Exhibit 1.1
XXXXXXXXX & CO., INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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UNDERWRITING AGREEMENT
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May __, 2005
Xxxxxxx, Sachs & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "SELLING
STOCKHOLDERS") of Xxxxxxxxx & Co., Inc., a Delaware corporation (the "COMPANY"),
propose, subject to the terms and conditions stated herein, to sell to the
Underwriters named in Schedule I hereto (the "UNDERWRITERS") an aggregate of
4,000,000 shares (the "FIRM SHARES") and, at the election of the Underwriters,
up to 600,000 additional shares (the "OPTIONAL SHARES") of Common Stock, par
value $0.01 per share ("STOCK") of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof are
herein collectively called the "SHARES").
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-124082) (the
"INITIAL REGISTRATION STATEMENT") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "COMMISSION"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits thereto, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "RULE 462(B) REGISTRATION
STATEMENT"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "ACT"), which became effective upon filing, no other
document with respect to the Initial Registration Statement has heretofore
been filed with the Commission; no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act is hereinafter called a
"PRELIMINARY PROSPECTUS"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "REGISTRATION STATEMENT"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "PROSPECTUS";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Items 7 and
11(m) of Form S-1;
(iii) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein or
by a Selling Stockholder expressly for use in the preparation of the
answers therein to Items 7 and 11(m) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
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 Prospectus, except for such loss
or interference as would not, individually or in the aggregate, have a
material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its consolidated subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT"); and, since the respective dates as of which information is given
in the Registration Statement and
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the Prospectus, there has not been any change in the capital stock or
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, stockholders' equity or results of operations of the Company and
its consolidated subsidiaries taken as a whole, otherwise than as set forth
or contemplated in the Prospectus;
(v) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(vi) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation (either under its name or a fictitious
name) for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(vii) The Company has no subsidiaries except those entities set forth
in Exhibit 21.1 of the Registration Statement; each of Xxxxxxxxx & Co.,
LLC, a New York limited liability company ("GREENHILL U.S."), Xxxxxxxxx
Capital Partners, LLC, a Delaware limited liability company (the
"MANAGER"), GCP, L.P., a Delaware limited partnership (the "ORIGINAL
GENERAL PARTNER"), GCP Managing Partner, L.P., a Delaware limited
partnership (the "GCP I MANAGING GENERAL PARTNER"), GCP Managing Partner
II, L.P. a Delaware limited partnership (the "GCP II MANAGING GENERAL
PARTNER", and together with the GCP I Managing General Partner, the
"MANAGING GENERAL PARTNERS") and Xxxxxxxxx & Co. International LLP, a
limited liability partnership organized in England and Wales ("GREENHILL
INTERNATIONAL" and, together with Greenhill U.S., the Manager, the Original
General Partner and the Managing General Partners, are herein defined,
whether or not each such entity is a subsidiary for accounting or legal
purposes, as the "SPECIFIED SUBSIDIARIES," and all references in this
Agreement to the subsidiaries of the Company shall be deemed to include,
without limitation, the Specified Subsidiaries) has been duly formed or
organized and is validly existing as a limited liability company or
partnership (and, to the extent such concept is applicable, is in good
standing) under
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the laws of its jurisdiction of formation or organization; and each
subsidiary of the Company other than the Specified Subsidiaries has been
duly formed, incorporated or organized and is validly existing as a limited
liability company, corporation or partnership (and, to the extent such
concept is applicable, is in good standing) under the laws of its
jurisdiction of formation, incorporation or organization, except to such
extent as would not, individually or in the aggregate, have a Material
Adverse Effect or interfere materially with the consummation of the
transactions contemplated in this Agreement;
(viii) The Company has an authorized capitalization as set forth in
the Prospectus, all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Stock contained in the
Prospectus; all of the membership interests or partnership interests of
each Specified Subsidiary have been duly and validly authorized and issued,
are fully paid and (except, in the case of the Original General Partner and
the Managing General Partners, for (i) any liabilities they may incur in
their capacity as general partners under applicable law and (ii) any
obligations to make additional capital contributions pursuant to their
general partnership agreements or any partnership agreements relating to
Xxxxxxxxx Capital Partners, L.P., Xxxxxxxxx Capital Partners (Cayman),
L.P., Xxxxxxxxx Capital Partners (Executives), L.P., Greenhill Capital,
L.P., Xxxxxxxxx Capital Partners II, L.P., Xxxxxxxxx Capital Partners
(Caymans) II, L.P., Xxxxxxxxx Capital Partners (Executives) II, L.P. and
Xxxxxxxxx Capital Partners (Employees) II, L.P. (together, the "MERCHANT
BANKING FUNDS")) non-assessable and (except for the partnership interests
of the Original General Partner and the Managing General Partners) are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; except to such extent as would not,
individually or in the aggregate, have a Material Adverse Effect, all of
the issued shares of capital stock, membership interests or partnership
interests of each subsidiary of the Company other than the Specified
Subsidiaries have been duly and validly authorized and issued, are fully
paid and (except, in the case of any such subsidiary that is a general
partner, for any liability it may incur in its capacity as a general
partner under applicable law) are non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; and none of the Company, the Specified Subsidiaries or
other subsidiaries of the Company is subject to any capital call or similar
obligation, directly or indirectly, pursuant to the partnership agreements
relating to the Merchant Banking Funds, except, in the case of the Original
General Partner and the Managing General Partners, for (i) any liabilities
they may incur in their capacity as general partners under applicable law
and (ii) any obligations to make additional capital contributions pursuant
to their general partnership agreements or any partnership agreements
relating to the Merchant Banking Funds.
