EXHIBIT 1.2
20,000,000 Shares
NATIONAL EQUIPMENT SERVICES, INC.
Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
------------------------------------
June , 1998
XXXXXXX XXXXX XXXXXX INTERNATIONAL
XXXXX XXXXXX INC.
XXXXXXX XXXXX & COMPANY
CREDIT SUISSE FIRST BOSTON
XXXXXXXXX, LUFKIN & XXXXXXXX
INTERNATIONAL
NATIONSBANC XXXXXXXXXX SECURITIES LLC
As Lead Managers of the Several Managers
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
National Equipment Services, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 3,333,333 shares of its
common stock, par value $0.01 per share, and the persons named in Schedule I
hereto (the "Selling Stockholders") propose to sell an aggregate of 666,667
shares of common stock of the Company (together with the 3,333,333 shares of
common stock to be issued and sold by the Company, the "Firm Shares") to the
several Managers named in Schedule II hereto (the "Managers") for whom Xxxxx
Xxxxxx Inc., Xxxxxxx Xxxxx & Company, L.L.C., Credit Suisse First Boston
(Europe) Limited, Xxxxxxxxx, Lufkin & Xxxxxxxx International and NationsBanc
Xxxxxxxxxx Securities LLC are acting as Lead Managers (the "Lead Managers"). In
addition, solely for the purpose of covering over-allotments, the Selling
Stockholders propose to sell to the Managers, upon the terms and conditions set
forth in Section 2 hereof, up to an additional 600,000 shares (the "Additional
Shares") of the Company's common stock. The Company and the Selling
Stockholders are hereinafter sometimes referred to as the "Sellers." The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares." The Company's common stock, par value
$0.01 per share, including the Shares and the U.S. Shares (as defined herein),
is hereinafter referred to as the "Common Stock."
It is understood that the Company and the Selling Stockholders are
concurrently entering into an U.S. Underwriting Agreement, dated the date hereof
(the "U.S. Underwriting Agreement"), providing for the sale of 16,000,000 shares
of the Common Stock (the "Firm U.S. Shares"), of which 13,333,334 shares will be
sold by the Company and 2,666,666 will be sold by the Selling Stockholders (plus
an option granted by the Selling Stockholders to purchase up to an additional
2,400,000 shares of Common Stock (the "Additional U.S. Shares") solely for the
purpose of covering over-allotments) through arrangements with certain
underwriters in the United States and Canada (the "U.S. Underwriters"), for whom
Xxxxx Xxxxxx Inc., Xxxxxxx Xxxxx & Company, L.L.C., Credit Suisse First Boston
Corporation, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and NationsBanc
Xxxxxxxxxx Securities LLC are acting as representatives (the "Representatives").
All shares of Common Stock proposed to be offered to the U.S. Underwriters
pursuant to the U.S. Underwriting Agreement, including the Firm U.S. Shares and
the Additional U.S. Shares, are herein called the "U.S. Shares;" the U.S. Shares
and the Shares, collectively, are herein called the "Underwritten Shares."
The Company and the Selling Stockholders also understand that the Lead
Managers and the Representatives have entered into an agreement (the "Agreement
Between U.S. Underwriters and Managers") contemplating the coordination of
certain transactions between the Managers and the U.S. Underwriters and that,
pursuant thereto and subject to the conditions set forth therein, the Managers
may purchase from the U.S. Underwriters a portion of the U.S. Shares or sell to
the U.S. Underwriters a portion of the Shares. The Company and the Selling
Stockholders understand that any such purchases and sales between the Managers
and the U.S. Underwriters shall be governed by the Agreement Between U.S.
Underwriters and Managers and shall not be governed by the terms of this
Agreement or the U.S. Underwriting Agreement.
The Company has entered into a Stock Purchase Agreement (the "Stock
Purchase Agreement") dated as of April 1, 1998, as amended, by and among the
Company, Falconite, Inc. and the stockholders of Falconite, Inc. Unless the
context otherwise requires, all references to "Falconite" in this Agreement
refer to Falconite, Inc. and its subsidiaries. The Stock Purchase Agreement
provides that, subject to certain conditions as described therein, the Company
will acquire all of the common stock of Falconite (the "Acquisition") for a
purchase price of $65,750,000. A portion of the proceeds to the Company from
the sale to the U.S. Underwriters and Managers of the Common Stock will be used
to fund the Acquisition concurrent with such sale.
The Company and the Selling Stockholders wish to confirm as follows
their respective agreements with you and the other several Managers on whose
behalf you are acting, in connection with the several purchases of the Shares by
the Managers.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with
2
the provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Act"), a
registration statement on Form S-1, including prospectuses subject to
completion, relating to the Underwritten Shares. The term "Registration
Statement" as used in this Agreement means the registration statement (including
all financial schedules and exhibits), as amended at the time it becomes
effective, and as thereafter amended by post-effective amendment. The term
"Prospectuses" as used in this Agreement means the prospectuses in the forms
included in the Registration Statement, or, if the prospectuses included in the
Registration Statement omit information in reliance on Rule 430A under the Act
and such information is included in prospectuses filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectuses" as used in this
Agreement means the prospectuses in the forms included in the Registration
Statement as supplemented by the addition of the Rule 430A information contained
in the prospectuses filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectuses" as used in this Agreement means the prospectuses
subject to completion in the forms included in the Registration Statement at the
time of the initial filing of the Registration Statement with the Commission,
and as such prospectuses shall have been amended from time to time prior to the
date of the Prospectuses.
It is understood that two forms of Prepricing Prospectus and two forms
of Prospectus are to be used in connection with the offering and sale of the
Underwritten Shares: a Prepricing Prospectus and a Prospectus relating to the
U.S. Shares that are to be offered and sold in the United States (as defined
herein) or Canada (as defined herein) to U.S. or Canadian Persons (the "U.S.
Prepricing Prospectus" and the "U.S. Prospectus," respectively), and a
Prepricing Prospectus and a Prospectus relating to the Shares which are to be
offered and sold outside the United States or Canada to persons other than U.S.
or Canadian Persons (the "International Prepricing Prospectus" and the
"International Prospectus," respectively). The U.S. Prospectus and the
International Prospectus are herein collectively called the "Prospectuses," and
the U.S. Prepricing Prospectus and the International Prepricing Prospectus are
herein called the "Prepricing Prospectuses." For purposes of this Agreement:
"Rules and Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as applicable; "U.S. or Canadian Person" means any
resident or national of the United States or Canada, any corporation,
partnership or other entity created or organized in or under the laws of the
United States or Canada or any estate or trust the income of which is subject to
United States or Canadian income taxation regardless of the source of its income
(other than the foreign branch of any U.S. or Canadian Person), and includes any
United States or Canadian branch of a person other than a U.S. or Canadian
Person; "United States" means the United States of America (including the states
thereof and the District of Columbia) and its territories, its possessions and
other areas subject to its jurisdiction; and "Canada" means Canada and its
territories, its possessions and other areas subject to its jurisdiction.
