XXXX XXXXX XXXXXX CORPORATION
Class A Common Stock
(par value $.01 per share)
---------------
Underwriting Agreement
February __, 2004
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
UBS Securities LLC
As representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II (the "Selling Stockholders") of
Xxxx Xxxxx Xxxxxx Corporation, a Delaware corporation (the "Company"), propose,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
9,192,156 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 1,378,823 additional shares (the "Optional Shares") of Class A Common
Stock, par value $.01 per share (the "Stock"), of the Company. The Firm Shares
and the Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are herein collectively called the "Shares." Except as used in
Sections 2, 3, 4, 5, 9 and 11 herein, and except as the context may otherwise
require, references hereinafter to the Shares shall include all the shares of
Stock which may be sold pursuant to this Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-112730)
together with any pre-effective amendments thereto, (the "Initial
Registration Statement") in respect of the Shares has been filed with the
Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits thereto, but
including all documents incorporated by reference in the prospectus
contained therein, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been
filed with the Commission; and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including (i) the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared effective and
(ii) the documents incorporated by reference in the prospectus contained
in the Initial Registration Statement at the time such part of the Initial
Registration Statement became effective, or such part of the Rule 462(b)
Registration Statement, if any, which became or hereafter becomes
effective, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be deemed
to refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3;
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
Exchange Act, and the rules and regulations of the Commission thereunder,
and none of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto,
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when such documents 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 or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the preparation
of the answers therein to Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other than
the issuance of Stock upon the exercise of outstanding stock options or
the repurchase of Stock by the Company pursuant to the repurchase plan
previously authorized by the Company's Board of Directors, in each case to
the extent set forth or contemplated by the Prospectus) or long-term debt
(other than accretion or scheduled repayment or open market purchases
thereof, in each case to the extent set forth or contemplated by the
Prospectus) of the Company or any of its subsidiaries, or any material
adverse change, or any development related to the Company involving a
prospective material adverse change, in or affecting the business affairs,
financial condition, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated by the Prospectus;
(vi) The Company and its subsidiaries listed on Schedule III hereto
(the "Principal Subsidiaries") have good and marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries or such as do not and would not,
individually or in the aggregate, have a material adverse effect on the
business, prospects, operations, financial condition, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect"); any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries
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or such as do not and would not, individually or in the aggregate, have a
Material Adverse Effect; and other than the Principal Subsidiaries, there
are no subsidiaries of the Company which would constitute significant
subsidiaries as defined in Rule 1-02(w) of Regulation S-X;
(vii) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
each subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction;
(viii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued and outstanding shares of capital
stock of the Company have been duly authorized and issued, are fully paid
and non-assessable and conform in all material respects to the description
of the capital stock contained in the Prospectus; and all of the issued
and outstanding shares of capital stock of each subsidiary of the Company
have been duly authorized and issued, are fully paid and non-assessable
and (except for directors' qualifying shares and except as set forth in
the Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances or claims or as may have been pledged to
the lenders under certain of the Company's credit agreements;
(ix) The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein (i) will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject except any
such conflict, breach, violation or default which has been consented to or
waived by the appropriate counterparty thereto, prior to the execution and
delivery of this Agreement, (ii) will not result in any violation of the
provisions of the Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") or the Amended and Restated By-laws (the
"By-laws") of the Company, and (iii) will not result in any violation of
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except for conflicts, breaches,
violations or defaults (other than any relating to the Certificate of
Incorporation or By-laws of the Company) that would not, individually or
in the aggregate, have a Material Adverse Effect or, individually or in
the aggregate, impair the Company's ability to consummate the transactions
herein contemplated; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
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agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except the registration under
the Act of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(x) Neither the Company nor any of its Principal Subsidiaries is in
violation of its respective certificate of incorporation or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound which default
would have a Material Adverse Effect;
(xi) The Company has all requisite corporate power and authority to
enter into this Agreement; and this Agreement has been duly authorized by
the Company and has been validly executed and delivered by the Company;
(xii) The description of the Company's capital stock included or
incorporated by reference in the Prospectus insofar as it purports to
constitute a summary of the terms of the Stock is accurate and fair in all
material respects;
(xiii) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xiv) The financial statements included or incorporated by reference
in the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the
Company and its subsidiaries on a consolidated basis as of the dates
indicated and the results of operations, stockholders' equity and cash
flows of the Company and its subsidiaries on a combined basis for the
periods indicated. Such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States ("GAAP") applied on a consistent basis throughout the periods
involved. The financial statement schedules, if any, included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein. The selected financial data
included or incorporated by reference in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent in
all material respects with that of the audited financial statements
included or incorporated by reference in the Registration Statement, as
the case may be; no other financial statements or supporting schedules are
required to be included or incorporated by reference in the Registration
Statement or the Prospectus;
(xv) There are no contracts or documents of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not so described,
or filed or incorporated by reference therein;
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(xvi) Except as disclosed in the Prospectus, the Company and its
subsidiaries own or possess all foreign and domestic governmental
licenses, permits, certificates, consents, orders, approvals and other
authorizations (collectively, "Governmental Licenses") necessary to own or
lease, as the case may be, and to operate their properties and to carry on
their business as presently conducted, except to the extent that the
failure to own or possess such Governmental Licenses would not,
