certified or official bank checks payable in New York Clearing House (next day)
funds to the order of each of the Selling Stockholders. The certificates for
the Shares shall be registered in such names and denominations as you shall have
requested at least two full Business Days prior to the applicable Closing Date,
and shall be made available for checking and packaging in New York, New York, or
such other location as may be designated by you at least one full Business Day
prior to such Closing Date. Time shall be of the essence,
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and delivery of certificates for the Shares at the time and place specified in
this Agreement is a further condition to the obligations of each International
Manager.
5. Covenants. The Company agrees with each International Manager
that:
(a) The Company shall use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendments thereto to
become effective. The Company shall advise you promptly of the filing of any
amendment to the Registration Statement or any supplement to any Prospectus and,
upon notification from the Commission that the Registration Statement or any
such amendment has become effective, shall so advise you promptly (in writing,
if requested). If the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of any Prospectus is otherwise required under
Rule 424(b), the Company will cause such Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) in the manner and within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely filing.
The Company shall notify you promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or any Prospectus or
for additional information; the Company shall prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or the International Prospectus which, in your reasonable
opinion, may be necessary or advisable in connection with the distribution of
the Shares; and the Company shall not file any amendment or supplement to the
Registration Statement or the International Prospectus, which filing is not
consented to by you after reasonable notice thereof. The Company shall advise
you promptly of the issuance by the Commission or any state or other
governmental or regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, suspending or preventing the use of
any Preliminary Prospectus or Prospectus or suspending the qualification of the
Shares for offering or sale in any jurisdiction, or of the institution of any
proceedings for any such purpose; and the Company shall use its best efforts to
prevent the issuance of any stop order or other such order and, should a stop
order or other such order be issued, to obtain as soon as possible the lifting
thereof.
(b) The Company shall furnish to Xxxxxx Brothers International
(Europe) and to counsel for the International Managers a signed copy of the
Registration Statement as originally filed and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith, and shall
furnish to the International Managers such number of conformed copies of the
Registration Statement, as originally filed and each amendment thereto
(excluding exhibits other than this Agreement), any Preliminary Prospectus, the
International Prospectus and all amendments and supplements to any of such
documents, in each case as soon as available and in such quantities as the Lead
Managers may from time to time reasonably request.
(c) Within the time during which the Prospectuses relating to the
Underwritten Shares are required to be delivered under the Act, the Company
shall comply with all requirements imposed upon it by the Act, the Exchange Act
and the Rules and Regulations so far as is necessary to permit the continuance
of sales of or dealings in the Underwritten Shares as contemplated by the
provisions hereof and by the Prospectuses. If during such period any
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event occurs as a result of which the International Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the International
Prospectus to comply with the Act or the Exchange Act or the Rules and
Regulations, the Company shall promptly notify you and, subject to the
penultimate sentence of paragraph (a) of this Section 5, shall amend the
Registration Statement or supplement the International Prospectus or file such
document (at the expense of the Company) so as to correct such statement or
omission or to effect such compliance.
(d) The Company shall take or cause to be taken all necessary action
and furnish to whomever you may direct such information as may be required in
qualifying the Shares (and any U.S. Shares that may be sold to the International
Managers by the U.S. Underwriters) for offer and sale under the state securities
or Blue Sky laws of such jurisdictions as you shall designate and to continue
such qualifications in effect for as long as may be necessary for the
distribution of the Shares (and such International Shares); except that in no
event shall the Company be obligated in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process.
(e) The Company shall furnish to you, on or prior to the date of this
Agreement, a letter or letters, in form and substance reasonably satisfactory to
counsel for the International Managers, pursuant to which each executive officer
of the Company identified in the Prospectuses who owns any shares of Common
Stock at the Execution Time shall agree not to offer for sale, sell or otherwise
dispose of any shares of Common Stock of any securities convertible or
exchangeable or exercisable for such Common Stock during the 60 days following
the date of the Effective Time except with prior written consent of Xxxxxx
Brothers International (Europe).
(f) Whether or not the transactions contemplated in this Agreement
are consummated, the costs incident to the preparation, printing and filing
under the Act of the Registration Statement and any amendments and exhibits
thereto; the costs of distributing the Registration Statement as originally
filed and each amendment and post-effective amendment thereof (including
exhibits), any Preliminary Prospectus, each Prospectus and any amendment or
supplement to each Prospectus, all as provided in this Agreement, the filing fee
of the NASD; the reasonable fees and expenses of qualifying the Shares under the
securities laws of the several jurisdictions as provided in this paragraph and
of preparing and printing a Blue Sky Memorandum and a memorandum concerning the
legality of the Shares as an investment, if any (including reasonable fees and
expenses of counsel to the International Managers in connection therewith); the
cost of printing certificates; the cost and charges of any transfer agent or
registrar; and all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that, except as provided in this
Section, Section 8 and Section 10 hereof, each Selling Stockholder shall pay all
its own costs and expenses, including the fees of its counsel and stock transfer
taxes.