2. Agreements to Sell and Purchase. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein and to such adjustments as you may
determine to avoid fractional shares, the Company hereby agrees to issue and
sell to each Manager and each Manager agrees, severally and not
3
jointly, to purchase from the Company, at a purchase price of $_____ per share
(the "purchase price per share"), the number of Firm Shares that bears the same
proportion to the aggregate number of Firm Shares to be issued and sold by the
Company as the number of Firm Shares set forth opposite the name of such Manager
in Schedule II hereto (or such number of Firm Shares increased as set forth in
Section 12 hereof) bears to the aggregate number of Firm Shares to be sold by
the Company and the Selling Stockholders.
Upon the basis of the representations, warranties and agreements
contained herein and subject to all the terms and conditions set forth herein
and to such adjustments as you may determine to avoid fractional shares, each
Selling Stockholder agrees, severally and not jointly, to sell to each Manager
and each Manager agrees, severally and not jointly, to purchase from each
Selling Stockholder, at the purchase price per share, the number of Firm Shares
that bears the same proportion to the number of Firm Shares set forth opposite
the name of such Selling Stockholder in Schedule I hereto as the number of Firm
Shares set forth opposite the name of such Manager in Schedule II hereto (or
such number of Firm Shares increased as set forth in Section 12 hereof) bears to
the aggregate number of Firm Shares to be sold by the Company and the Selling
Stockholders.
Upon the basis of the representations, warranties and agreements
contained herein and subject to all the terms and conditions set forth herein,
the Selling Stockholders also agree to sell to the Managers, and the Managers
shall have the right to purchase from the Selling Stockholders, at the purchase
price per share, pursuant to an option (the "over-allotment option") which may
be exercised prior to 5:00 p.m., New York City time, on the 30th day after the
date of the International Prospectus (or, if such 30th day shall be a Saturday
or Sunday or a holiday, on the next business day thereafter when the New York
Stock Exchange is open for trading), up to an aggregate of 600,000 Additional
Shares. The maximum number of Additional Shares that each Selling Stockholder
agrees to sell upon the exercise by the Managers of the over-allotment option is
set forth opposite their respective names in Schedule I hereto. The number of
Additional Shares that the Managers elect to purchase upon any exercise of the
over-allotment option shall be provided by each Selling Stockholder in
proportion to the respective maximum number of Additional Shares that each
Selling Stockholder has agreed to sell. Additional Shares may be purchased only
for the purpose of covering over-allotments made in connection with the offering
of the Firm Shares. Upon any exercise of the over-allotment option, each
Manager, severally and not jointly, agrees to purchase from each Selling
Stockholder the number of Additional Shares (subject to such adjustments as you
may determine in order to avoid fractional shares) that bears the same
proportion to the number of Additional Shares to be sold by such Selling
Stockholder as the number of Firm Shares set forth opposite the name of such
Manager in Schedule II hereto (or such number of Firm Shares increased as set
forth in Section 12 hereof) bears to the aggregate number of Firm Shares to be
sold by the Company and the Selling Stockholders.
Each Manager represents, warrants, covenants and agrees that, except
as contemplated under Section 2 of the Agreement Between U.S. Underwriters and
Managers dated the date hereof, (i) it is not purchasing any Shares for the
account of any U.S. or Canadian Person
4
and (ii) it has not offered or sold, and will not offer, sell, resell or
deliver, directly or indirectly, any Shares or distribute any International
Prospectus in the United States or Canada or to any U.S. or Canadian Person.
3. Terms of Public Offering. The Sellers have been advised by you that
the Managers propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the International Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the
Managers of and payment for the Firm Shares shall be made at the office of Xxxxx
Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York
City time, on , 1998 (the "Closing Date"). The place of closing
for the Firm Shares and the Closing Date may be varied by agreement among you,
the Company and Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P. ("Xxxxxx Xxxxx Fund
V").
Delivery to the Managers of and payment for any Additional Shares
to be purchased by the Managers shall be made at the aforementioned office of
Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing Date"), which
may be the same as the Closing Date but shall in no event be earlier than the
Closing Date nor earlier than two nor later than ten business days after the
giving of the notice hereinafter referred to, as shall be specified in a written
notice from you on behalf of the Managers to the Selling Stockholders of the
Managers' determination to purchase a number, specified in such notice, of
Additional Shares. The place of closing for any Additional Shares and the Option
Closing Date for such Shares may be varied by agreement among you and Xxxxxx
Xxxxx Fund V.
Certificates for the Firm Shares and for any Additional Shares to be
purchased hereunder shall be registered in such names and in such denominations
as you shall request by written notice prior to 9:30 A.M., New York City time,
on the second business day preceding the Closing Date or any Option Closing
Date, as the case may be. Such certificates shall be made available to you in
New York City for inspection and packaging not later than 9:30 A.M., New York
City time, on the business day next preceding the Closing Date or the Option
Closing Date, as the case may be. The certificates evidencing the Firm Shares
and any Additional Shares to be purchased hereunder shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, against payment
of the purchase price therefor by wire transfer in immediately available funds.
5. Agreements of the Company. The Company agrees with the several
Managers as follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will
5
advise you promptly and, if requested by you, will confirm such advice in
writing, when the Registration Statement or such post-effective amendment has
become effective.
(b) The Company will advise you promptly after it becomes aware
thereof and, if requested by you, will confirm such advice in writing: (i) of
any request by the Commission for amendment of or a supplement to the
Registration Statement, any Prepricing Prospectuses or the Prospectuses or for
additional information; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the period of
time referred to in paragraph (f) below, of any material adverse change, or any
development involving a prospective material adverse change, in or affecting
general affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole, or of the
happening of any event, including the filing of any information, documents or
reports pursuant to the Exchange Act that, in the case of this clause (iii),
makes any statement of a material fact made in the Registration Statement or the
Prospectuses (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectuses (as then amended or supplemented) in order to state a material fact
required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectuses (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, six signed copies
of the Registration Statement as originally filed with the Commission and of
each amendment thereto, including financial statements and all exhibits to the
Registration Statement and will also furnish to you, without charge, such number
of conformed copies of the Registration Statement as originally filed and of
each amendment thereto, but without exhibits, as you may reasonably request.
(d) The Company will not (i) file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectuses of which you
shall not previously have been advised or to which you shall reasonably object
in writing after being so advised or (ii) so long as, in the written opinion of
counsel for the Managers (a copy of which shall be delivered to the Company), a
prospectus is required to be delivered in connection with sales by any Manager
or dealer, file any information, documents or reports pursuant to the Exchange
Act, without delivering a copy of such information, documents or reports to you,
as Lead Managers of the Managers, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the Company
has delivered or will deliver to you, without charge, in such quantities as you
have reasonably requested or may hereafter reasonably request, copies of each
form of the International
6
Prepricing Prospectus. The Company consents to the use, in accordance with the
provisions of the Act and with the securities laws of the jurisdictions in which
the Shares are offered by the several Managers and by dealers, prior to the date
of the International Prospectus, of each International Prepricing Prospectus so
furnished by the Company.