individually or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except
to the extent that the failure to have such Governmental Licenses would
not, individually or in the aggregate, have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to revocation or modification of any such
Governmental Licenses, except to the extent that individually or in the
aggregate, if subject to an unfavorable decision, ruling or finding, such
proceedings would not have a Material Adverse Effect;
(xvii) Except as disclosed in this Prospectus, each of the Company
and its subsidiaries owns or has rights to adequate foreign and domestic
trademarks, service marks, trade names, inventions, copyrights and
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
(collectively, the "Intellectual Property") necessary to carry on their
respective businesses as of the date hereof, and neither the Company nor
any of its subsidiaries is aware that it would interfere with, infringe
upon or otherwise come into conflict with any Intellectual Property rights
of third parties as a result of the operation of the business of the
Company or any subsidiary as of the date hereof that, individually or in
the aggregate, if subject to an unfavorable decision, ruling or finding
would have a Material Adverse Effect;
(xviii) Except as disclosed in the Prospectus, there are no holders
of securities (debt or equity) of the Company or any of its subsidiaries,
or holders of rights (including, without limitation, preemptive rights),
warrants or options to obtain securities of the Company or any of its
subsidiaries, who have the right to request the Company or any of its
subsidiaries to register securities held by them under the Act;
(xix) Except as disclosed in the Prospectus, there are no labor
disputes between the Company or any of its subsidiaries, on the one hand,
and the employees of the Company or any of its subsidiaries, on the other
hand that could reasonably be expected to have a Material Adverse Effect;
(xx) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
and
(xxi) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(xxii) No relationship, direct or indirect, exists between or among
any of the Company or any affiliate of the Company on the one hand, and
any former or current director, officer, stockholder, customer or supplier
of any of them, on the other hand, which is required by the Act or the
rules and regulations thereunder to be described in the Registration
Statement or the Prospectus which is not so described or is not described
as required.
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(xxiii) The Company and its consolidated subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(C) access to assets is permitted only in accordance with management's
authorization; (D) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences; (E) material information relating
to the Company and its consolidated subsidiaries is promptly made known to
the officers responsible for establishing and maintaining the system of
internal accounting controls; and (F) any significant deficiencies or
weaknesses in the design or operation of internal accounting controls
which could adversely affect the Company's ability to record, process,
summarize and report financial data, and any fraud whether or not material
that involves management or other employees who have a significant role in
internal controls, are adequately and promptly disclosed to the Company's
independent auditors and the audit committee of the Company's board of
directors.
(xxiv) The Company and its consolidated subsidiaries employ
disclosure controls and procedures that are designed to ensure that
information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission's rules
and forms, and is accumulated and communicated to the Company's
management, including its principal executive officer or officers and
principal financial officer or officers, as appropriate to allow timely
decisions regarding disclosure.
(xxv) There are no transactions, arrangements and other
relationships between and/or among the Company, any of its affiliates (as
such term is defined in Rule 405 under the Securities Act) and any
unconsolidated entity, including, but not limited to, any structural
finance, special purpose or limited purpose entity (each, an "Off Balance
Sheet Transaction") that could reasonably be expected to affect materially
the Company's liquidity or the availability of or requirements for its
capital resources, including those Off Balance Sheet Transactions
described in the Commission's Statement about Management's Discussion and
Analysis of Financial Conditions and Results of Operations (Release Nos.
33-8056; 34-45321; FR-61), required to be described in the Prospectus
which have not been described as required.
b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement
and for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; such Selling Stockholder has
full right, power and authority to enter into this Agreement, and to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder; and such Selling Stockholder has duly executed and
delivered this Agreement;
(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated (i) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any
7
statute, indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder is bound or to which any of the
property or assets of such Selling Stockholder is subject, except any such
conflict, breach, violation or default which has been consented to or
waived, by the appropriate counterparty thereto, prior to the execution
and delivery hereof, (ii) will not result in any violation of the
provisions of the certificate of incorporation or by-laws of such Selling
Stockholder if such Selling Stockholder is a corporation or the
partnership agreement of such Selling Stockholder if such Selling
Stockholder is a partnership and (iii) will not result in any violation of
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder;
(iii) Such Selling Stockholder has good and valid title to shares of
the Company's Class C Common Stock, par value $.01 per share, that such
Selling Stockholder intends to convert into the Shares to be sold by such
Selling Stockholder hereunder, and immediately prior to each Time of
Delivery (as defined in Section 4 hereof), such Selling Stockholder will
have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens, encumbrances or
claims; and, upon delivery of such Shares hereunder and payment therefor
pursuant hereto, good and valid title to such Shares, free and clear of
all liens, encumbrances or claims, will pass to the several Underwriters;
(iv) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, such
Selling Stockholder will not directly or indirectly offer, sell, contract
to sell or otherwise distribute or dispose of, except as provided
hereunder, Stock or any securities of the Company that are substantially
similar to the Stock, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any substantially similar securities, without the prior
written consent of Xxxxxxx, Xxxxx & Co., as representative of the
Underwriters;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(vi) (A) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not
contain any 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; and (B) the Preliminary Prospectus and
the Prospectus do not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that, in each case, the representations and warranties set forth in
this paragraph 1(b)(vi) apply only to statements or omissions in the
Registration Statement, Preliminary Prospectus or the Prospectus based
upon, and in conformity with, information relating to such Selling
Stockholder furnished to the Company in writing by such Selling
Stockholder expressly for use therein;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
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the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof); and
(viii) The Shares represented by the certificates held by each
Selling Stockholder are subject to the interests of the Underwriters
hereunder; the obligations of the Selling Stockholder hereunder shall not
be terminated by operation of law, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by
the occurrence of any other event; if any such partnership or corporation
should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of the Selling Stockholder in
accordance with the terms and conditions of this Agreement.