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(g) The Company shall, on or prior to each Closing Date, take such
action as shall be necessary to comply with the rules and regulations of the New
York Stock Exchange with respect to the Shares to be purchased on such date by
the International Managers.
(h) During a period of five years from the Effective Date, the
Company shall, upon written request, furnish to the Lead Managers copies of all
reports or other communications furnished to shareholders and copies of any
reports or financial statements furnished to or filed with the Commission, the
New York Stock Exchange or any other national securities exchange on which any
class of securities of the Company shall be listed.
(i) As soon as practicable after the Effective Date of the
Registration Statement, the Company shall make generally available to its
security holders and to deliver to the International Managers an earnings
statement of the Company, conforming with the requirements of Section 11(a) and
Rule 158 of the Act, covering a period of at least 12 months beginning after the
Effective Date.
6. Further Agreement of the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, agrees to deliver to the Representatives
prior to the First Closing Date a properly completed and executed United States
Treasury Department Form W-9.
7. Conditions of International Managers' Obligations. The respective
obligations of the several International Managers hereunder are subject to the
accuracy, when made and as of each Closing Date, of the representations and
warranties of the Company and the Selling Stockholders contained herein, to the
performance by the Company and the Selling Stockholder of their respective
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Registration Statement and any post-effective amendment
thereto has become effective under the Act; if the Registration Statement has
not become effective prior to the Execution Time, unless the International
Managers agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 P.M. New York City time on the date of
determination of the public offering price, if such determination occurred at or
prior to 3:00 P.M. New York City time on such date or (ii) 2:00 P.M. on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 P.M. New York City time on
such date; if required under Rule 424(b), the Prospectuses shall have been
timely filed with the Commission in accordance with Section 5(a) hereof, not
later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 430(A)(a)(3); no Stop Order shall have
been issued and prior to that time no proceeding for that purpose shall have
been initiated or threatened by the Commission; any request of the Commission
for inclusion of additional information in the Registration Statement or the
Prospectuses or otherwise shall have been complied with; and the Company shall
not have filed with the Commission any amendment or supplement to the
Registration Statement or the Prospectuses without the consent of the
Underwriters. If the Company has elected to rely upon Rule 430A of the Act, the
price of the Shares and any price-related information previously omitted from
the effective Registration Statement pursuant to such Rule 430A shall have been
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transmitted to the Commission for filing pursuant to Rule 424(b) of the Act
within the prescribed time period, and prior to the applicable Closing Date the
Company shall have provided evidence satisfactory to the International Managers
of such timely filing, or a post-effective amendment providing such information
shall have been prepared, filed and declared effective in accordance with the
requirements of Rule 430A of the Act.
(b) No U.S. Underwriter or International Manager shall have
discovered after the date hereof and disclosed to the Company on or prior to
such applicable Closing Date that the Registration Statement or the Prospectuses
or any amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
International Managers, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten Shares, the
Registration Statement and the Prospectuses, and all other legal matters
relating to this Agreement and the transactions contemplated hereby, shall be
reasonably satisfactory in all respects to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
for the International Managers, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) On each Closing Date, Winston & Xxxxxx, as special counsel to the
Company, shall have furnished to the International Managers their written
opinion addressed to the International Managers and dated such Closing Date in
form and substance reasonably satisfactory to the International Managers (with
customary qualifications and assumptions agreed to by counsel for the
International Managers) to the effect that:
(i) the Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing and in good standing under
the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses, requires such
qualification, except where the failure to be so qualified and in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and have all corporate power and authority
necessary to own or hold their respective properties and to conduct the
business in which they are engaged as described in the Prospectus;
(ii) this Agreement and the U.S. Underwriting Agreement have
been duly authorized, executed, and delivered by the Company, are legally
valid and binding obligations of the Company, and are enforceable against
the Company in accordance with their terms, except to the extent that
rights to indemnity or contribution hereunder and thereunder may be limited
by Federal or state securities laws or the public policy underlying such
laws may limit the right to indemnity and contribution thereunder; no
consent, authorization, approval, order, license, certificate, or permit of
or from, or
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declaration or filing with, any Federal, state, local or other governmental
authority or any court or other tribunal is required by the Company for the
execution, delivery, or performance of this Agreement or the U.S.
Underwriting Agreement by the Company (except filings under the Act and
filings with the New York Stock Exchange which have been made and consents,
authorizations, permits, orders and other matters required by the National
Association of Securities Dealers or under Blue Sky or state securities
laws as to which such counsel need express no opinion);
(iii) the Underwritten Shares conform to the description of the
Common Stock in the Prospectuses; and the Underwritten Shares have been
listed on the New York Stock Exchange;
(iv) The statements contained in the Prospectuses under the
caption "Certain United States Federal Tax Considerations for Non-U.S.
Holders of Common Stock", insofar as they describe federal statutes, rules
and regulations, constitute a fair summary thereof;
(v) the Registration Statement was declared effective under the
Act as of the date and time specified in such opinion, no Stop Order has
been issued and, to the knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission;
(vi) the Registration Statement and the Prospectuses and any
further amendments or supplements thereto made by the Company prior to each
Closing Date (other than the financial statements and related schedules
therein and other financial and statistical information included in or
excluded from the Registration Statement or the Prospectuses, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Rules and Regulations and
the documents incorporated by reference therein (other than any financial
statements, related schedules and other financial and statistical
information included therein or excluded therefrom), at the time they were
filed with the Commission, complied as to form in all material respects
with the Exchange Act and the applicable Rules and Regulations (except as
aforesaid).