(f) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as in the written
opinion of counsel for the Managers an International Prospectus is required by
the Act to be delivered in connection with sales by any Manager or dealer, the
Company will expeditiously deliver to each Manager and each dealer, without
charge, as many copies of the International Prospectus (and of any amendment or
supplement thereto) as you may reasonably request. The Company consents to the
use of the International Prospectus (and of any amendment or supplement thereto)
in accordance with the provisions of the Act and with the securities laws of the
jurisdictions in which the Shares are offered by the several Managers and by all
dealers to whom Shares may be sold, both in connection with the offering and
sale of the Shares and for such period of time thereafter as the International
Prospectus is required by the Act to be delivered in connection with sales by
any Manager or dealer. If during such period of time any event shall occur that
in the judgment of the Company or in the written opinion of counsel for the
Managers is required to be set forth in the International Prospectus (as then
amended or supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
International Prospectus to comply with the Act or any other law, the Company
will forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate supplement or amendment thereto and will
expeditiously furnish to the Managers and dealers a reasonable number of copies
thereof.
(g) The Company will cooperate with you and with counsel for the
Managers in connection with the registration or qualification of the Shares for
offering and sale by the several Managers and by dealers under the securities
laws of such jurisdictions as you may reasonably designate and will file such
consents to service of process or other documents necessary or appropriate in
order to effect such registration or qualification; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, covering a twelve-
month period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as reasonably
practicable after the end of such period, which consolidated earnings statement
shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company will
furnish to you (i) as soon as available, a copy of each report of the Company
mailed to stockholders or filed
7
with the Commission or the New York Stock Exchange, and (ii) from time to time
such other information concerning the Company as you may reasonably request.
(j) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 12 hereof or by notice given by you terminating this
Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Managers because of any failure or refusal on the
part of the Company or any of the Selling Stockholders to comply, in any
material respect, with the terms or fulfill, in any material respect, any of the
conditions of this Agreement, the Company agrees to reimburse the Lead Managers
for all reasonable out-of-pocket expenses (including reasonable fees and
expenses of counsel for the Managers) incurred by you in connection herewith.
(k) The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder substantially in accordance with the
description set forth in the Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will timely file
the Prospectuses pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing.
(m) For a period of 180 days after the date of the Prospectuses (the
"Lock-up Period"), the Company will not, without the prior written consent of
Xxxxx Xxxxxx Inc., offer, sell, contract to sell or otherwise dispose of any
Common Stock (or any securities convertible into or exercisable or exchangeable
for Common Stock) or grant any options or warrants to purchase Common Stock,
except for (i) sales to the Managers pursuant to this Agreement and the U.S.
Underwriters pursuant to the U.S. Underwriting Agreement, (ii) the grant of
employee stock options pursuant to the Company's long term incentive plans as
described in the Prospectuses, (iii) the issuance of Common Stock upon exercise
of any such employee stock options and (iv) the issuance of Common Stock in
connection with the Company's acquisitions of other companies or businesses;
provided, however, that the Company will furnish to you "lock-up" letters, in
form and substance reasonably satisfactory to you, signed by each recipient of
Common Stock or stock options issued or granted pursuant to clause (ii), (iii)
or (iv) of this sentence.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by each of its
current officers and directors and each of its stockholders designated by you.
(o) Except as stated in this Agreement and in the U.S. Underwriting
Agreement and in the Prepricing Prospectuses and Prospectuses, the Company has
not taken, nor will it take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Shares.
8
(p) The Company will use its best efforts to have the Common Stock
listed, subject to notice of issuance, on the New York Stock Exchange
concurrently with the effectiveness of the registration statement.
6. Agreements of the Selling Stockholders. Each of the Selling
Stockholders agrees, severally and not jointly, with the several Managers as
follows:
(a) Such Selling Stockholder will cooperate to the extent necessary to
cause the registration statement or any post-effective amendment thereto to
become effective at the earliest possible time.
(b) Such Selling Stockholder will pay all Federal and other taxes, if
any on the transfer or sale of such Shares that are sold by the Selling
Stockholder to the Managers.
(c) Such Selling Stockholder will use such Selling Stockholder's
reasonable best efforts to do or perform all things reasonably required to be
done or performed by it prior to the Closing Date to satisfy all conditions
precedent to the delivery of the Shares pursuant to this Agreement.
(d) Such Selling Stockholder has executed or will execute a "lock-up"
letter as provided in Section 5(n) above and will not sell, contract to sell or
otherwise dispose of any Common Stock, except for the sale of Shares to the
Managers pursuant to this Agreement and the sale of U.S. Shares to the U.S.
Underwriters pursuant to the U.S. Underwriting Agreement, prior to the
expiration of 180 days after the date of the Prospectuses, without the prior
written consent of Xxxxx Xxxxxx Inc.
(e) Except as stated in this Agreement and the U.S. Underwriting
Agreement and in the Prepricing Prospectuses and the Prospectuses, such Selling
Stockholder has not taken, nor will it take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock to facilitate the
sale or resale of the Shares.
(f) Such Selling Stockholder agrees to notify you as promptly as
practicable of any information that comes to such Selling Stockholder's
attention that would cause such Selling Stockholder to have reason to believe
that its representations, warranties and statements in this Agreement are not
accurate in all material respects.
7. Representations and Warranties of the Company. The Company
represents and warrants to each Manager that:
(a) Each International Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act; except that
this representation and warranty does not apply to statements in or omissions
from such International Prepricing Prospectus (or any amendment or supplement
9
thereto) made in reliance upon and in conformity with information relating to
any Selling Stockholder or to any Manager or U.S. Underwriter furnished to the
Company in writing by a Manager through the Lead Managers or by a U.S.
Underwriter through the Representatives expressly for use therein. The
Commission has not issued any order preventing or suspending the use of any
Prepricing Prospectus.
(b) The Registration Statement in the form in which it became or
becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectuses and any supplement
or amendment thereto when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the provisions of the
Act and will not at any such times contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; except that this representation
and warranty does not apply to statements in or omissions from the Registration
Statement or the Prospectuses made in reliance upon and in conformity with
information relating to any Selling Stockholder or to any Manager or U.S.
Underwriter furnished to the Company in writing by a Manager through the Lead
Managers or by a U.S. Underwriter through the Representatives expressly for use
therein.
(c) All the outstanding shares of Class A Common Stock (as defined in
the Prospectuses), Class B Common Stock and Common Stock, as the case may be, of
the Company have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; the Shares to be
issued and sold by the Company have been duly authorized and, when issued and
delivered to the Managers against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and free of any
preemptive or similar rights; and the capital stock of the Company, before and
after giving effect to the Reclassification, conforms in all material respects
to the description thereof in the Registration Statement and the Prospectuses .
(d) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectuses, and is
duly registered and qualified to conduct its business and is in good standing in
each jurisdiction where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not have a material adverse effect, or involve a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company, the Subsidiaries (as hereinafter defined) and, after giving effect
to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite, taken as a whole (a "Material Adverse Effect").