2. Subject to the terms and conditions herein set forth, (a) each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at a purchase price per share of
$____, the number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Firm Shares
to be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from such
Selling Stockholders, at the purchase price per share set forth in clause (a) of
this Section 2, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by a
fraction the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 1,378,823 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm Shares. Any such
election to purchase Optional Shares may be exercised from time to time only by
written notice from you to such Selling Stockholders (with a copy to the
Company), given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, if other than the First Time of Delivery,
unless you and such Selling Stockholders otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
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4. (a) The Shares to be purchased by each Underwriter hereunder in such
authorized denominations and registered in such names as Xxxxxxx, Xxxxx & Co.
may request upon at least forty-eight hours' prior notice to the Selling
Stockholders shall be delivered by or on behalf of the Selling Stockholders to
Xxxxxxx, Sachs & Co. through the facilities of the Depository Trust Company
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer or certified or
official bank check or checks, payable to the order of such Selling Stockholder,
in immediately available (same-day) funds. The time and date of such delivery
and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on February __, 2004 or such other time and date as Xxxxxxx, Xxxxx & Co.
and the Selling Stockholders may agree upon in writing, and with respect to the
Optional Shares, 9:30 a.m., New York City time, on the date specified by
Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as Xxxxxxx, Sachs & Co. and the Selling Stockholders may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery," such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery," and each such time and date for delivery is herein called a "Time of
Delivery."
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(k) hereof, will be delivered at the offices of Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Closing Location"). A meeting will be held at the Closing Location
at 2 p.m., New York City time, on the New York Business Day next preceding each
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, "New York Business Day"
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the last date on which the Underwriters may be
required to deliver a Prospectus which shall be disapproved by you
promptly after reasonable notice thereof, except for any such amendment or
supplement that in the reasonable written opinion of counsel to the
Company is required by applicable law; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus
or prospectus, of the suspension of the qualification of the Shares for
10
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction or to
take any other action which would subject it to taxation, other than as to
matters and transactions relating to the offer and sale of the Shares in
each jurisdiction in which the Shares have been qualified as provided
above;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Shares and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the
Exchange Act, to notify you and upon your request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time nine
months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
directly or indirectly offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any Stock or any securities of the
Company that are substantially similar to the Stock, including but not
limited to any securities that are convertible into or exchangeable for,
or that represent the right to
11
receive, Stock or any such substantially similar securities (other than
pursuant to the Company's 1997 Long- Term Stock Incentive Plan or other
employee or director stock option plans existing on the date of this
Agreement), or to file any registration statement with the Commission
under the Act relating to any such securities, without the prior written
consent of Xxxxxxx, Sachs & Co., as representative of the Underwriters;
provided, however, that the foregoing agreement shall not limit the
Company's ability to (i) issue shares of Stock, warrants or convertible
securities as consideration for acquisitions of assets or stock of a third
party, provided that the recipients of all such shares of Stock, warrants
or convertible securities agree with the Company (which agreement may not
be amended without the prior written consent of Xxxxxxx, Xxxxx & Co.) to
be subject to the foregoing lock-up agreement in this Subsection 5(e) with
respect to such shares of Stock, warrants or convertible securites; or
(ii) issue shares of Stock upon the exercise of any warrants or
convertible securities issued pursuant to the preceding clause provided
that such shares of Stock will be subject to the foregoing lock-up to the
same extent, if any, as the warrants or convertible securities pursuant to
which such shares of Stock were issued; provided that the aggregate amount
of shares of Stock, warrants and convertible securities (on an as
converted basis) that may be issued under these clauses (i) and (ii) may
not exceed 5,000,000 shares;
(f) If not otherwise available on the Commission's Electronic Data
Gathering, Analysis and Retrieval System or similar system, during a
period of five years from the effective date of the Registration
Statement, to furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the
first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(g) If not otherwise available on the Commission's Electronic Data
Gathering, Analysis and Retrieval System or similar system, during a
period of five years from the effective date of the Registration
Statement, to furnish to you copies of all reports or other communications
(financial or other) furnished to stockholders, and to deliver to you (i)
as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information that is available without
undue expense concerning the business and financial condition of the
Company as you may from time to time reasonably request in writing (such
financial statements to be prepared on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
provided that the Company shall not be required to deliver any information
that would cause the Company to make a filing under Regulation FD as
promulgated under the Exchange Act;
(h) To use its best efforts to maintain the listing of the Shares on
the New York Stock Exchange (the "Exchange"); and
(i) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
12
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
6. The Company and each of the Selling Stockholders covenant and agree
with one another and with the several Underwriters that (a) the Selling
Stockholders will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
this Agreement, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the Exchange; (v) the filing
fees incident to, and the reasonable fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(vi) the cost of preparing stock certificates; (vii) the cost and charges of any
transfer agent or registrar; (viii) all reasonable fees and disbursements of one
counsel for the Selling Stockholders; and (ix) all other costs and expenses
incident to the performance of the Company's obligations hereunder which are not
otherwise specifically provided for in this Section; and (b) each Selling
Stockholder will also pay or cause to be paid all costs and expenses incident to
the performance of such Selling Stockholder's obligations hereunder which are
not otherwise specifically provided for in this Section 6, including all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
such Selling Stockholder to the Underwriters hereunder. In connection with