(ix) The Shares have been duly and validly authorized and, when
delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(x) The sale of the Shares by the Selling Stockholders and the
compliance by the Company with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the
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Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for such
conflicts, breaches or violations as have been duly waived or would not,
individually or in the aggregate, have a Material Adverse Effect or
interfere with the consummation of the transactions contemplated by this
Agreement, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company, 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;
(xi) Neither the Company nor any of its subsidiaries is in violation
of its Certificate of Incorporation, By-laws or other organizational
documents or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
may be bound;
(xii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock and under the captions "Taxation" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair in
all material respects;
(xiii) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect or interfere with the consummation of the
transactions contemplated by this Agreement; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xiv) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "INVESTMENT
COMPANY ACT");
(xv) To its knowledge, neither the Company nor any of its affiliates
does business with the government of, or with any person (a "SANCTIONED
PERSON") located in any country targeted by any of the economic sanctions
programs or similar sanctions-related measures of the United States as
administered by the United States Treasury Department's Office of Foreign
Assets Control ("OFAC"), and none of the Selling Stockholders is a
Sanctioned Person;
(xvi) No consent, approval, authorization, order, registration,
qualification, permit, license, exemption, filing or notice (each, an
"AUTHORIZATION") of, from, with or to any Federal, state or foreign
government, governmental or regulatory authority, self-regulatory
organization or court or other tribunal (each, an "OFFICIAL BODY") is
required for the sale of the Shares or the consummation of the transactions
contemplated by
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this Agreement, except (i) the registration of the Shares under the Act and
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
(ii) such Authorizations as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters; and no event has occurred
(including the receipt of any notice from any Official Body) that allows or
results in, or after notice or lapse of time or both would allow or result
in, revocation, suspension, termination or invalidation of any such
Authorization or any other impairment of the rights of the holder or maker
of any such Authorization;
(xvii) (A) All corporate, partnership and limited liability company
approvals (including those of stockholders, partners or members) necessary
for the Company and each of the Specified Subsidiaries to consummate the
transactions contemplated in this Agreement have been obtained and are in
effect; and (B) all such approvals necessary for the subsidiaries of the
Company, other than the Specified Subsidiaries, to consummate the
transactions contemplated in this Agreement have been obtained and are in
effect, except, in the case of this clause (B), for such approvals the
absence of which, individually or in the aggregate, would not have a
Material Adverse Effect or materially interfere with the consummation of
the transactions contemplated in this Agreement;
(xviii) All partnership and third party approvals required under any
partnership agreement of the Merchant Banking Funds binding on the Company
or any of its affiliates on the date hereof, and all amendments of any such
agreement or assignments of rights thereunder necessary to permit the
Company, directly or indirectly, through one or more of its affiliates, to
conduct its merchant banking fund management business as set forth in the
Prospectus (including the right to receive management fees and profit
overrides and make investments) have been obtained or made in conformity
with the provisions of such partnership agreements;
(xix) Each of the Company and its subsidiaries has obtained or made
all Authorizations from, to or with all Official Bodies as are required to
conduct their respective businesses as described in the Prospectus, except
for such Authorizations the absence of which, individually or in the
aggregate, would not result in a Material Adverse Effect, and no event has
occurred (including the receipt of any notice from any Official Body) that
allows or results in, or after notice or lapse of time or both would allow
or result in, revocation, suspension, termination or invalidation of any
such Authorization or any other impairment of the rights of the holder or
maker of any such Authorization, except for such events as would not,
individually or in the aggregate, result in a Material Adverse Effect; each
of the Company and its subsidiaries are members in good standing of each
Federal, state or foreign exchange, board of trade, clearing house or
association and self-regulatory or similar organization, in each case as
necessary to conduct their respective businesses as described in the
Prospectus, except to such extent as would not, individually or in the
aggregate, have a Material Adverse Effect or interfere materially with the
consummation of the transactions contemplated in this Agreement; other than
GCP LLC, neither the Company nor any of its subsidiaries is required to
register as an investment adviser under the Investment Advisers Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (the "INVESTMENT ADVISERS ACT"); and, each of GCP LLC's
"investment
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adviser representatives" (within the meaning of Rule 203A-3(a) under the
Investment Advisers Act, if any, has obtained all Authorizations necessary
under the law of any state in which GCP LLC has a "place of business"
(within the meaning of Rule 203A-3(b) under the Investment Advisers Act);
(xx) No holders of securities of or other interests in the Company
have any preemptive rights to acquire any securities of or other interests