Notwithstanding the foregoing, the opinion set forth in the first
clause of paragraph (ii) may be subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to creditors' rights generally and to court
decisions with respect thereto and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and no opinion need be expressed as to the availability of equitable
remedies for any breach of any such agreement.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America (to the extent specifically referred to therein), the laws of the
State of New York and General Corporation Law of the State of Delaware; and (ii)
rely (to the extent such counsel deems proper and specifies in
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their opinion), as to matters involving the application of the laws of
jurisdictions other than the State of New York or the United States or the
General Corporation Law of the State of Delaware upon opinions (dated the
applicable Closing Date, addressed to the International Managers and in form
reasonably satisfactory to the International Managers with signed or conformed
copies for each of the International Managers) of counsel acceptable to Xxxxxxx
Xxxxxxx & Xxxxxxxx. Such counsel shall also have furnished to the
International Managers a written statement, addressed to the International
Managers and dated the applicable Closing Date, in form and substance
reasonably satisfactory to the International Managers, to the effect that such
counsel participated in conferences with officers and representatives of the
Company, Xxxxxx Xxxxxxxx LLP, the International Managers and Xxxxxxx Xxxxxxx &
Xxxxxxxx in connection with the preparation of the Registration Statement, and
based on the foregoing and without assuming responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or making any independent check or verification thereof (relying as
to factual matters upon the statements of officers and other representatives of
the Company, the Selling Stockholders and others), no facts have come to the
attention of such counsel which lead them to believe that (I) the Registration
Statement, as of the Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading (other than
the information omitted therefrom in reliance on Rule 430A), or (II) each of
the Prospectuses as amended or supplemented, as of each Closing Date, contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that such counsel need not express an opinion or belief as
to any financial statements, schedules and other financial or statistical
information included in or excluded from the Registration Statement or the
Prospectuses.
(e) On each Closing Date, Xxxxxx X. XxXxxxxx, General Counsel to the
Company, or Xxxxxxx X'Xxxx, corporate counsel to the Company, shall have
furnished to the International Managers his written opinion addressed to the
International Managers and dated such Closing Date in form and substance
reasonably satisfactory to the International Managers (with customary
qualifications and assumptions agreed to by counsel for the International
Managers) to the effect that:
(i) the Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing and in good standing under
the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses, requires such
qualification, except where the failure to be so qualified and in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and have all corporate power and authority
necessary to own or hold their respective properties and to conduct the
business in which they are engaged as described in the Prospectuses;
(ii) the Company has an authorized capitalization as set forth
in the Prospectuses, and all of the issued shares of capital stock of the
Company (including,
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without limitation, all of the Underwritten Shares) have been duly and
validly authorized and issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectuses; and all of the
issued shares of capital stock of each subsidiary of the Company owned
directly or indirectly by the Company have been duly and validly authorized
and issued and are fully paid, nonassessable and (except for directors'
qualifying shares) owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims, except as described
in the Prospectuses; to the best of such counsel's knowledge after due
inquiry and investigation, there is no commitment, plan, or arrangement to
issue, and no outstanding option, warrant, or other right calling for the
issuance of, any share of capital stock of the Company or of the Company's
subsidiaries to any person other than the Company, or any security or other
instrument which by its terms is convertible into, exercisable for, or
exchangeable for capital stock of the Company or of the Company's
subsidiaries, except as may be described in the Prospectuses or has been
disclosed to the International Managers;
(iii) the Underwritten Shares have been listed on the New York
Stock Exchange;
(iv) there is no litigation, arbitration, claim, governmental or
other proceeding or investigation pending or, to the best of such counsel's
knowledge after due inquiry and investigation, threatened to which the
Company or any of its subsidiaries is a party or to which any of their
respective operations, businesses or assets is the subject which could
reasonably be expected to have a material adverse effect upon the
consolidated financial position, shareholders, equity, results of
operations, business or prospects of the Company and its subsidiaries taken
as a whole; neither the Company nor any of its subsidiaries is in violation
of, or in default with respect to, any law, rule, regulation, order,
judgment, or decree, except as may be described in the Prospectuses or such
as in the aggregate do not have a significant likelihood of having a
material adverse effect upon the consolidated financial position,
shareholders' equity, results of operations, business or prospects of the
Company and its subsidiaries taken as a whole;
(v) neither the Company nor any of its subsidiaries is now in
violation or breach of, or in default with respect to, any material
provision of any contract, agreement, instrument, lease or license, which
is material to the Company and its subsidiaries taken as a whole;
(vi) neither the Company nor any of its subsidiaries is in
violation or breach of, or in default with respect to, any term of its
Certificate of Incorporation or By-laws;
(vii) the execution, delivery and performance of this Agreement
and the U.S. Underwriting Agreement and the sale of the Underwritten Shares
as contemplated hereby and thereby will not conflict with or result in a
breach or violation in any material respect of any of the terms and