clause (b) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay New
York State stock transfer tax, and each Selling Stockholder agrees to reimburse
Xxxxxxx, Xxxxx & Co. for associated carrying costs if such tax payment is not
rebated on the day of payment and for any portion of such tax payment not
rebated. Except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
and disbursements 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.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and
13
all requests for additional information on the part of the Commission
shall have been complied with to your reasonable satisfaction;
(b) Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated
such Time of Delivery, with respect to the matters covered in paragraphs
(i), (ii), (vi), (ix) and (xii) of subsection (c) below as well as such
other related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued and outstanding shares of
capital stock of the Company have been duly authorized and are
validly issued, fully paid and non-assessable; and the Shares
conform in all material respects as to legal matters to the
description of the Stock contained in the Prospectus;
(iii) Based solely on such counsel's review of certificates
from public officials, the Company has been duly qualified as a
foreign corporation for the transaction of business in, and is in
good standing under the laws of, the states of California, Georgia,
Illinois, Kentucky, New Jersey, New York, North Carolina,
Pennsylvania, Texas and Washington;
(iv) Based solely on such counsel's review of certificates
from public officials (and, with respect to Aqui Polo C.V., based
solely on the opinion of local counsel) each of the Principal
Subsidiaries has been duly incorporated or organized, as the case
may be, and is validly existing as a corporation or partnership, as
the case may be, in good standing under the laws of its jurisdiction
of incorporation or organization; and all of the issued and
outstanding shares of capital stock (or other equity interests) of
each such Principal Subsidiary have been duly authorized and validly
issued, and, in the case of the Principal Subsidiaries other than
Aqui Polo C.V., are fully paid and non-assessable (in the case of
Aqui Polo C.V., the commitment obligations associated with the
equity interests have been fulfilled), and (except for directors'
qualifying shares) are owned of record directly or indirectly by the
Company, and, to such counsel's knowledge are owned free and clear
of all liens, encumbrances or claims other than those as may have
been created by pledges to lenders under certain of the Company's
credit agreements;
(v) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate
reasonably be expected to have a material adverse effect on the
current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and, to
14
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) The compliance by the Company with all of the provisions
of this Agreement and the performance by the Company of its
obligation thereunder (i) will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument which is either
filed as an exhibit to the Registration Statement or filed as an
exhibit to any document incorporated by reference in the
Registration Statement, (ii) will not result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any Applicable Law, or (iii) to the knowledge of such
counsel, based solely on an officer's certificate from an officer of
the Company and without independent inquiry, any order applicable to
the Company or any of its Principal Subsidiaries. As used herein,
"Applicable Law" shall mean the federal laws of the United States,
the laws of the State of New York and the General Corporation Law of
the State of Delaware, in each case which, in such counsel's
experience, are normally applicable to transactions of the type
contemplated by this Agreement;
(viii) Based on such counsel's review of Applicable Law, but
without any investigation concerning any other laws, rules or
regulations, no consent, approval, authorization, order of, or
registration or qualification with any United States federal, New
York or Delaware court or governmental agency or body is required
for the performance by the Company of its obligations under this
Agreement, except the registration under the Act (which has been
obtained) or under state securities or Blue Sky laws of the Shares;
(ix) The description of the Company's capital stock included
or incorporated by reference in the Prospectus insofar as it
purports to constitute a summary of the terms of the Stock is
accurate and fair in all material respects;
(x) The Company is not required to register as an "investment
company" under the Investment Company Act and the rules and
regulations promulgated thereunder;
(xi) Each document incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements,
financial statements schedules and other financial data included in
or omitted therefrom and related schedules therein, as to which such
counsel need express no belief), when it became effective or was
filed with the Commission, as the case may be, appears on its face
to be appropriately responsive in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; assuming that the statements made in such
documents are complete and correct; and
(xii) Each of the Registration Statement and the Prospectus as
of their respective effective or issue dates and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements, financial
statement schedules and other financial data included in or omitted
therefrom and related schedules therein, as to which such counsel
need express no belief) appears on its face to be appropriately
responsive in all material respects to the requirements of the Act
and
15
the rules and regulations thereunder; although they do not assume
any responsibility for the accuracy or fairness of the statements
contained in the Registration Statement or the Prospectus, except
for those referred to in the opinion in subsection (ix) of this
Section 7(c); in addition, such counsel shall state that, in
connection with the preparation of the Registration Statement and
Prospectus, it has participated in conferences with directors,
officers and other representatives of the Company, representatives
of various of the Selling Stockholders, representatives of the
independent auditors for the Company, representatives of the
Underwriters and representatives of counsel for the Underwriters, at
which conferences the contents of the Registration Statement, the
Prospectus, the documents incorporated by reference prepared by the
Company and related matters were discussed and, on the basis of such
participation (relying as to various questions of fact relevant to
the opinion expressed therein upon the representations and
statements of officers and other representatives of the Company) but
without independent verification of the accuracy, completeness, or
fairness of the statements contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, no facts
have come to the attention of such counsel to lead such counsel to
believe that (a) the Registration Statement or any amendment thereto
made by the Company prior to the Time of Delivery (except for the
financial statements, financial statement schedules and other
financial data included or incorporated by reference in or omitted
therefrom, as to which such counsel need express no belief), at the
time the Registration Statement became effective and on the date of
such written opinion, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or (b) the Prospectus or any amendment or supplement thereto made by
the Company prior to the Time of Delivery (except for the financial
statements, financial statement schedules and other financial data
included or incorporated by reference in or omitted therefrom, as to
which such counsel need express no belief), at the time the
Prospectus was issued and on the date of such written opinion,
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or
described as required.