in the Company, or any rights to the registration of any securities or
other interests under the Registration Statement (other than any rights
arising under the Transfer Rights Agreement, dated on or about May 11,
2004, between the Company and each of the Selling Stockholders, and all of
which rights will have been satisfied by the execution and delivery of this
Agreement by the Company and the Underwriters);
(xxi) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xxii) The Company maintains a system of internal control over
financial reporting sufficient to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted
accounting principles. As of the date of the latest audited financial
statements included in the Prospectus, the Company's internal control over
financial reporting was effective and the Company was not aware of any
material weaknesses in its internal control over financial reporting;
(xxiii) Since the date of the latest audited financial statements
included in the Prospectus, there has been no change in the Company's
internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company's internal control
over financial reporting; and
(xxiv) The Company maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) of the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company's
principal executive officer and principal financial officer by others
within those entities; such disclosure controls and procedures are
effective.
(b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement
and the Power of Attorney and the Custody Agreement hereinafter referred
to, and for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling Stockholder has
full right, power and authority to enter into this Agreement, the
Power-of-Attorney and the Custody Agreement and to sell, assign, transfer
and deliver the Shares to be sold by such Selling Stockholder hereunder;
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(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder, [the application of the proceeds received by such Selling
Stockholder therefrom] and the compliance by such Selling Stockholder with
all of the provisions of this Agreement, the Power of Attorney and the
Custody Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Selling 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
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of such Selling Stockholder if such Selling
Stockholder is a corporation, the Partnership Agreement of such Selling
Stockholder if such Selling Stockholder is a partnership 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 of such
Selling Stockholder, except for such conflicts, breaches or violations as
have been duly waived or would not, individually or in the aggregate, have
a Material Adverse Effect or interfere with the consummation of the
transactions contemplated by this Agreement; and, in the case of a Selling
Stockholder who is not a "U.S. person" as defined by the relevant
regulations promulgated by OFAC, the proceeds from this offering will not
be used to fund any operations in, finance any investments in or make any
payments to any country, or to make any payments to any person, targeted by
any of the economic sanctions of the United States administered by OFAC.
(iii) Such Selling Stockholder has, and immediately prior to each Time
of Delivery (as defined in Section 4 hereof) such Selling Stockholder will
have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances, equities
or claims;
(iv) Upon payment for the Shares to be sold by the Selling
Stockholders at such Time of Delivery as provided in this Agreement, and
the crediting of such Shares on the records of the Depository Trust Company
("DTC") to securities accounts in the name of the Underwriters, (A) DTC
shall be a "protected purchaser" (within the meaning of Section 8-303 of
the Code), (B) the Underwriters will acquire a valid "security entitlement"
(within the meaning of Section 8-501 of the Code) in respect of such Shares
and (C) no action based on any "adverse claim" (within the meaning of
Section 8-102 of the Code) to such Shares may be asserted against the
Underwriters with respect to such security entitlement (it being understood
that for the purposes of this representation and warranty that when such
payment, delivery and crediting occur, (x) such Shares will have been
registered in the name of Cede & Co. ("CEDE") or another nominee designated
by DTC, in each case on the Company's share registry in accordance with its
Certificate of Incorporation, By-Laws and applicable law, (y) DTC will be
registered as a "clearing corporation" within the meaning of Section 8-102
of the Code and (z) appropriate entries to the account(s) of the
Underwriters on the records of DTC will have been made pursuant to the
Code);
(v) During the period beginning from the date hereof and continuing to
and including the date one year after the date of the Prospectus (the
initial "LOCK-UP
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PERIOD"), not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any Stock or any other securities of the
Company that are substantially similar to the Stock, including but not
limited to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Stock or any such other substantially
similar securities (other than pursuant to employee stock option plans
existing on, upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, or pursuant to the terms of the Separation
Agreement, dated as of May 3, 2005, between Xxxxxx and the Company as in
effect on, the date of this Agreement) or any hedging or other transaction
which is designed to or which reasonably could be expected to lead to or
result in a sale or disposition of such Selling Stockholder's Stock, even
if such Stock would be disposed of by someone other than such Selling
Stockholder, without your prior written consent;
(vi) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(vii) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Stockholder expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(viii) Certificates in negotiable form representing all of the Shares
to be sold by such Selling Stockholder hereunder have been placed in
custody under a Custody Agreement, in the form heretofore furnished to you
(the "CUSTODY AGREEMENT"), duly executed and delivered by such Selling