(e) All the Company's subsidiaries (collectively, the "Subsidiaries")
are listed in an exhibit to the Registration Statement. Each Subsidiary is, and
after giving effect to the Acquisition pursuant to the terms of the Stock
Purchase Agreement, Falconite will be, a corporation duly organized, validly
existing and in good standing in the jurisdiction of its
10
incorporation, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is, and after giving effect to the Acquisition
pursuant to the terms of the Stock Purchase Agreement, Falconite will be, duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
so to register or qualify does not have a Material Adverse Effect; all the
outstanding shares of capital stock of each of the Subsidiaries have been, and
after giving effect to the Acquisition pursuant to the terms of the Stock
Purchase Agreement, all the outstanding shares of capital stock of Falconite
will have been duly authorized and validly issued, are or will be fully paid and
nonassessable, and are or will be owned by the Company directly, or indirectly
through one of the other Subsidiaries, free and clear of any lien, adverse
claim, security interest, equity or other encumbrance, except pursuant to and
otherwise permitted by the Credit Facility (as defined in the Prospectuses) as
described in the Prospectuses.
(f) Schedule III hereto lists the only jurisdictions or places where
the nature of the properties or the conduct of the businesses of the Company,
the Subsidiaries and, after giving effect to the Acquisition pursuant to the
terms of the Stock Purchase Agreement, Falconite requires the Company, the
Subsidiaries and, after giving effect to the Acquisition pursuant to the terms
of the Stock Purchase Agreement, Falconite to be duly registered, qualified and
in good standing, except where the failure to so register, qualify or be in good
standing would not have a Material Adverse Effect.
(g) There are no, and after giving effect to the Acquisition pursuant
to the terms of the Stock Purchase Agreement, there will not be any legal or
governmental proceedings pending or, to the knowledge of the Company, overtly
threatened, against the Company or any of the Subsidiaries which are or will be
materially adverse to the Company, its Subsidiaries and, after giving effect to
the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite, taken as a whole, or to which the Company or any of the Subsidiaries
and Falconite, or to which any of their respective properties, is subject which
are material to the Company, its Subsidiaries and, after giving effect to the
Acquisition pursuant to the terms of the Stock Purchase Agreement, Falconite,
taken as a whole, that are required to be described in the Registration
Statement or the Prospectuses but are not described as required, and there are
no agreements, contracts, indentures, leases or other instruments relating to
the Company that are required to be described in the Registration Statement or
the Prospectuses or to be filed as an exhibit to the Registration Statement that
are not described or filed as required by the Act or the Exchange Act. The
descriptions of the terms of any such contracts or documents contained in the
Registration Statement or the Prospectuses are correct in all material respects.
Neither the Company nor any Subsidiary is, and after giving effect to the
Acquisition pursuant to the terms of the Stock Purchase Agreement, Falconite
will not be involved in any strike, job action or labor dispute with any group
of employees, and, to the Company's knowledge, no such action or dispute is
overtly threatened.
11
(h) Neither the Company nor any of the Subsidiaries is, and after
giving effect to the Acquisition pursuant to the terms of the Stock Purchase
Agreement, Falconite will not be, (i) in violation of its certificate or
articles of incorporation or by-laws, or other organizational documents, or of
any law, ordinance, administrative or governmental rule or regulation applicable
to the Company or any of the Subsidiaries or Falconite or of any decree of any
court or governmental agency or body having jurisdiction over the Company or any
of the Subsidiaries or Falconite (except where any such violation or violations
in the aggregate would not have a Material Adverse Effect), or (ii) in default
in any respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness or
in any agreement, indenture, lease or other instrument to which the Company or
any of the Subsidiaries or Falconite is a party or by which any of them or any
of their respective properties may be bound, except as may be discussed in the
Prospectuses or where any such default or defaults in the aggregate would not
have a Material Adverse Effect.
(i) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement or the U.S. Underwriting Agreement by
the Company nor the consummation by the Company of the transactions contemplated
hereby and thereby or the performance by the Company of the Stock Purchase
Agreement and consummation of the Acquisition of Falconite pursuant thereto (i)
requires any consent, approval, authorization or other order of or registration
or filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required for the
registration of the Shares under the Act which has been or will be effected in
accordance with this Agreement, and compliance with the securities or Blue Sky
laws of various jurisdictions) or conflicts or will conflict with or constitutes
or will constitute a breach of, or a default under, the certificate or articles
of incorporation or bylaws, or other organizational documents, of the Company or
any of the Subsidiaries or, after giving effect to the Acquisition pursuant to
the terms of the Stock Purchase Agreement, Falconite or (ii) conflicts or will
conflict with or constitutes or will constitute a breach of, or a default under,
in any material respect, any material agreement, indenture, lease or other
instrument to which the Company or any of the Subsidiaries or, after giving
effect to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite is a party or by which any of them or any of their respective
properties may be bound, or violates or will violate in any material respect any
statute, law, regulation or filing or judgment, injunction, order or decree
applicable to the Company or any of the Subsidiaries or, after giving effect to
the Acquisition pursuant to the terms of the Stock Purchase Agreement, Falconite
or any of their respective properties, or will result in the creation or
imposition of any material lien, charge or encumbrance upon any property or
assets of the Company or any of the Subsidiaries or, after giving effect to the
Acquisition pursuant to the terms of the Stock Purchase Agreement, Falconite
pursuant to the terms of any agreement or instrument to which any of them is a
party or by which any of them may be bound or to which any of the property or
assets of any of them is subject.
(j) The accountants, Price Waterhouse LLP, Xxxxxxxx, Xxxxxxxxx Xxxx
Xxxxx & Co. P.C., Xxxxx, Xxxxxxx & Xxxxxxx, Certified Public Accountants,
Coopers & Xxxxxxx L.L.P. and KPMG Peat Marwick L.L.P., who have certified or
shall certify the financial
12
statements filed or to be filed as part of the Registration Statement or the
Prospectuses (or any amendment or supplement thereto) are, to the Company's
knowledge independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its interpretations and rulings.
(k) The financial statements (historical and pro forma), together with
related schedules and notes forming part of the Registration Statement and the
Prospectuses (and any amendment or supplement thereto), present fairly in all
material respects the consolidated financial position, results of operations,
cash flows and changes in stockholders' equity of the Company, the Subsidiaries
and Falconite on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; the assumptions used in preparing
the pro forma financial information and related notes and schedules included in
the Registration Statement and the Prospectuses (and any amendment or supplement
thereto) are reasonable; and the other financial and statistical information and
data set forth in the Registration Statement and the Prospectuses (and any
amendment or supplement thereto) are accurately presented and, to the extent
such information and data are derived from the financial books and records of
the Company or Falconite, prepared on a basis consistent with the books and
records of the Company and its Subsidiaries or Falconite.
(l) The execution and delivery of, and the performance by the Company
of its obligations under, each of this Agreement and the U.S. Underwriting
Agreement have been duly and validly authorized by the Company, and each of this
Agreement and the U.S. Underwriting Agreement has been duly executed and
delivered by the Company and constitutes the valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except as the enforcement hereof and thereof may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
generally and subject to the applicability of general principles of equity, and
except as rights to indemnity and contribution hereunder and thereunder may be
limited by Federal or state securities laws or principles of public policy.