(d) Xxxxxxxxx Xxxxxxx, LLP ("Xxxxxxxxx Traurig"), counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(b) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that
except as disclosed in the Prospectus, the Company and its subsidiaries
together own or have rights to use the trademarks Xxxx, Xxxxx Xxxxxx and
Chaps/Xxxxx Lauren (the "Principal Trademarks") in their businesses as
described in the Prospectus, without any conflict known to such counsel
with any intellectual property rights of third parties that would,
individually or in the aggregate, have a material adverse effect on the
current or future consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries and, to such
counsel's knowledge, there is no infringement by others of the Principal
Trademarks that would, individually or in the aggregate, have a material
adverse effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the
16
Company and its subsidiaries, except that no opinion need be given as to
any jurisdiction outside the United States;
(e) The counsel for each of the Selling Stockholders shall have
furnished to you their written opinion with respect to each of the Selling
Stockholders (drafts of such opinions are attached as Annex II(c) hereto),
dated the Time of Delivery, in form and substance satisfactory to you, to
the effect that:
(i) Based on such counsel's review of Applicable Law, but
without any investigation concerning any other laws, rules or
regulations, this Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder; and the sale
of the Shares to be sold by such Selling Stockholder hereunder and
compliance by such Selling Stockholder with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument known to such counsel to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets of
such Selling Stockholder is subject based on such counsel's review
of Applicable Law, but without any investigation concerning any
other laws, rules or regulations; nor will such action result in any
violation of (i) the provisions of the partnership agreement of such
Selling Stockholder, (ii) any Applicable Law, or (iii) to the
knowledge of such counsel, any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(ii) Based on such counsel's review of Applicable Law, but
without any investigation concerning any other laws, rules or
regulations, no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated by this Agreement in
connection with the Shares to be sold by such Selling Stockholder
hereunder, except such as have been obtained under the Act and such
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of such shares by the
Underwriters; and
(iii) Good and valid title to such Shares, free and clear of
all liens, encumbrances or claims, has been transferred to each of
the several Underwriters who have purchased such Shares in good
faith and without notice of any such lien, encumbrance or claim or
any other adverse claim within the meaning of the New York Uniform
Commercial Code.
(f) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective date
of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of
Delivery, Deloitte & Touche LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I hereto
(the executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex 1(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex 1(b) hereto);
17
(g)(i) Neither the Company nor any of its Principal Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus there
shall not have been any change in the capital stock (other than the
issuance of Stock upon the exercise of outstanding stock options or the
repurchases of the Stock by the Company pursuant to the repurchase plan
previously authorized by the Company's Board of Directors, in each case to
the extent set forth or contemplated by the Prospectus) and or long-term
debt (other than accretion or scheduled repayments thereof, in each case
to the extent set forth or contemplated by the Prospectus) of the Company
or any of its subsidiaries, or any change, or any development related to
the Company involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the
United States; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or
any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Shares on the terms and in the manner contemplated in the Prospectus;
(i) The Shares at such Time of Delivery shall have been duly listed
on the Exchange;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the directors and executive
officers of the Company and certain members or entities associated with
the Lauren family (the "Non-Selling Stockholders"), substantially to the
effect set forth in Subsection 1(b)(iv) hereof in form and substance
satisfactory to you;
(k) The Company and the Selling Stockholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and of the Selling Stockholders, respectively,
reasonably satisfactory to you as to the accuracy of the representations
and warranties of the Company and the Selling Stockholders, respectively,
herein at and as of such Time of Delivery, as to the performance by each
of the Company and the Selling Stockholders of all of their respective
obligations hereunder to be performed at or prior to such Time of
Delivery, and as to such other matters as you may reasonably request,
18
and the Company shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a) and (g) of
this Section;
(l) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(m) Each of the Selling Stockholders shall have delivered to the
Underwriters certificates required by Treasury Regulation section
1.1445-2(b)(2) in order to avoid withholding of tax under Section 1445 of
the Internal Revenue Code of 1986, as amended.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
in the Registration Statement or any amendment or supplement thereto not
misleading or to make the statements in any Preliminary Prospectus or the
Prospectus not misleading in light of the circumstances under which they were
made, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through Xxxxxxx,
Xxxxx & Co. expressly for use therein.