Stockholder to Wachovia Bank, N.A., as custodian (the "CUSTODIAN"), such
Selling Stockholder has otherwise furnished to the Custodian, to the extent
applicable, the documents described in clauses (a), (b) and (c) in the
second paragraph of the Custody Agreement, and such Selling Stockholder has
duly executed and delivered a Power of Attorney, in the form heretofore
furnished to you (the "POWER OF ATTORNEY"), appointing the persons
indicated in Schedule III hereto, and each of them, as such Selling
Stockholder's attorneys-in-fact (the "ATTORNEYS-IN-FACT") with authority to
execute and deliver this Agreement on behalf of such Selling Stockholder,
to determine the purchase price to be paid by the Underwriters to the
Selling Stockholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Stockholder hereunder and
otherwise to act on behalf of such Selling Stockholder in connection with
the transactions contemplated by this Agreement and the Custody Agreement;
and
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(ix) The Shares held in custody for such Selling Stockholder under the
Custody Agreement are subject to the interests of the Underwriters
hereunder; the arrangements made by such Selling Stockholder for such
custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable;
the obligations of the Selling Stockholders hereunder shall not be
terminated by operation of law, whether by the death or incapacity of any
individual Selling Stockholder or, in the case of an estate or trust, by
the death or incapacity of any executor or trustee or the termination of
such estate or trust, or in the case of a partnership or corporation, by
the dissolution of such partnership or corporation, or by the occurrence of
any other event; if any individual Selling Stockholder or any such executor
or trustee should die or become incapacitated, or if any such estate or
trust should be terminated, or if any such partnership or corporation
should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, the Shares shall be delivered by or on
behalf of the Selling Stockholders in accordance with the terms and
conditions of this Agreement and of the Custody Agreements; and actions
taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be
as valid as if such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at a purchase price per share of
$..........., the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Firm Shares to be sold by each of the Selling Stockholders as set forth opposite
their respective names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from each of
the Selling Stockholders, at the purchase price per share set forth in clause
(a) of this Section 2, that portion of the number of Optional Shares as to which
such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
Shares by a fraction the numerator of which is the maximum number of Optional
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 600,000 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering sales of Stock in excess of the number of Firm Shares. Any such
election to purchase
10
Optional Shares shall be made in proportion to the number of Optional Shares set
forth opposite the name of such Selling Stockholder in Schedule II hereto. Any
such election to purchase Optional Shares may be exercised only by written
notice from you to the Attorneys-in-Fact, given within a period of 30 calendar
days after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares are
to be delivered, as determined by you but in no event earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, unless you and the
Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Selling Stockholders shall be delivered by or on behalf of the
Selling Stockholders to Xxxxxxx, Sachs & Co., through the facilities of DTC, for
the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Custodian to Xxxxxxx, Xxxxx &
Co. at least forty-eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the "DESIGNATED OFFICE"). The time and date of such delivery and payment shall
be, with respect to the Firm Shares, approximately 11:00 a.m., New York time, on
May , 2005 or such other time and date as Xxxxxxx, Sachs & Co. and the
Company may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York time, on the date specified by Xxxxxxx, Xxxxx & Co. in the
written notice given by Xxxxxxx, Sachs & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as Xxxxxxx, Xxxxx &
Co. and the Company may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the "FIRST TIME OF DELIVERY", such time and
date for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called the "SECOND TIME OF DELIVERY", and each such time and date for
delivery is herein called a "TIME OF DELIVERY".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(m) hereof, will be delivered at the
offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "CLOSING LOCATION"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at
the Closing Location at .......p.m., New York City time, on the New York
Business Day next preceding such Time of Delivery, at which meeting the
final drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "NEW YORK BUSINESS DAY" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
11
(a) To prepare the Prospectus in a form agreed to by you and the
Company and to file such Prospectus pursuant to Rule 424(b) under the Act
not later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Act; to make no further amendment or any supplement to the Registration
Statement or Prospectus prior to the last Time of Delivery which shall
reasonably be disapproved by you promptly after reasonable notice thereof;
to advise you, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish you with copies thereof; to advise you, promptly
after it receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may reasonably request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) As soon as practicable on the New York Business Day next
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with
the offering or sale of the Shares and if at such time any events shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon your
request to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance, and in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the Shares at any
time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
12