(m) Except as disclosed in the Registration Statement and the
Prospectuses (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectuses (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred, and after giving effect to
the Acquisition pursuant to the terms of the Stock Purchase Agreement, Falconite
will not have incurred, any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business, that is
material to the Company and the Subsidiaries taken as a whole or Falconite, and
there has not been, and after giving effect to the Acquisition pursuant to the
terms of the Stock Purchase Agreement, there will not have been any material
change in the capital stock of the Company, or material increase in the short-
term debt
13
or long-term debt, of the Company or any of the Subsidiaries, or any development
having or which may reasonably be expected to have, a Material Adverse Effect.
(n) Each of the Company and the Subsidiaries has, and after giving
effect to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite will have good and marketable title to all property (real and
personal) described in the Prospectuses as being owned by it, free and clear of
all liens, claims, security interests or other encumbrances except pursuant to
and otherwise permitted by the Credit Facility as are described in the
Registration Statement and the Prospectuses or in a document filed as an exhibit
to the Registration Statement and all the property described in the Prospectuses
as being held under lease by each of the Company and the Subsidiaries is and,
after giving effect to the Acquisition pursuant to the terms of the Stock
Purchase Agreement, all the property described in the Prospectuses as being held
under lease by Falconite will be, held by it under valid, subsisting and
enforceable leases with only such exceptions as in the aggregate are not
materially burdensome and do not interfere in any material respect with the
conduct of the business of the Company and the Subsidiaries and, after giving
effect to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite, taken as a whole.
(o) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date or the Option Closing Date, if any, and (ii) completion
of the distribution of the Shares, will not distribute any offering material in
connection with the offering and sale of the Shares other than the Registration
Statement, the Prepricing Prospectuses, the Prospectuses or other materials, if
any, permitted by the Act.
(p) The Company and each of the Subsidiaries has, and after giving
effect to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite will have such permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("Permits") as are necessary to own its
respective properties and to conduct its business in the manner described in the
Prospectuses, except where the failure to have any such Permit would not have a
Material Adverse Effect; the Company and each of the Subsidiaries has, and after
giving effect to the Acquisition pursuant to the terms of the Stock Purchase
Agreement, Falconite will have, fulfilled and performed in all material respects
all its material obligations with respect to such Permits and no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of the rights
of the holder of any such Permit, subject in each case to such qualification as
may be set forth in the Prospectuses and except to the extent that any such
revocation or termination would not have a Material Adverse Effect; and, except
as described in the Prospectuses, none of such Permits contains any restriction
that is materially burdensome to the Company or any of the Subsidiaries or,
after giving effect to the Acquisition pursuant to the terms of the Stock
Purchase Agreement, Falconite.
(q) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to
14
permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(r) To the Company's knowledge, neither the Company nor any of its
Subsidiaries nor any employee or agent of the Company or any Subsidiary has made
and, after giving effect to the Acquisition pursuant to the terms of the Stock
Purchase Agreement, neither Falconite nor any employee or agent of Falconite
will have made, any payment of funds of the Company or any Subsidiary or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectuses.
(s) Except as discussed in the Prospectuses, the Company and each of
the Subsidiaries have and, after giving effect to the Acquisition pursuant to
the terms of the Stock Purchase Agreement, Falconite will have, filed all tax
returns required to be filed, which returns are true and correct in all material
respects, and neither the Company nor any Subsidiary is and, after giving effect
to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite will not be, in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto, except where
the failure to file such returns and make such payments would not have a
Material Adverse Effect and except for the payment of any amounts that are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with generally accepted accounting principles have been
established.
(t) Except as described in the Prospectuses, no holder of any security
of the Company has any right to require registration of shares of Common Stock
or any other security of the Company because of the filing of the registration
statement or consummation of the transactions contemplated by this Agreement or
the U.S. Underwriting Agreement, or otherwise. No such rights with respect to
shares of Common Stock not listed in Schedule I hereto were exercised nor will
be exercised in connection with the sale of the Shares and for a period of 180
days after the date hereof. Except as described in or contemplated by the
Prospectuses, there are no outstanding options, warrants or other rights calling
for the issuance of, and there are no commitments, plans or arrangements to
issue, any shares of Common Stock of the Company or any security convertible
into or exchangeable or exercisable for Common Stock of the Company.
(u) The Company and the Subsidiaries own or possess, and after giving
effect to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite will own or possess, all patents, trademarks, trademark registration,
service marks, service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Prospectuses as being
owned by them or any of them or necessary for the conduct of their respective
businesses, and the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and the Subsidiaries
and Falconite
15
with respect to the foregoing, except for such claims or challenges that would
not individually or in the aggregate be reasonably expected to result in a
Material Adverse Effect.
(v) The Company is not and, upon sale of the Shares to be issued and
sold in accordance herewith and upon application of the net proceeds to the
Company from such sale as described in the Prospectuses under the caption "Use
of Proceeds," will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(w) The Company has complied with all provisions of Florida Statutes,
(S)517.075, relating to issuers doing business with Cuba.
(x) The Company and each of its Subsidiaries have and, after giving
effect to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite will have, fulfilled their obligations, if any, under the minimum
funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income
Security Act of 1974 ("ERISA") and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in ERISA and such regulations
and published interpretations) in which employees of the Company and its
Subsidiaries and Falconite are, or will be, eligible to participate and each
such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations, and has not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of premiums in the
ordinary course) or to any such plan under Title IV of ERISA.
(y) The execution and delivery of this Agreement and the U.S.
Underwriting Agreement and the consummation of the transactions contemplated
hereby and thereby will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code").
(z) (i) The Company and each of its Subsidiaries are, and after giving
effect to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite will be, insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are customary in the
businesses in which they are engaged; (ii) all policies of insurance insuring
the Company or any of its Subsidiaries or, after giving effect to the
Acquisition pursuant to the terms of the Stock Purchase Agreement, Falconite, or
their respective businesses, assets, employees, officers and directors are, or
will be, in full force and effect; (iii) the Company and its Subsidiaries are,
and after giving effect to the Acquisition pursuant to the terms of the Stock
Purchase Agreement, Falconite will be, in compliance with the terms of such
policies and instruments in all material respects; and (iv) there are no
material claims by the Company or any of its Subsidiaries or, after giving
effect to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite under any such policy or instrument as to which any insurance company
is denying liability or defending under a reservation of rights clause.
(aa) The Company and each of its Subsidiaries and, after giving effect
to the Acquisition pursuant to the terms of the Stock Purchase Agreement,
Falconite (i) are or will be and at all times have or will have been, in
compliance with any and all applicable foreign,
16
federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have or will
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are or will be in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a Material Adverse Effect. Neither
the Company nor any of its Subsidiaries has been, and after giving effect to the
Acquisition pursuant to the terms of the Stock Purchase Agreement, Falconite
will not have been named as a "potentially responsible party" under the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, or any similar state statute.
(ab) In connection with its acquisition of businesses, the Company
typically conducts a review of the effect of Environmental Laws on the business,
operations and properties of the acquired businesses, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a Material Adverse Effect.
8. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder represents and warrants, severally and not jointly, to each
Manager that:
(a) Such Selling Stockholder now has valid and marketable title to the
Class B Common Stock to be converted in the reclassification into the Shares to
be sold by such Selling Stockholder, and on the Closing Date and any Option
Closing Date will have valid and marketable title to the Shares to be sold by
such Selling Stockholder, free and clear of any lien, claim, security interest
or other encumbrance, including, without limitation, any restriction on
transfer, except as otherwise described in the Prospectuses.