(b) Each of the Selling Stockholders will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements in the Registration Statement or any amendment or supplement
thereto not misleading or to make the statements in any Preliminary Prospectus
or the Prospectus not misleading in light of the circumstances under which they
were made, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder expressly for
use therein; and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that such Selling Stockholder shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through
19
Xxxxxxx, Sachs & Co. expressly for use therein; provided, further, that
the liability of such Selling Stockholder pursuant to this subsection (b) shall
not exceed the product of the number of Shares sold by such Selling Stockholder
(including any Optional Shares) and the initial public offering price as set
forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection, except to the extent
that such indemnifying party is prejudiced by the failure to give such notice.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with a single counsel (in addition to
any local counsel) satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party. Notwithstanding anything to the contrary
contained herein, an indemnifying party will not be liable for the settlement of
any claim or action effected without its prior written consent, which consent
shall not be unreasonably withheld.
(e) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims,
20
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, each of the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as someone
who will become a director of the Company and who becomes such a director) and
to each person, if any, who controls the Company or any Selling Stockholder
within the meaning of the Act.
21
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Selling Stockholders shall be entiteld to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Stockholders
and the Company that you have so arranged for the purchase of such Shares, or
the Selling Stockholders notify you that they have so arranged for the purchase
of such Shares, you or the Selling Stockholders shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all of the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholders shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company
and the Selling Stockholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Stockholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Stockholder, and shall survive delivery of and payment for the
Shares.
22
Anything herein to the contrary notwithstanding, the indemnity agreement
of the Company in subsection (a) of Section 8 hereof, the representations and
warranties in subsections (a)(ii) and (a)(iv) of Section 1 hereof and any
representation or warranty as to the accuracy of the Registration Statement or
the Prospectus contained in any certificate furnished by the Company pursuant to
Section 7 hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company of expenses incurred or paid in
the successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of a controlling person
or partner of an Underwriter who is a director, officer or controlling person of
the Company when the Registration Statement has become effective, except in each
case to the extent that an interest of such character shall have been determined
by a court of appropriate jurisdiction as not against public policy as expressed
in the Act. Unless in the opinion of counsel for the Company the matter has been
settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question of whether such interest is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Stockholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any of the Selling Stockholders
hereunder, you and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of such Selling Stockholders
made or given by either of the Attorneys-in-Fact (if any) for such Selling
Stockholders.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, by
messenger or facsimile transmission to you as the representatives in care of
Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Registration Department; if to any Selling Stockholders shall be delivered or
sent by mail, by messenger or facsimile transmission to counsel for such Selling
Stockholders at its address set forth in Schedule II hereto; and if to the
Company shall be delivered or sent by mail, by messenger or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(d) hereof shall be delivered or sent by mail,
by messenger or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by you on request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the
23
Company, any Selling Stockholders or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. The Company and the Selling Stockholders are authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, without the Underwriters imposing
any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholders for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
24
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholders pursuant to a validly existing and
binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
XXXX XXXXX XXXXXX CORPORATION
By:________________________________
Name:
Title:
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.L.C.
By:________________________________
Name:
Title:
Accepted as of the date hereof: STONE STREET FUND 1994, X.X.
Xxxxxxx, Xxxxx & Co. By: Xxxxx Xxxxxx 0000, X.X.X.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities LLC
UBS Securities LLC By:________________________________
Name:
By:____________________________________ Title:
(Xxxxxxx, Sachs & Co.)
BRIDGE STREET FUND 1994, L.P.
On behalf of each of the Underwriters By: Xxxxx Xxxxxx 0000, X.X.X.
By:________________________________
Name:
Title:
25
SCHEDULE I
NUMBER OF
OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ---------
Xxxxxxx, Xxxxx & Co...........................
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
UBS Securities LLC
--------- ---------
Total....................................
========= =========
26
SCHEDULE II
Number of
Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
The Selling Stockholder(s):
GS Capital Partners, L.P. (a)............
Stone Street Fund 1994, L.P. (a).........
Xxxxxx Xxxxxx Xxxx 0000, X.X. (a)........
--------- ---------
Total....................................
========= =========
---------
(a) This Selling Stockholder is represented by _______________________ of
Xxxxxxx, Xxxxx & Co., whose address is 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
27
SCHEDULE III
PRINCIPAL SUBSIDIARIES
PRL International, Inc.
PRL USA, Inc.
Fashions Outlet of America, Inc.
PRL Trans Atlantic, Inc.
PRL European Enterprises, Inc.
Aqui Polo C.V.
Polo Hold BV
Xxxx Xxxxx Xxxxxx Europe SARL
Polo Retail Europe Limited
28
ANNEX I
FORM OF COMFORT LETTER
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included and/or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
separately furnished to the representatives of the Underwriters (the
"Representatives");
(iii)They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included and/or
incorporated by reference in the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the
Representatives; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus,
for them to be conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of
2
performance shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified
by the Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in
the Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other items
specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(vii)In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by reference
in the Prospectus specified by the Representatives, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them
to be in agreement.