provisions of, or constitute a default under, any material contract,
agreement, instrument, lease, or license known to such counsel, or violate
or result in a breach of any term of the articles of incorporation (or
other charter document) or by-laws of the Company or any of its
subsidiaries, or violate, result in a breach of, or conflict in
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any material respect with any law or statute, rule, or regulation, or any
order, judgment, or decree known to such counsel, that is binding on the
Company or any of its subsidiaries or to which any of their respective
operations, businesses or assets are subject; no consent, authorization,
approval, order, license, certificate or permit of or from, or declaration
or filing with any Federal, state, local or other governmental authority or
any court or other tribunal is required by the Company for the execution,
delivery or performance of this Agreement and the U.S. Underwriting
Agreement or for the sale of the Underwritten Shares contemplated hereby
and thereby (except filings under the Act which have been made and
consents, authorization, permits, orders and other matters required under
Blue Sky or State securities laws or as may be required by the laws of any
country other than the United States as to which such counsel need express
no opinion);
(viii) any contract, agreement, instrument, lease or license
required to be described in the Registration Statement or the Prospectuses
has been properly described therein; any contract, agreement, instrument,
lease, or license required to be filed as an exhibit to the Registration
Statement has been filed with the Commission as an exhibit to the
Registration Statement or incorporated therein by reference;
(ix) insofar as statements in the Prospectuses purport to
summarize the status of litigation or the provisions of laws, rules,
regulations, orders, judgments, decrees, contracts, agreements,
instruments, leases, or licenses, such statements have been prepared or
reviewed by such counsel and accurately reflect, in all material respects,
the status of such litigation and provisions purported to be summarized and
are correct in all material respects; and
(x) there are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of, any
Underwritten Shares pursuant to the Company's Certificate of Incorporation
or By-laws, in each case as amended, or any agreement or other instrument;
and no holders of securities of the Company have rights to the registration
thereof under the Registration Statement except as set forth in the
Prospectuses or, if any such holders have such rights, such holders have
waived such rights;
Notwithstanding the foregoing, the opinion set forth in the first
clause of paragraph (vii) may be subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to creditors' rights generally and to court
decisions with respect thereto and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and no opinion need be expressed as to the availability of equitable
remedies for any breach of any such agreement.
In rendering such opinion, such counsel may (i) state that his opinion
is limited to matters governed by the Federal laws of the United States of
America to the extent specifically referred to therein, the laws of the State of
Michigan and General Corporation Law of the State of Delaware; and (ii) rely (to
the extent such counsel deems proper and specifies in his opinion), as to
foreign matters involving the application of the laws of jurisdictions other
than the State
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of Michigan or the United States or the corporate law of the State of Delaware
upon opinions (dated each Closing Date, addressed to the International Managers
and in form reasonably satisfactory to the International Managers with signed
or conformed copies for each of the International Managers) of counsel
acceptable to Xxxxxxx Xxxxxxx & Xxxxxxxx.
(f) On the First Closing Date, there shall have been furnished to you
the opinion of counsel for each of the Selling Stockholders (addressed to the
Underwriters), dated the Closing Date in form and substance reasonably
satisfactory to the Underwriters to the effect that:
(i) such Selling Stockholder has full right, power and authority
to enter into this Agreement and to perform its obligations hereunder;
(ii) this Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder; and
(iii) the execution, delivery and performance of this Agreement
by such Selling Stockholder and the consummation by such Selling
Stockholder of the transactions contemplated hereby will not conflict with
or result in a breach or violation in any material respect of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is subject, nor will such
actions result in any violation in any material respect of the provisions
of the partnership agreement of such Selling Stockholder or any statute or
any order, rule or regulation known to such counsel of any court or
governmental agency having jurisdiction over such Selling Stockholder or
the property or assets of such Selling Stockholder; and no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency is required for the execution, delivery
and performance of this Agreement by such Selling Stockholder and the
consummation by such Selling Stockholder of the transactions contemplated
hereby, except the registration under the Act of the Shares, such consents
approvals, authorizations, registrations, filings or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the shares by the Underwriters or as may be
required by the laws of any country other than the United States, and
amendments to filings made under the Exchange Act.
(g) The Company shall have furnished to the International Managers on
each Closing Date a certificate, dated such Closing Date, of its President or a
Vice President and its Chief Financial Officer or Treasurer stating that:
(i) they have carefully examined the Registration Statement and
the Prospectuses and, in their opinion, in each case to the extent
information provided in the Registration Statement or Prospectus relates to
(A) as of the Effective Time of the Registration Statement, the
Registration Statement did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) as
of its date, each of the
22
22
Prospectuses, as amended or supplemented, did not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading and (C) since the Effective Date of
the Registration Statement or the date of each Prospectus, as the case may
be, no event has occurred which should have been set forth in a supplement
to or amendment of each Prospectus which has not been set forth in such a
supplement or amendment.