(b) Such Selling Stockholder now has, and on the Closing Date and any
Option Closing Date will have, full legal right, power and authorization, and
any approval required by law, to sell, assign, transfer and deliver such Shares
in the manner provided in this Agreement and the U.S. Underwriting Agreement,
and upon delivery of and payment for such Shares hereunder, the several Managers
will acquire valid and marketable title to such Shares free and clear of any
lien, claim, security interest, or other encumbrance, assuming the Managers
purchase such Shares for value therefor pursuant hereto without notice of any
adverse claim, as defined in the Uniform Commercial Code as adopted in the State
of New York (the "UCC") and are otherwise bona fide purchasers for the purposes
of the UCC and that such Managers' rights are not limited by subsection (4) of
Section 8-302 of the UCC..
17
(c) This Agreement and the U.S. Underwriting Agreement have been duly
authorized, executed and delivered by or on behalf of such Selling Stockholder
and are the valid and binding agreements of such Selling Stockholder enforceable
against such Selling Stockholder in accordance with their terms, except as the
enforcement hereof and thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' right generally and subject
to the applicability of general principles of equity, and except as rights to
indemnity and contribution hereunder and thereunder may be limited by Federal or
state securities laws or principles of public policy.
(d) Neither the sale of the Shares, the execution, delivery or
performance of this Agreement or the U.S. Underwriting Agreement by or on behalf
of such Selling Stockholder nor the consummation by or on behalf of such Selling
Stockholder of the transactions contemplated hereby and thereby (i) requires any
consent, approval, authorization or other order of, or registration or filing
with, any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required for the registration of
the Shares under the Act or compliance with the securities laws of various
jurisdictions), or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, in any material respect, any
material agreement, indenture, lease or other instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is or may be bound,
or violates or will violate in any material respect any statute, law, regulation
or filing or judgment, injunction, order or decree applicable to such Selling
Stockholder, or will result in the creation or imposition of any material lien,
charge or encumbrance upon any property or assets of such Selling Stockholder
pursuant to the terms of any agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder may be bound or to
which any of the property or assets of such Selling Stockholder is subject.
(e) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Shares, except for the lock-up arrangements referred
to in the Prospectuses.
(f) To the extent, but only to the extent, that any statements or
omissions made in the Registration Statement, any Preliminary Prospectus, the
Prospectuses 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 Prospectuses and any further amendments
or supplements to the Registration Statement and the Prospectuses, 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 the Registration Statement 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 and the Preliminary Prospectuses and Prospectuses will
not include any
18
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each of you and each other Manager and each person,
if any, who controls any Manager within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any International Prepricing Prospectus or in the
Registration Statement or the International Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Manager or U.S. Underwriter furnished in
writing to the Company by or on behalf of any Manager through you or by or on
behalf of any U.S. Underwriter through a Representative expressly for use in
connection therewith; provided, however, that the indemnification contained in
this paragraph (a) with respect to any International Prepricing Prospectus shall
not inure to the benefit of any Manager (or to the benefit of any person
controlling such Manager) on account of any such loss, claim, damage, liability
or expense arising from the sale of the Shares by such Manager to any person if
a copy of the International Prospectus shall not have been delivered or sent to
such person within the time required by the Act and the regulations thereunder,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such International Prepricing
Prospectus was corrected in the International Prospectus, provided that the
Company has delivered the International Prospectus to the several Managers in
requisite quantity on a timely basis to permit such delivery or sending.
(b) If any action, suit or proceeding shall be brought against any
Manager or any person controlling any Manager in respect of which indemnity may
be sought against the Company, such Manager or such controlling person shall
promptly notify the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Manager or any such controlling person shall have the right to
employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Manager or such controlling person unless (i)
the indemnifying parties have agreed in writing to pay such fees and expenses,
(ii) the indemnifying parties have failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Manager or such controlling
person and the indemnifying parties and such Manager or such controlling person
shall have been advised by its counsel that representation of such indemnified
party and any indemnifying party by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the
19
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the indemnifying party shall not have the right to
assume the defense of such action, suit or proceeding on behalf of such Manager
or such controlling person). It is understood, however, that the indemnifying
parties shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to one separate firm of attorneys per
jurisdiction acting as local counsel) at any time for all such Managers and
controlling persons not having actual or potential differing interests with you
or among themselves, which firm shall be designated in writing by Xxxxx Xxxxxx
Inc., and that all such fees and expenses shall be reimbursed on a monthly basis
as provided in the preceding paragraph. The indemnifying parties shall not be
liable for any settlement of any such action, suit or proceeding effected
without their written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the indemnifying parties agree to indemnify and hold harmless any
Manager, to the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each of you and each other Manager and each person,
if any, who controls any Manager within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, the Company, its directors, its officers who
sign the Registration Statement, and any person who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act to the
same extent as the foregoing indemnity from the Company to each Manager, but
only with respect to the information relating to such Selling Stockholder
furnished in writing by or on behalf of such Selling Stockholder expressly for
use in the Registration Statement, the International Prospectus or any
International Prepricing Prospectus, or any amendment or supplement thereto. If
any action, suit or proceeding shall be brought against any Manager, any such
controlling person of any Manager Underwriter, the Company, any of its
directors, any such officer, or any such controlling person of the Company,
based on the Registration Statement, the International Prospectus or any
International Prepricing Prospectus or any amendment or supplement thereto, and
in respect of which indemnity may be sought against any Selling Stockholder
pursuant to this paragraph (c), such Selling Stockholder shall have the rights
and duties given to the Company by paragraph (b) above (except that if the
Company or the Managers shall have assumed the defense thereof such Selling
Stockholder shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof, but the fees and expenses of
such counsel shall be at such Selling Stockholder's expense), and each Manager,
each such controlling person of any Manager Underwriter, the Company, its
directors, any such officer, and any such controlling person of the Company
shall have the rights and duties given to the Managers by paragraph (b) above.
The foregoing indemnity agreement shall be in addition to any liability which
any Selling Stockholder may otherwise have. Notwithstanding anything herein to
the contrary, no Selling Stockholder shall be required to indemnify any Manager,
any such controlling person of any Manager, the Company, any of its directors,
any such officer or any such controlling person of the Company, in an aggregate
20
amount in excess of the net amount received by such Selling Stockholder (after
deducting any underwriting discount) from the sale of such Selling Stockholder's
Shares pursuant to the International Prospectus.
(d) Each Manager agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, any person who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act and the Selling Stockholders, to
the same extent as the foregoing indemnity from the Company to each Manager, but
only with respect to information relating to such Manager furnished in writing
by or on behalf of such Manager through you expressly for use in the
Registration Statement, the International Prospectus or any International
Prepricing Prospectus, or any amendment or supplement thereto. If any action,
suit or proceeding shall be brought against the Company, any of its directors,
any such officer, any such controlling person or any Selling Stockholder based
on the Registration Statement, the International Prospectus or any International
Prepricing Prospectus, or any amendment or supplement thereto, and in respect of
which indemnity may be sought against any Manager pursuant to this paragraph
(d), such Manager shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company or the Selling Stockholders
shall have assumed the defense thereof such Manager shall not be required to do
so, but may employ separate counsel therein and participate in the defense
thereof, but the fees and expenses of such counsel shall be at such Manager's
expense), and the Company, its directors, any such officer, any such controlling
person, and the Selling Stockholders, shall have the rights and duties given to
the Managers by paragraph (b) above.