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date one year after the date of the Prospectus (the
"COMPANY LOCK-UP PERIOD"), not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any Stock or other
securities of the Company that are substantially similar to the Stock,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
other substantially similar securities (other than pursuant to employee
stock option plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent;
(f) Unless otherwise publicly available in electronic format on the
website of the Company or the Commission, to furnish to its stockholders as
soon as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries certified
by independent public accountants) and, as soon as practicable after the
end of each of the first three quarters of each fiscal year (beginning with
the fiscal quarter ending after the effective date of the Registration
Statement), to make available to its stockholders consolidated summary
financial information of the Company and its subsidiaries for such quarter
in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, unless otherwise publicly available in electronic
form on the Commission's website, to furnish to you copies of all reports
or other communications (financial or other) furnished to stockholders, and
to deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to
time reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to the
Commission);
(h) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(i) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating
13
the on-line offering of the Shares (the "LICENSE"); provided, however, that
the License shall be used solely for the purpose described above, is
granted without any fee and may not be assigned or transferred.
6. (a) Each Selling Stockholder severally covenants and agrees with the
Company, with each other Selling Stockholder and with the several Underwriters
that such Selling Stockholder will pay or cause to be paid a pro rata share
(based on the number of Shares sold by such Selling Stockholder pursuant to this
Agreement) of the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
the filing fees incident to securing any required review by the NASD of the
terms of the sale of the Shares; (iv) the cost of preparing stock certificates;
(v) 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 and
such Selling Stockholder hereunder which are not otherwise specifically provided
for in this Section; and (vi) to the extent any New York State transfer tax is
imposed on any of the Underwriters in connection with the offering of the Shares
as contemplated by this agreement, any New York State transfer taxes so imposed.
It is understood, however, that except as provided in this Section, and Sections
8 and 9 hereof, the Underwriters will pay all of their own costs and expenses
incident to the transactions contemplated herein, including the fees of their
counsel (including the fees and disbursements of such counsel incurred in
connection with the qualification of the Shares for offering and sale under
state securities laws as provided in Section 5(b) hereof and in connection with
any Blue Sky survey and the fees and disbursements of such counsel in connection
with securing any required review by the NASD of the terms of the sale of the
Shares), stock transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
14
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of
Delivery, in form and substance satisfactory to you, with respect to the
matters covered in paragraphs (i), (ii), (v), and (viii) and the paragraph
immediately following paragraph (ix) of subsection (c) below as well as
such other related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxx Xxxx & Xxxxxxxx, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Annex II(c) hereto), in form and substance satisfactory to you, dated
such Time of Delivery, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; and the Shares conform to the
description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign
corporation (either under its name or a fictitious name) for the
transaction of business and is in good standing under the laws of the
State of New York;
(iv) Xxxxxxxxx U.S. has been duly formed or organized and is
validly existing as a limited liability company in good standing under
the laws of the State of New York; and all of the limited liability
company membership interests of Xxxxxxxxx U.S. have been duly and
validly authorized and issued and, to the best of such counsel's
knowledge, are owned directly or indirectly by the Company, in each
case free and clear of all liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries);
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi) To the best of such counsel's knowledge, no Authorization is
required to be obtained or made by the Company or any of its
subsidiaries from, to or with any Official Body under U.S. federal
law, the law of the State of New York or the General Corporation Law
of Delaware that in such counsel's experience is normally applicable
to general business entities in relation to transactions of the type
contemplated by this Agreement for the issue and sale of the Shares or
the consummation of the transactions contemplated by this Agreement,
except for (i) the registration of the Shares under the Act and the
Exchange Act, (ii) such Authorizations the absence of which would not
have a Material Adverse Effect or interfere materially with the
15
consummation of the transactions contemplated by this Agreement and
(iii) such Authorizations as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(vii) The statements relating to legal matters or documents set
forth in the Prospectus under the captions "Description of Capital
Stock" and "Taxation", insofar as they purport to describe the
provisions of the laws and documents referred to therein, fairly
summarize in all material respects such matters or documents;
(viii) The Company is not, and after giving effect to the
offering and sale of the Shares in accordance with the Underwriting
Agreement will not be, an "investment company", as such term is
defined in the Investment Company Act; and
(ix) Xxxxxxxxx Capital Partners, LLC ("GCP LLC"), a Delaware
limited liability company, is duly registered as an investment adviser
under the Investment Advisers Act.