3
ANNEX II(a)
Form of Xxxx, Xxxxx Opinion
February __ 2004
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
UBS Securities LLC
As representatives of the underwriters
named in Schedule 1 to the Underwriting
Agreement described below
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx Xxxxx Xxxxxx Corporation
Ladies and Gentlemen:
We have acted as special counsel to Xxxx Xxxxx Lauren Corporation, a
Delaware corporation (the "Company"), in connection with the Underwriting
Agreement (the "Underwriting Agreement"), dated February __, 2004, by and among
the underwriters named in Schedule I thereto (the "Underwriters"), for whom you
are acting as representatives, the Company, and the selling stockholders listed
on Schedule II to the Underwriting Agreement, relating to the purchase on the
date hereof by the Underwriters of __________ shares of the Company's Class A
Common Stock, par value $.01 per share (the "Shares"). Capitalized terms used
herein and not otherwise defined have the respective meanings given those terms
in the Underwriting Agreement. This opinion is being furnished at the request of
the Company pursuant to Section 7(c) of the Underwriting Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a Registration Statement on Form S-3 (File No. 333-_____)
under the Securities Act of 1933, as amended (the "Act"). The Registration
Statement was filed on February __, 2004, and was amended by Amendment No. 1
filed on February __, 2004. Such Registration Statement at the time it became
effective under the Act, including the documents incorporated by reference
therein, is herein called the "Registration Statement." The prospectus included
as part of the Registration Statement, including the documents incorporated by
reference therein, and the final prospectus as filed pursuant to Rule 424(b)
under the Act, including the documents incorporated by reference therein, are
collectively referred to herein as the "Prospectus".
In connection with the furnishing of this opinion, we have examined
originals, or copies certified or otherwise identified to our satisfaction, of
the following documents:
(i) The Registration Statement (including those documents
incorporated by
reference therein);
(ii) the Prospectus;
(iii) the Underwriting Agreement;
(iv) those documents either filed as an exhibit to the Registration
Statement or filed as an exhibit to a document incorporated by
reference in the Registration Statement; and
(v) a specimen certificate for the Shares.
In addition, we have examined: (i) such corporate records of the
Company as we have considered appropriate, including a copy of the Certificate
of Incorporation and By-laws of the Company certified as in effect on the date
hereof by an officer of the Company and copies of resolutions of the board of
directors of the Company certified by an officer of the Company; and (ii) such
other certificates, agreements and documents as we deemed relevant and necessary
as a basis for the opinions hereinafter expressed. We have also examined and
relied upon certificates of public officials, and certificates of, and
representations and warranties made in the Underwriting Agreement by, officers
of the Company as to certain factual matters.
In rendering the opinions set forth below, we have assumed, without
independent investigation, that each of the parties (other than the Company, as
applicable) to the Underwriting Agreement has complied with all of its
obligations and agreements arising under such agreement and that such agreement
is enforceable against each party thereto other than the Company, the
genuineness of all signatures, the legal capacity of all individuals who have
executed any of the documents reviewed by us, the authenticity of all documents
submitted to us as originals, the conformity to the originals of all documents
submitted to us as certified, photostatic, reproduced or conformed copies of
valid existing agreements or other documents, the authenticity of all such
latter documents and that the statements regarding matters of fact in the
certificates, records, agreements, instruments and documents that we have
examined are accurate and complete.
Whenever we indicate that our opinion is based upon our knowledge,
our opinion is based solely on the actual knowledge of the attorneys in this
firm who are representing the Company in connection with the transactions
contemplated by the Underwriting Agreement and without any independent
verification.
Based upon the foregoing, and subject to the assumptions, exceptions
and qualifications set forth herein, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware, with corporate power
and authority to own its properties and conduct its business as described in the
Prospectus.
2. The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued and outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, fully paid and
non-assessable; and the Shares conform in all material respects as to legal
matters to the description of the Stock contained in the Prospectus.
2
3. Based solely on our review of certificates from public officials,
the Company has been duly qualified as a foreign corporation for the transaction
of business in, and is in good standing under the laws of, the states of
California, Georgia, Illinois, Kentucky, New Jersey, New York, North Carolina,
Pennsylvania, Texas and Washington.
4. Based solely on our review of certificates from public officials
(and, with respect to Aqui Polo C.V., based solely on the opinion of Loyens &
Loeff, Netherlands counsel), each of the Principal Subsidiaries has been duly
incorporated or organized, as the case may be, and is validly existing as a
corporation, a limited partnership or limited liability company, as applicable,
in good standing under the laws of its jurisdiction of incorporation or
organization; and all of the issued and outstanding shares of capital stock,
partnership interests, membership interests or other equity interests, as
applicable, of each such Principal Subsidiary have been duly authorized and
validly issued, and, in the case of the Principal Subsidiaries other than Aqui
Polo C.V., are fully paid and non-assessable (in the case of Aqui Polo C.V., the
commitment obligations associated with the equity interests have been
fulfilled), and (except for directors' qualifying shares) are owned of record
directly or indirectly by the Company, and, to our knowledge are owned free and
clear of all liens, encumbrances or claims other than those as may have been
created by pledges to lenders under certain of the Company's credit agreements.
5. To our knowledge and other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
reasonably be expected to have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to our knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
6. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
7. The compliance by the Company with all of the provisions of the
Underwriting Agreement and the performance by the Company of its obligations
thereunder (i) will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument and
which is either filed as an exhibit to the Registration Statement or filed as an
exhibit to a document incorporated by reference in the Registration Statement,
(ii) will not result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any Applicable Law, or (iii) to our
knowledge, based solely on an officer's certificate from an officer of the
Company and without independent inquiry, any order applicable to the Company or
any of its Principal Subsidiaries. As used in this letter, "Applicable Law"
shall mean the federal laws of the United States, the laws of the State of New
York and the General Corporation Law of the State of Delaware, in each case
which, in our experience, are normally applicable to transactions of the type
contemplated by the Underwriting Agreement.