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a), (c) or (d) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Selling Stockholders and the Managers, respectively, from the
offering of the Shares, or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, the Selling Stockholders and the Managers,
respectively, in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Stockholders and the Managers, respectively, 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, respectively, bear to the total underwriting discounts and
commissions received by the Managers, in each case as set forth in the table on
the cover page of the International Prospectus; provided that, in the event that
the Managers shall have purchased any Additional Shares hereunder, any
determination of the relative benefits received by the Selling Stockholders or
the Managers from the offering of the Shares shall include the net proceeds
(before deducting expenses) received by the Selling
21
Stockholders, and the underwriting discounts and commissions received by the
Managers, from the sale of such Additional Shares, in each case computed on the
basis of the respective amounts set forth in the notes to the table on the cover
page of the International Prospectus. The relative fault of the Company, the
Selling Stockholders and the Managers, respectively, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders, or the
Managers and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(f) The Company, the Selling Stockholders and the Managers agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by a pro rata allocation (even if the Managers were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (e) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (e) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 9, no Manager shall
be required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed to the public exceeds the
amount of any damages which such Manager has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. Notwithstanding the provisions of this Section 9, no Selling
Stockholder shall be required to contribute any amount in excess of the amount
by which the net amount received by it (after deducting any underwriting
discount) from the sale of such Selling Stockholder's Shares exceeds the amount
of any damages which such Selling Stockholder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Managers'
obligations to contribute pursuant to this Section 9 are several in proportion
to the respective numbers of Firm Shares set forth opposite their names in
Schedule II hereto (or such numbers of Firm Shares increased as set forth in
Section 12 hereof) and not joint. The Selling Stockholders' obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective numbers of Shares sold by each Selling Stockholder pursuant to the
International Prospectus and not joint.
(g) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
22
(h) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 9 shall be paid on a monthly basis by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 9
and the representations and warranties of the Company and the Selling
Stockholders set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Manager or any person controlling any Manager, the Company, its directors or
officers or the Selling Stockholders, any director, officer or partner of a
Selling Stockholder or any person controlling the Company or any Selling
Stockholder, (ii) acceptance of any Shares and payment therefor hereunder, and
(iii) any termination of this Agreement. A successor to any Manager or any
person controlling any Manager, or to the Company, its directors or officers, or
to a Selling Stockholder, any director, officer or partner of a Selling
Stockholder or any person controlling the Company or any Selling Stockholder,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section 9.
10. Conditions of Managers' Obligations. The several obligations of
the Managers to purchase the Firm Shares hereunder are subject to the following
conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Shares may commence, the
Registration Statement or such post-effective amendment shall have become
effective not later than 5:30 P.M. New York City time, on the date hereof, or at
such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Manager, threatened
by the Commission, and any request of the Commission for additional information
(to be included in the Registration Statement or the Prospectuses or otherwise)
shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, that would have a Material Adverse Effect on the Company and the
Subsidiaries, taken as a whole, not contemplated by the Prospectuses, which in
your opinion, as Lead Managers of the several Managers, would materially,
adversely affect the market for the Shares, or (ii) any event or development
relating to or involving the Company or any officer or director of the Company
or any Selling Stockholder which makes any statement of material fact made in
the Prospectuses untrue or which, in the opinion of the Company and its counsel
or the Managers and their counsel, requires the making of any addition to or
change in the Prospectuses in order to state a material fact required by the Act
or any other law to be stated therein or necessary in order to make the
statements of material fact therein not misleading, if amending or supplementing
the
23
Prospectuses to reflect such event or development would, in your opinion, as
Lead Managers of the several Managers, materially adversely affect the market
for the Shares.
(c) You shall have received on the Closing Date an opinion of
Xxxxxxxx & Xxxxx, counsel for the Company and the Selling Stockholders, dated
the Closing Date and addressed to you, as Lead Managers of the several Managers,
in substantially the form of Exhibit A hereto.
(d) You shall have received on the Closing Date an opinion of
Xxxxxx & Xxxxxxx, counsel for the Managers, dated the Closing Date, with respect
to the Registration Statement and the Prospectuses and such other related
matters as you may reasonably request.
(e) You shall have received a letter addressed to you, as Lead
Managers of the several Managers, and dated the date hereof and the Closing Date
from Price Waterhouse LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any material change in the capital stock of the Company nor any
material increase in the short-term or long-term debt of the Company (other than
in the ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectuses (or any amendment or supplement
thereto); (iii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement and the Prospectuses
(or any amendment or supplement thereto), except as may otherwise be stated in
the Registration Statement and Prospectuses (or any amendment or supplement
thereto), 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 the Subsidiaries taken as a whole; and (iv) all the
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects on and as of the date hereof and on
and as of the Closing Date as if made on and as of the Closing Date (except to
the extent they expressly relate to an earlier date), and you shall have
received a certificate, dated the Closing Date and signed by the chief executive
officer and the chief financial officer of the Company (or at the Company's
option such other officers as are acceptable to you), to the effect set forth in
this Section 10(f) and in Section 10(g) hereof.
(g) The Company shall not have failed in any material respect at or
prior to the Closing Date to have performed or complied with any of its
agreements contained in this Agreement or the U.S. Underwriting Agreement and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(h) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct in all
material respects, on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date (except to
24
the extent they expressly relate to an earlier date), and you shall have
received a certificate, dated the Closing Date and signed by or on behalf of
each Selling Stockholder to the effect set forth in this Section 10(h) and in
Section 10(i) hereof.
(i) The Selling Stockholders shall not have failed in any material
respect at or prior to the Closing Date to have performed or complied with any
of their agreements contained in this Agreement or the U.S. Underwriting
Agreement and required to be performed or complied with by them at or prior to
the Closing Date.
(j) The Sellers shall have furnished or caused to be furnished to
you such further certificates and documents as you shall have reasonably
requested.
(k) The Common Stock shall have been listed or approved for listing
subject to notice of issuance, on the New York Stock Exchange.
(l) The closing of the Reclassification and the Stock Split (as
defined in the Prospectuses) as described in the Prospectuses shall have
occurred.
(m) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the Closing Date, unless
such closing shall have failed to occur solely as a result of the failure to
occur of the closing hereunder.
(n) The closing of the Acquisition of Falconite under the Stock
Purchase Agreement shall have occurred concurrently with the closing hereunder
on the Closing Date.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company or
any Selling Stockholder and delivered to you, as Lead Managers of the Managers,
or to counsel for the Managers, shall be deemed a representation and warranty by
the Company, the Selling Stockholders or the particular Selling Stockholder, as
the case may be, to each Manager as to the statements made therein.