(h) At the Effective Time and on each Closing Date, the Company shall
have furnished to the International Managers a letter of Xxxxxx Xxxxxxxx LLP
addressed to the International Managers and dated such Closing Date and in form
and substance satisfactory to the International Managers confirming that they
are independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as
of the date of such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the International Prospectus, as of a date not more than
five days prior to the date of such letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered by
its letter delivered to the International Managers concurrently with the
execution of this Agreement and confirming in all material respects the
conclusions and findings set forth in such prior letter.
(i) The NASD upon review of the terms of the public offering of the
Underwritten Shares, shall not have objected to the participation by any of the
International Managers in such offering or asserted any violation of the By-Laws
of the NASD.
(j) Neither the Company nor any of its Significant Subsidiaries (1)
shall have sustained since the date of the latest audited financial statements
included in the International Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the International
Prospectus or (2) since such date there shall not have been any change in the
capital stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity or result
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the International Prospectus the effect of which, in any such
case described in clause (1) or (2) of this subparagraph, is, in the reasonable
judgment of the International Managers, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the International
Prospectus.
(k) The Shares to be purchased on such Closing Date by the
International Managers shall be listed on the New York Stock Exchange.
(l) Each Selling Stockholder (or one or more attorneys-in-fact on
behalf of such Selling Stockholder) shall have furnished to the Lead Managers on
each Closing Date a
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23
certificate, dated such Closing Date, signed by, or on behalf of, such Selling
Stockholder (or one or more attorneys-in-fact) stating that the
representations, warranties and agreements of such Selling Stockholder
contained herein are true and correct as of such Closing Date and that such
Selling Stockholder has complied with all agreements contained herein to be
performed by such Selling Stockholder at or prior to such Closing Date.
All such opinions, certificates, letters and documents mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are reasonably satisfactory to you and Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the International Managers, and the Company
shall furnish to you conformed copies thereof in such quantities as you
reasonably request.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each International Manager and Selling Stockholder
against any loss, claim, damage or liability (or any action in respect thereof),
including without limitation, any legal or other expenses reasonably incurred by
any International Manager or Selling Stockholder in connection with defending or
investigating any such action or claim, joint or several, to which such
International Manager or Selling Stockholder may become subject, under the Act
or otherwise, insofar as such loss, claim, damage or liability (or action in
respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, any Prospectus or the Registration
Statement or any Prospectus as amended or supplemented or in any Blue Sky
application or other document executed by the Company specifically for that
purpose or based upon written information furnished by the Company filed in any
state or other jurisdiction in order to qualify any of or all the Shares under
the securities laws thereof (any such application, document or information being
hereinafter referred to as a "Blue Sky Application"), or (ii) the omission or
alleged omission to state in the Registration Statement, any Preliminary
Prospectus, any Prospectus or the Registration Statement or any Prospectus as
amended or supplemented or in any Blue Sky Application a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and shall reimburse each International Manager and Selling Stockholder promptly
after receipt of invoices from such International Manager or Selling Stockholder
for any legal or other expenses as reasonably incurred by such International
Manager or Selling Stockholder in connection with investigating, preparing to
defend or defending against or appearing as a third-party witness in connection
with any such loss, claim, damage, liability or action, notwithstanding the
possibility that payments for such expenses might later be held to be improper,
in which case such payments shall be promptly refunded; provided, further, that
the Company shall not be liable pursuant to this Section 8(a) with respect to
any untrue statement or alleged untrue statement or omission or alleged omission
in any Preliminary Prospectus which is corrected in a Prospectus if the person
asserting such loss, claim, damage or liability purchased Shares from an
International Manager but was not sent or given a copy of a Prospectus at or
prior to the written confirmation of the sale of such Shares to such person; and
provided, that the Company shall not be liable (x) under this paragraph 8(a) in
any such case to the extent, but only to the extent, that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company through
the Representatives by or on behalf of any International Manager or Selling
Stockholder specifically
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for use in the preparation of the Registration Statement, any Preliminary
Prospectus, any Prospectus or the Registration Statement or any Prospectus as
amended or supplemented, or any Blue Sky Application.
(b) Each Selling Stockholder severally, but not jointly, shall
indemnify and hold harmless the Company and each International Manager against
any loss, claim, damage or liability (or any action in respect thereof) to which
the Company or such International Manager may become subject, under the Act or
otherwise, insofar as such loss, claim, damage or liability (or action in
respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, any Prospectus or the Registration
Statement or any Prospectus as amended or supplemented or in any Blue Sky
Application, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, any Prospectus or the
Registration Statement or any Prospectus as amended or supplemented, or in any
Blue Sky Application a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and shall reimburse the Company or such
International Manager promptly after receipt of invoices from the Company or
such International Manager for any legal or other expenses as reasonably
incurred by the Company or such International Manager in connection with
investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that such indemnification or reimbursement shall be
available in each such case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning such
Selling Stockholder furnished to the Company or such International Manager by or
on behalf of such Selling Stockholder specifically for use in the preparation
thereof; provided, further, that the Selling Stockholder shall be liable
pursuant to this Section 8(b) with respect to any untrue statement or alleged
untrue statement or omission or alleged omission in any Preliminary Prospectus
which is corrected in a Prospectus if the person asserting such loss, claim,
damage or liability purchased Shares from an International Manager but was not
sent or given a copy of a Prospectus at or prior to the written confirmation of
the sale of such Shares to such person; and provided, further, that the
aggregate amount of all such indemnification or reimbursement payable by any
Selling Stockholder pursuant to this Agreement and Section 8(b) of the U.S.