Such counsel shall also state that they have not themselves checked
the accuracy, completeness or fairness of, or otherwise verified, the
information furnished with respect to other matters in the Registration
Statement or the Prospectus; they have generally reviewed and discussed
with your representatives and with certain officers and employees of, and
counsel and independent public accountants for, the Company, the
information furnished, whether or not subject to such counsel's check and
verification; on the basis of such consideration, review and discussion,
but without independent check or verification, except as referred to in
subsection (vii) of this Section 7(c), nothing has come to the attention of
such counsel that causes them to believe that (i) the Registration
Statement or the Prospectus or any further amendment or supplement thereto
made prior to such Time of Delivery (except for the financial statements
and schedules and other financial data included therein, as to which we
express no belief), on the date of this Agreement, do not comply as to form
in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Registration Statement or the Prospectus or any such amendment or
supplement (except for the financial statements and schedules and other
financial data included therein, as to which we express no belief), on the
date of this Agreement contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or (iii) the Prospectus or
any such amendment or supplement (except for the financial statements and
schedules and other financial data included therein, as to which we express
no belief), on the date of this Agreement or on the date hereof, contained
or contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the Federal laws of
the United States, the laws of the State of New York and the General
Corporation Law of Delaware. Such counsel may assume the any registration
statement filed pursuant to Rule 462(b) became effective prior to the time
that any sale of the Shares was confirmed by the Underwriters and such
counsel may state that it is outside counsel and that its knowledge of the
matters covered in paragraphs
16
(iv), (vii) and (viii) is necessarily limited. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied
upon certificates of officers of Xxxxxxxxx and its subsidiaries,
certificates of public officials and other sources.
(d) Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, regulatory counsel for
Xxxxxxxxx U.S., shall have furnished to you their written opinion (a draft
of such opinion is attached as Annex II(d) hereto), in form and substance
satisfactory to you, dated such Time of Delivery, to the effect that:
(i) Xxxxxxxxx U.S. is duly registered as a broker-dealer under
the Exchange Act and the rules and regulations promulgated by the
Commission thereunder and is a member of the NASD; and
(ii) Xxxxxxxxx U.S. is duly licensed, registered or qualified as
a broker-dealer in all fifty (50) states and the District of Columbia.
(e) Linklaters, English counsel to Xxxxxxxxx International, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Annex II(e) hereto), in form and substance satisfactory to you, dated
such Time of Delivery, to the effect that:
(i) Xxxxxxxxx International is a limited liability partnership
duly incorporated and existing under the laws of England and Wales;
and
(ii) Xxxxxxxxx International is duly authorized by the Financial
Services Authority (the "FSA") to conduct the following business (all
as defined by the FSA): (A) to advise on investments (excluding
Pension Transfers and Pension Opt Outs (as defined by the FSA)), (B)
to agree to carry on a regulated activity, (C) to arrange deals in
investments, and (D) to make arrangements with a view to transactions
in investments; no additional Authorizations from, to or with the FSA
or any other Official Body in the United Kingdom are required to be
obtained or made in order for Xxxxxxxxx International to conduct its
investment businesses as described in the Prospectus;
(f) Linklaters Oppenhoff & Xxxxxx, German counsel to Xxxxxxxxx
International, shall have furnished to you their written opinion in the
form attached as Annex II(f) hereto, dated such Time of Delivery, to the
effect that:
(i) To the best of such counsel's knowledge, Xxxxxxxxx
International has all Authorizations that are required to be obtained
or made under the law of Germany in order for it to conduct its
business in Germany as described in the Prospectus.