The several obligations of the Managers to purchase Additional Shares
hereunder are subject to the satisfaction on and as of any Option Closing Date
of the conditions set forth in this Section 10, except that, if any Option
Closing Date is other than the Closing Date, the certificates, opinions and
letters referred to in this Section 10 shall be dated the Option Closing Date in
question and the opinions or letters called for by paragraphs (c), (d) and (e)
shall be revised to reflect the sale of Additional Shares.
25
11. Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by the
Sellers of their obligations hereunder: (i) the preparation, printing or
reproduction, and filing with the Commission of the registration statement
(including financial statements and exhibits thereto), each International
Prepricing Prospectus, the International Prospectus, and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting and packaging)
of such copies of the registration statement, each International Prepricing
Prospectus, the International Prospectus, and all amendments or supplements to
any of them as may be reasonably requested for use in connection with the
offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the original issuance and sale of the Shares;
(iv) the printing (or reproduction) and delivery of this Agreement, the Blue Sky
Memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the original issuance and sale of the Shares; (v)
the registration of the Common Stock under the Exchange Act and the listing of
the Shares on the New York Stock Exchange; (vi) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the several jurisdictions as provided in Section 5(g) hereof (including
the reasonable fees, expenses and disbursements of counsel for the Underwriters
relating to the preparation, printing or reproduction, and delivery of the Blue
Sky Memorandum and such registration and qualification); (vii) the filing fees
and the fees and expenses of counsel for the Underwriters in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc.; (viii) the transportation and other expenses incurred by or on behalf of
representatives of the Company in connection with presentations to prospective
purchasers of the Shares; and (ix) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company and the Selling Stockholders. Except as provided in
Section 5(j) and this Section 11, the Managers will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them and any advertising expenses connected with
any offers they may make.
12. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such post-
effective amendment has been released by the Commission. Until such time as this
Agreement shall have become effective, it may be terminated by the Company, by
notifying you, or by you, as Lead Managers of the several Managers, by notifying
the Company and the Selling Stockholders.
If any one or more of the Managers shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date
or any Option Closing Date, and the aggregate number of Shares which such
defaulting Manager or Underwriters are obligated but fail or refuse to purchase
is not more than one-tenth of the aggregate number of Shares which the Managers
are obligated to purchase on the Closing Date or any Option Closing Date, each
26
non-defaulting Manager shall be obligated, severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule II hereto
bears to the aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Managers or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxx
Xxxxxx Inc., to purchase the Shares which such defaulting Manager or Managers
are obligated, but fail or refuse, to purchase. If any one or more of the
Managers shall fail or refuse to purchase Shares which it or they are obligated
to purchase on the Closing Date or any Option Closing Date and the aggregate
number of Shares with respect to which such default occurs is more than one-
tenth of the aggregate number of Shares which the Managers are obligated to
purchase on the Closing Date or any Option Closing Date and arrangements
satisfactory to you and the Company for the purchase of such Shares by one or
more non-defaulting Managers or other party or parties approved by you and the
Company are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Manager, the
Selling Stockholders or the Company; provided, that if such default occurs with
respect to Additional Shares to be purchased on any Option Closing Date
different from the Closing Date, this Agreement will terminate only as to the
Additional Shares to be purchased on such Option Closing Date.. In any such
case which does not result in termination of this Agreement, either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Nothing in this paragraph shall relieve any defaulting Manager
from liability in respect of any such default of any such Manager under this
Agreement. The term "Manager" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed in Schedule II hereto who, with
your approval and the approval of the Company, purchases Shares which a
defaulting Manager is obligated, but fails or refuses, to purchase.
Any notice under this Section 12 may be given by telegram, telecopy or
telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Manager to the Company or any Selling Stockholder, by notice to the Company, if
prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either federal or state authorities, or
(iii) there shall have occurred any outbreak or escalation of hostilities or
other international or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the International Prospectus
or to enforce contracts for the resale of the Shares by the Managers.
27
Notice of such termination may be given by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
14. Information Furnished by the Managers and Selling Stockholders.
(a) The statements set forth in the last paragraph on the cover page, the
stabilization legend on the inside front cover page, and the statements related
to concessions and reallowances and the paragraph related to stabilization,
syndicate covering transactions and penalty bids under the caption
"Underwriting" in any International Prepricing Prospectus and in the
International Prospectus constitute the only information furnished by or on
behalf of the Managers through you as such information is referred to in
Sections 7(b) and 9 hereof.
(b) The number of shares of Common Stock beneficially owned by the
Selling Stockholders prior to and after the offerings of the Underwritten Shares
and related footnotes to the table under the caption "Principal and Selling
Stockholders" and the biographical data pertaining to the persons affiliated
with the Selling Stockholders in any International Prepricing Prospectus and in
the International Prospectus constitute the only information furnished by or on
behalf of the Selling Stockholders relating to them as such information is
referred to in Sections 7(b) and 9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5, 12
and 13 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the Company or the Selling
Stockholders at the office of the Company at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Chief Financial Officer; or (ii) if to you, as Lead
Managers of the several Managers, care of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking
Division.
This Agreement has been and is made solely for the benefit of the
several Managers, the Company, its directors and officers, the other controlling
persons referred to in Section 9 hereof and the Selling Stockholders and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from any Manager of any of the Shares
in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
In all dealings with the Company under this Agreement, you shall act
on behalf of each of the several Managers, and the Company shall be entitled to
act and rely upon any
28
statement, request, notice or agreement made or given by you jointly or by Xxxxx
Xxxxxx Inc. on behalf of you.
29
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Managers.
Very truly yours,
NATIONAL EQUIPMENT SERVICES, INC.
By
---------------------------------
President and Chief Executive Officer
Each of the Selling Stockholders
named in Schedule I hereto
By
---------------------------------
By
---------------------------------
30
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Managers named in Schedule II
hereto.
XXXXXXX XXXXX BARNEY INTERNATIONAL
XXXXX XXXXXX INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXXXX, LUFKIN & XXXXXXXX
INTERNATIONAL
NATIONSBANC XXXXXXXXXX SECURITIES LLC
As Lead Managers of the Several Managers
By XXXXX XXXXXX INC.
By:
----------------------------
Managing Director
31
SCHEDULE I
NATIONAL EQUIPMENT SERVICES, INC.
Number of Maximum Number of
Selling Stockholders Firm Shares Additional Shares
-------------------- ----------- -----------------
Golder, Thoma, Xxxxxxx, Xxxxxx Fund V, L.P....................
GTCR Associates V.............................................
Total............................................... 666,667 600,000
32
SCHEDULE II
NATIONAL EQUIPMENT SERVICES, INC.
Manager Number of Firm Shares
------- ---------------------
Xxxxx Xxxxxx Inc...............................................
Xxxxxxx Xxxxx & Company, L.L.C.................................
Credit Suisse First Boston (Europe) Limited....................
Xxxxxxxxx, Lufkin & Xxxxxxxx International.....................
NationsBanc Xxxxxxxxxx Securities LLC..........................
Total................................................ 4,000,000
33
SCHEDULE III
Jurisdictions Where Qualified to Do Business
[to come]
34
Exhibit A
---------
Form of Opinion of Xxxxxxxx & Xxxxx
35