Underwriting Agreement shall in no case exceed the net proceeds to such Selling
Stockholder from the sale of the Underwritten Shares.
(c) Each International Manager severally, but not jointly, shall
indemnify and hold harmless the Company and each Selling Stockholder against any
loss, claim, damage or liability (or any action in respect thereof) to which the
Company or any Selling Stockholder may become subject, under the Act or
otherwise, insofar as such loss, claim, damage or liability (or action in
respect thereof) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, any Prospectus or the Registration
Statement or any Prospectus as amended or supplemented, or in any Blue Sky
Application, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, any Prospectus or the
Registration Statement or any
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25
Prospectus as amended or supplemented, or in any Blue Sky Application a
material fact required to be stated therein or necessary to make the statements
therein not misleading and shall reimburse the Company or such Selling
Stockholder promptly after receipt of invoices from the Company or such Selling
Stockholder for any legal or other expenses as reasonably incurred by the
Company or such Selling Stockholder in connection with investigating, preparing
to defend or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, however, that such indemnification or reimbursement shall be
available in each such case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company or such Selling Stockholder through you by or on behalf of such
International Manager specifically for use in the preparation thereof.
(d) Promptly after receipt by any indemnified party under subsection
(a) (b) or (c) above of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure so to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been prejudiced in any material respect by such failure or from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against any indemnified party and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under such subsection for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; except that any
indemnified party shall have the right to employ its own counsel to represent it
if, in the reasonable judgment of such indemnified party (based on advice of
counsel), it is advisable for such indemnified party to be represented by
separate counsel because there may be legal defenses available to it or other
indemnified parties that are inconsistent with those available to the
indemnifying party, and in that event the fees and expenses of such separate
counsel shall be paid by the indemnifying party.
(e) If the indemnification provided for in this Section 8 is
unavailable to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, the Selling Stockholders
and the International Managers 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, the
Selling Stockholders and the International Managers in connection with the
statements or omissions that resulted in
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26
such losses, claims, damages or liabilities, or actions in respect thereof, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders, on the one hand, and the
International Managers, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares (after
underwriting discounts and commissions but before deducting other expenses)
received by the Selling Stockholders bear to the total underwriting discounts
and commissions received by the International Managers, in each case as set
forth in the table on the cover page of the International Prospectus (with the
estimated expenses allocated pro rata among the Shares and the U.S. Shares).
Relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company, the Selling Stockholders or the International Managers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company, the Selling
Stockholders and the International Managers agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were to be
determined by pro rata allocation (even if the International Managers were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to in
the first sentence of this subsection (e). The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in the first sentence of this subsection (e) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating, preparing to defend or
defending against any action or claim which is the subject of this subsection
(e). Notwithstanding the provisions of this subsection (e), (i) no
International Manager shall be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission and (ii) notwithstanding the provisions of this subsection (e), no
Selling Stockholder shall be required to contribute any amount in excess of the
amount by which the amount of net proceeds received by such Selling Stockholder
from the sale by such Selling Stockholder of its portion of the Shares pursuant
to this Agreement exceeds the amount of any damages such Selling Stockholder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The International Managers' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint. Each party entitled to contribution agrees that
upon the service of a summons or other initial legal process upon it in any
action instituted against it in respect of which contribution may be sought, it
shall promptly give written notice of such service to the party or parties from
whom contribution may be sought, but the omission so to notify such party or
parties of any such service shall not relieve the party from whom contribution
may be sought for any obligation it may have hereunder or otherwise (except as
specifically provided in subsection (d) hereof).
(f) The obligations of the Company and the Selling Stockholders under
this Section 8 shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have, and shall extend, upon the same terms
and conditions, to each person, if
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27
any, who controls the Selling Stockholder or any International Manager within
the meaning of the Act; and the obligations of the International Managers and
the Selling Stockholders under this Section 8 shall be in addition to any
liability that the respective International Managers and the Selling
Stockholders may otherwise have, and shall extend, upon the same terms and
conditions, to each director of the Company (including any person who, with his
or her consent, is named in the Registration Statement as about to become a
director of the Company) or any Selling Stockholder, to each officer of the
Company who has signed the Registration Statement and to each person, if any,
who controls the Company or any Selling Stockholder within the meaning of the
Act.