(g) Xxxxxx Xxxxx, General Counsel of the Company, shall have furnished
to you her written opinion (a draft of such opinion is attached as Annex
II(g) hereto), in form and substance satisfactory to you, dated such Time
of Delivery, to the effect that:
(i) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company
17
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and,
to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(ii) The sale of the Shares being delivered at such Time of
Delivery by the Selling Stockholders and the compliance by the Company
with all of the provisions of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its Specified Subsidiaries is a party
or by which the Company or any of its Specified Subsidiaries is bound
or to which any of the property or assets of the Company or any of its
Specified Subsidiaries is subject, except for such conflicts, breaches
or violations as have been duly waived or would not, individually or
in the aggregate, have a Material Adverse Effect or interfere with the
consummation of the transactions contemplated by this Agreement, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
provision of U.S. federal law, New York state law, or the General
Corporation Law of Delaware that in such counsel's experience is
normally applicable to general business entities in relation to the
transactions contemplated by this Agreement or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its Specified
Subsidiaries or any of their properties; and
(iii) Neither the Company nor any of its Specified Subsidiaries
is in violation of its Certificate of Incorporation or By-laws (or
other organizational documents) or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, or lease or agreement or other instrument to which it is a
party or by which it or any of its properties is bound.
Such counsel shall also state that she has not herself checked the
accuracy, completeness or fairness of, or otherwise verified, the
information furnished with respect to other matters in the Registration
Statement or the Prospectus; she has generally reviewed and discussed with
your representatives and with certain officers and employees of, and
outside counsel and independent public accountants for, the Company, the
information furnished, whether or not subject to such counsel's check and
verification; on the basis of such consideration, review and discussion,
but without independent check or verification, nothing has come to the
attention of such counsel that causes her to believe that (i) the
Registration Statement or the Prospectus or any such amendment or
supplement (except for the financial statements and schedules and other
financial data included therein, as to which she expresses no belief), on
the date of this Agreement contained any untrue statement of a material
fact or omitted to
18
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) the Prospectus or any such
amendment or supplement (except for the financial statements and schedules
and other financial data included therein, as to which she expresses no
belief), on the date of this Agreement or on the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(h) Xxxxx Xxxx & Xxxxxxxx, counsel for each of the Selling
Stockholders, shall have furnished to you its written opinion with respect
to each of the Selling Stockholders (a draft of such opinion is attached as
Annex II(h) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) Assuming due authorization by each Selling Stockholder of its
Power-of-Attorney and Custody Agreement, under applicable law, such
Power-of-Attorney and such Custody Agreement have been duly executed
and delivered by each Selling Stockholder who is identified on
Schedule IV (the "SCHEDULE IV SELLING STOCKHOLDERS") and constitute
valid and binding agreements of such Selling Stockholder in accordance
with their terms;
(ii) Assuming due authorization by each Schedule IV Selling
Stockholder of this Agreement under applicable law, this Agreement has
been duly executed and delivered by or on behalf of each Schedule IV
Selling Stockholder; and
(iii) Upon payment for the Shares to be sold at such Time of
Delivery by such Selling Stockholder as provided in this Agreement,
and the crediting of such Shares on the records of DTC to securities
accounts in the name of the Underwriters, (A) DTC shall be a
"protected purchaser" (within the meaning of Section 8-303 of the
Code), (B) the Underwriters will acquire a valid "security
entitlement" (within the meaning of Section 8-501 of the Code) in
respect of such Shares and (C) no action based on any "adverse claim"
(within the meaning of Section 8-102 of the Code) may be asserted
against the Underwriters with respect to such security entitlement
(assuming that DTC and the Underwriters are without notice of any such
adverse claim within the meaning of Section 8-105 of the Code); and in
rendering this opinion, counsel for the Selling Stockholders may
assume that when such payment, delivery and crediting occur, (x) such
Shares will have been registered in the name of Cede or another
nominee designated by DTC, in each case on the Company's share
registry in accordance with its certificate of incorporation, bylaws
and applicable law, (y) DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the Code and (z)
appropriate entries to the account(s) of the Underwriters on the
records of DTC will have been made pursuant to the Code.
(i) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, Ernst &
Young shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to
the effect set forth in Annex I hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Annex
I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto);
19
(j) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the 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 Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus 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, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representative
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(k) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of Xxxxxxx X. Key, Xxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxxxxxx and Xxxxxx Xxxxx, substantially to the effect
set forth in Subsection 1(b)(v) hereof in form and substance satisfactory
to you;
(l) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the
United States; (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or
any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(m) The Shares at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the Exchange;
(n) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and of the Selling Stockholders, respectively,
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders, respectively,
herein at and as of such Time of Delivery, as to the performance by the
Company and the Selling Stockholders of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as to
such other matters as you may reasonably request, and the Company shall
20
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (f) of this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Sachs & Co. expressly for use therein.