9. Substitution of International Managers. If, on either Closing
Date, any International Manager defaults in the performance of its obligations
under this Agreement, the remaining non-defaulting International Managers shall
be obligated to purchase the Shares which the defaulting International Manager
agreed but failed to purchase on such Closing Date in the respective proportions
which the number of Firm Shares set opposite the name of each remaining
non-defaulting International Manager in Schedule 1 hereto bears to the total
number of Firm Shares set opposite the names of all the remaining non-defaulting
International Managers in Schedule 1 hereto; provided, however, that the
remaining non-defaulting International Managers shall not be obligated to
purchase any of the Shares on such Closing Date if the total number of Shares
which the defaulting International Manager or International Managers agreed but
failed to purchase on such date exceeds 9.09% of the total number of Shares to
be purchased on such Closing Date, and any remaining non-defaulting
International Manager shall not be obligated to purchase more than 110% of the
number of Shares which it agreed to purchase on such Closing Date pursuant to
the terms of Section 3. If the foregoing maximums are exceeded, the remaining
non-defaulting International Managers, or those other underwriters satisfactory
to the Lead Managers who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Shares to be purchased on such Closing Date. If the remaining International
Managers or other underwriters satisfactory to the Lead Managers do not elect to
purchase the Shares which the defaulting International Manager or International
Managers agreed but failed to purchase on such Closing Date, this Agreement (or,
with respect to the Option Closing Date, the obligation of the International
Managers to purchase, and of the Company to sell, the Option Shares) shall
terminate without liability on the part of any non-defaulting International
Manager or the Company or the Selling Stockholders, except that the Company will
continue to be liable for the payment of expenses to the extent set forth in
Sections 5(f) and 10. As used in this Agreement, the term "International
Manager" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 9, purchases Firm Shares which a defaulting International Manager
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company and the Selling Stockholders
for damages caused by its default. If other underwriters are obligated or agree
to purchase the Shares of a defaulting or withdrawing International Manager,
either the Lead Managers, the Company or the Selling Stockholders may postpone
the Closing Date for up to seven full Business Days in order to effect any
changes that in the opinion of counsel for the International Managers, the
Company or the
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Selling Stockholders may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
10. Effective Date and Termination. (a) This Agreement shall
become effective at 11:00 A.M., New York City time, on the first full Business
Day following the date hereof, or at such earlier time after the Registration
Statement becomes effective as you shall first release the Firm Shares for sale
to the public. You shall notify the Company immediately after you have taken
any action which causes this Agreement to become effective. For purposes of
this Agreement, the release of the public offering of the Firm Shares for sale
to the public shall be deemed to have been made when you release, by telecopy or
otherwise, firm offers of the Firm Shares to securities dealers or release for
publication a newspaper advertisement relating to the Firm Shares, whichever
occurs first.
(b) From the date of this Agreement until the First Closing Date,
this Agreement may be terminated by you in your absolute discretion by giving
notice as hereinafter provided to the Company and the Selling Stockholders, if
(i) the Company shall have failed, refused or been unable, at or prior to such
Closing Date, to perform any agreement on its part to be performed hereunder;
(ii) any other condition to the obligations of the International Managers
hereunder (other than the conditions set forth in Section 7(i) hereof) is not
fulfilled; (iii) there occurs any change, or any development involving a
prospective change, in or affecting the financial condition of the Company or
its subsidiaries, which in your judgment, materially impairs the investment
quality of the Shares; (iv) there is any downgrading in the rating of any debt
securities of the Company by any nationally recognized statistical rating
organization (as defined for purposes of Rule 436(g) under the Act or Rule
15c3-1 under the Exchange Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (v) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, or minimum prices shall have
been established on such exchange by the Commission, or by such exchange or
other regulatory body or governmental authority having jurisdiction; (vi) any
banking moratorium shall have been declared by Federal or New York governmental
authorities; (vii) there is an outbreak or escalation of hostilities involving
the United States on or after the date hereof, or the United States is or
becomes engaged in hostilities which result in the declaration of a national
emergency or war, the effect of which, in your judgment, makes it inadvisable or
impractical to proceed with the completion of the sale of or any payment for the
Shares on the terms and in the manner contemplated in the Prospectuses; or
(viii) there shall have been such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such), in your judgment, as
to make it inadvisable or impractical to proceed with the delivery of the
Shares. Any termination of this Agreement pursuant to this Section 10 shall be
without liability on the part of the Company, any Selling Stockholder or any
International Manager, except as otherwise provided in Section 5(f), Section 8
and Section 10 of this Agreement.
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Any notice referred to above may be given at the address specified in
Section 12 hereof in writing or by telecopier, telex or telephone, and if by
telecopier, telex or telephone, shall be immediately confirmed in writing.
If notice shall have been given pursuant to this Section 10 preventing
this Agreement from becoming effective, or if the International Managers shall
decline to purchase the Shares for any reason permitted under this Agreement,
the Company shall reimburse the International Managers for the reasonable fees
and expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of the Shares, and upon demand the Company shall pay the full amount
thereof to the International Managers.
11. Survival of Certain Provisions. The agreements contained in
Section 8 hereof and the representations, warranties and agreements of the
Company contained in Sections 1 and 5 hereof and the Selling Stockholder
contained in Sections 2 and 6 hereof shall survive the delivery of the Shares to
the International Managers hereunder and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
12. Notices. Except as otherwise provided in the Agreement, (a)
whenever notice is required by the provisions of this Agreement to be given to
the Company, such notice shall be in writing or by telecopy addressed to the
Company at the address of the Company set forth in the Registration Statement,
Attention: Xxxxx X. Xxxxxxxxxxxx; (b) whenever notice is required by the
provisions of this Agreement to be given to the Selling Stockholders, such
notice shall be in writing or by telecopy addressed to Three World Financial
Center (18th Floor), New York, NY, Attention: Xxxx Xxxxxxxxxx; and (c) whenever
notice is required by provisions of this Agreement to be given to the several
International Managers, such notice shall be in writing or by telecopy addressed
to you, in care of Xxxxxx Brothers International (Europe), Xxx Xxxxxxxxx, Xxxxxx
XX0X 0XX, Xxxxxxx.
13. Information Furnished by U.S. Underwriters. The International
Managers severally confirm that the statements set forth in the last paragraph
of the cover page with respect to the public offering of the Shares and under
the caption "Underwriting" in any Preliminary Prospectus and in the Prospectuses
are correct and constitute the written information furnished by or on behalf of
any International Manager referred to in paragraph (c) of Section 1 hereof and
in paragraphs (a) and (c) of Section 8 hereof.
14. Information Furnished by Selling Stockholders. Each the Selling
Stockholders severally confirm that the statements with respect to such Selling
Stockholder set forth under the caption "Selling Stockholders" in any
Preliminary Prospectus and in the Prospectuses are correct and constitute the
only written information furnished by or on behalf of such Selling Stockholder
pursuant to Section 8(b) hereof.
15. Parties. This Agreement shall inure to the benefit of and
binding upon the several International Managers, the Company, the Selling
Stockholders and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only
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those persons, except that (a) the representations, warranties, indemnities and
agreements of the Company and the Selling Stockholder contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any International Manager within the meaning of Section 15
of the Act and for the benefit of any U.S. Underwriter (and controlling persons
thereof) who offers or sells any Shares in accordance with the terms of the
Agreement Between U.S. Underwriters and International Managers and (b) the
indemnity agreement of the International Managers contained in Section 8 hereof
shall be deemed to be for the benefit of directors of the Company, officers of
the Company who signed the Registration Statement, any person controlling the
Company within the meaning of Section 15 of the Act, directors of each Selling
Stockholder, officers of each Selling Stockholder and any person controlling
any Selling Stockholder within the meaning of Section 15 of the Act. Nothing
in this Agreement shall be construed to give any person, other than the persons
referred to in this paragraph, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
16. Compliance with Conduct Rule 2720 of NASD By-laws. Each
International Manager agrees, severally and not jointly, that in accordance with
Conduct Rule 2720 of the By-laws of the NASD, a transaction in Shares issued by
the Company shall not be executed by such International Manager in a
discretionary account without the prior specific written approval of the
customer.
17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without respect to choice
of law principles thereof.
18. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
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If the foregoing correctly sets forth the agreement among the Company,
the Selling Stockholders and the International Managers, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
XXXX CORPORATION
By:
-----------------------
Name:
Title:
XXXXXX BROTHERS MERCHANT BANKING
PORTFOLIO PARTNERSHIP L.P., as
Selling Stockholder
By: LBI Group, Inc.
By:
-----------------------
Name:
Title:
XXXXXX BROTHERS CAPITAL
PARTNERS II, L.P., as Selling
Stockholder
By: Xxxxxx Brothers Holdings, Inc.
By:
-----------------------
Name:
Title:
XXXXXX BROTHERS OFFSHORE INVESTMENT
PARTNERSHIP L.P., as Selling
Stockholder
By: Xxxxxx Brothers Offshore Partners
Ltd.
By:
-----------------------
Name:
Title:
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XXXXXX BROTHERS OFFSHORE INVESTMENT
PARTNERSHIP - JAPAN L.P., as Selling
Stockholder
By: Xxxxxx Brothers Offshore Partners
Ltd.
By:
-----------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
J. XXXXX XXXXXXXX & CO. LIMITED
For themselves and as Lead Managers
for each of the several International Managers
named in Schedule I hereto
By: XXXXXX BROTHERS INTERNATIONAL (EUROPE)
By:
-------------------
Name:
Title:
33
SCHEDULE I
International Underwriting Agreement dated ________________, 1997
Number of Firm
Shares to be
International Managers Purchased
---------------------- --------------
Xxxxxx Brothers International (Europe)
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Xxxxxxx & Co. International Limited
Salomon Brothers International Limited
J. Xxxxx Xxxxxxxx & Co. Limited
34
SCHEDULE II
International Underwriting Agreement dated ___________, 1997
Number of Firm
Selling Stockholder Shares to be Sold
------------------- -----------------
Xxxxxx Brothers Merchant Banking Portfolio Partnership
X.X.
Xxxxxx Brothers Capital Partners II, X.X.
Xxxxxx Brothers Offshore Investment Partnership X.X.
Xxxxxx Brothers Offshore Investment Partnership-Japan
L.P.