(b) Each of the Selling Stockholders will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that such
Selling Stockholder shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein.
21
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities
to which the Company or such Selling Stockholder may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein;
and will reimburse the Company and each Selling Stockholder for any legal
or other expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any such action
or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a) ,(b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and the Underwriters on the other
22
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection
(d) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (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 Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before deducting expenses) received by the Company and the
Selling Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Selling Stockholders on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company, each of the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section 8 shall be in addition to any liability which the Company and
the respective Selling Stockholders may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or
23
another party or other parties to purchase such Shares on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Shares, then the Company shall be entitled
to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Shares, or the Company
notifies you that it has so arranged for the purchase of such Shares, you or the
Company shall have the right to postpone a Time of Delivery for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Shares, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the number of Shares
which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, or if
the Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the
Second Time of Delivery, the obligations of the Underwriters to purchase
and of the Selling Stockholders to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except for the
expenses to be borne by the Company and the Selling Stockholders and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
24
11. If this Agreement shall be terminated pursuant to Section 9 or
paragraphs (i), (iii), (iv) or (v) of Section 7(l) hereof, neither the Company
nor the Selling Stockholders shall then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but, if for any other
reason any Shares are not delivered by or on behalf of the Selling Stockholders
as provided herein, the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company and the Selling Stockholders shall then be under no further
liability to any Underwriter in respect of the Shares not so delivered except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for such Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by you on request; provided, however, that notices under subsection
5(e) shall be in writing, and if to the Underwriters shall be delivered or sent
by mail, telex or facsimile transmission to you as the representative at
Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Control Room. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
25
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
17. Notwithstanding anything herein to the contrary, the Company and the
Selling Stockholders are authorized to disclose to any persons the U.S. federal
and state income tax treatment and tax structure of the potential transaction
and all materials of any kind (including tax opinions and other tax analyses)
provided to the Company and the Selling Stockholders relating to that treatment
and structure, without the Underwriters imposing any limitation of any kind.
However, any information relating to the tax treatment and tax structure shall
remain confidential (and the foregoing sentence shall not apply) to the extent
necessary to enable any person to comply with securities laws. For this purpose,
"tax structure" is limited to any facts that may be relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholders for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
26
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Xxxxxxxxx & Co., Inc.
By:
Name:
Title:
[NAMES OF SELLING STOCKHOLDERS]
By:
Name:
Title:
As Attorney-in-Fact acting on behalf of
each of the Selling Stockholders named
in Schedule II to this Agreement.
Accepted as of the date hereof
------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
27
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
Xxxxxxx, Xxxxx & Co.
UBS Securities LLC
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Wachovia Capital Markets, LLC
--------------- ------------------
Total
=============== ==================
28
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- ------------------
The Company.
The Selling Stockholder(s):
[NAME OF SELLING STOCKHOLDER](a)
[NAME OF SELLING STOCKHOLDER](b)
[NAME OF SELLING STOCKHOLDER](c)
[NAME OF SELLING STOCKHOLDER](d)
[NAME OF SELLING STOCKHOLDER](e)
--------------- ------------------
Total (7)]
=============== ==================
(a) This Selling Stockholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
(b) This Selling Stockholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
(d) This Selling Stockholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
(e) This Selling Stockholder is represented by [NAME AND ADDRESS OF COUNSEL] and
has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS THAN TWO)], and each of
them, as the Attorneys-in-Fact for such Selling Stockholder.
29
SCHEDULE III
Xxxxxx Xxxxx
Xxxx X. Xxx
SCHEDULE IV
SCHEDULE IV SELLING STOCKHOLDERS:
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) audited by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated statements of
financial condition, consolidated statements of members' equity and
stockholders' equity and consolidated statements of cash flows included in
the Prospectus on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus agrees,
where applicable, with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such five
fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302 and 402, respectively,
of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated statements of financial condition, consolidated
statements of members' equity and stockholders' equity and
consolidated statements of cash flows included in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations, or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income, consolidated
statements of financial condition, consolidated statements of members'
equity and stockholders' equity and consolidated statements of cash
flows included in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and condition
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and financial condition items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or stockholders' equity, in each
case as compared with amounts shown in the latest statement of
financial condition included in the Prospectus, except in each case
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(E) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of
2
consolidated net income, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representative, except in each
case for decreases or increases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and
(vi) above, they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information, which are derived from the general accounting records of the
Company and its subsidiaries, which appear in the Prospectus, as amended or
supplemented, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representative, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries or computations made
therefrom, excluding any questions of legal interpretation, and have found
them to be in agreement.
3