8. Based on our review of Applicable Law, but without any
investigation concerning any other laws, rules or regulations, no consent,
approval, authorization, order of, or registration or qualification with any
United States federal, New York or Delaware court or
3
governmental agency or body is required for the performance by the Company of
its obligations under the Underwriting Agreement, except the registration under
the Act (which has been obtained) or under state securities or Blue Sky laws of
the Shares.
9. The description of the Company's capital stock included or
incorporated by reference in the Prospectus insofar as it purports to constitute
a summary of the terms of the Stock is accurate and fair in all material
respects.
10. The Company is not required to register as an "investment
company" under the Investment Company Act and the rules and regulations
promulgated thereunder.
* * *
Each document incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements, financial statements schedules
and other financial data included in or omitted therefrom and related schedules
therein, as to which we need express no belief), when it became effective or was
filed with the Commission, as the case may be, appears on its face to be
appropriately responsive in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder;
assuming that the statements made in such documents are complete and correct.
Each of the Registration Statement and the Prospectus as of their
respective effective or issue dates and any further amendments and supplements
thereto made by the Company prior to the Time of Delivery (other than the
financial statements, financial statement schedules and other financial data
included in or omitted therefrom and related schedules therein, as to which we
express no belief) appears on its face to be appropriately responsive in all
material respects to the requirements of the Act and the rules and regulations
thereunder; although we do not assume any responsibility for the accuracy or
fairness of the statements contained in the Registration Statement or the
Prospectus, except for those referred to in this opinion in paragraph 9 above.
* * *
In connection with the preparation of the Registration Statement and
the Prospectus, we have participated in conferences with directors, officers and
other representatives of the Company, representatives of various of the Selling
Stockholders, representatives of the independent auditors for the Company,
representatives of the Underwriters and representatives of counsel for the
Underwriters, at which conferences the contents of the Registration Statement,
the Prospectus, the documents incorporated by reference prepared by the Company
and related matters were discussed and, on the basis of such participation
(relying as to various questions of fact relevant to the opinion expressed
herein upon the representations and statements of officers and other
representatives of the Company) but without independent verification of the
accuracy, completeness, or fairness of the statements contained in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
no facts have come to our attention which have caused us to believe that (a) the
Registration Statement or any amendment thereto made by the Company prior to the
Time of Delivery (except for the financial statements, financial statement
schedules and other financial data included in or incorporated by reference or
omitted therefrom, as to which we need express no belief),
4
at the time the Registration Statement became effective and on the date of this
opinion, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (b) the Prospectus or any amendment or supplement
thereto made by the Company prior to the Time of Delivery (except for the
financial statements, financial statement schedules and other financial data
included or incorporated by reference or omitted therefrom, as to which we need
express no belief), at the time the Prospectus was issued and on the date of
this opinion, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and we do not know
of any amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an exhibit
to the Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required.
We have been advised orally by the staff of the Commission that the
Registration Statement was declared effective under the Act at __ p.m. on
February __, 2004 and that no stop order suspending the effectiveness of the
Registration Statement had been issued and to our knowledge no proceedings for
that purpose have been initiated or are pending or are threatened by the
Commission.
The opinions expressed herein are limited to the laws of the State
of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States. Our opinions are rendered only with respect
to the laws, and the rules, regulations and orders thereunder, that are
currently in effect. Please be advised that no member of this firm is admitted
to practice in the State of Delaware. This letter is furnished by us solely for
your benefit in connection with the transactions referred to in the Underwriting
Agreement and may not be circulated to, or relied upon by, any other person
without our prior written consent.
Very truly yours,
XXXX, WEISS, RIFKIND, XXXXXXX & XXXXXXXX LLP
5
ANNEX II(b)
Form of Xxxxxxxxx Traurig, LLP Opinion
February __, 2004
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
UBS Securities LLC
As Representative of the several
Underwriters
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxx Xxxxx Lauren Corporation
Secondary Offering
Ladies and Gentlemen:
We are trademark counsel to Xxxx Xxxxx Xxxxxx Corporation (the
"Company") and have been asked to deliver this opinion in connection with the
underwriting agreement dated as of February __, 2004 (the "Underwriting
Agreement"), among the Company, Xxxxxxx, Sachs & Co., Credit Suisse First Boston
LLC, X.X. Xxxxxx Securities Inc. and UBS Securities LLC, as representatives of
the several underwriters (the "Underwriters") named in Schedule I thereto and
the stockholders of the Company listed in Schedule II thereto (the "Selling
Stockholders") in connection with the underwritten public offering of up to
__________ shares (the "Shares") of Class A common stock, par value $.01 per
share (the "Class A Common Stock"), of the Company, of which __________ shares
of Class A Common Stock are subject to over-allotment options. This opinion is
delivered to you pursuant to Section 7(d) of the Underwriting Agreement. All
capitalized terms used herein that are defined in the Underwriting Agreement
have the meanings assigned to such terms therein unless defined herein. Unless
otherwise defined herein the terms defined in the Underwriting Agreement and
used herein are used as defined in the Underwriting Agreement.
We have represented the Company since 1978 in connection with most,
although not all, of its trademark related matters. In connection with the
preparation and delivery of this opinion, we have reviewed the records of our
firm and have discussed certain matters with representatives of the Company, but
have not conducted any independent investigations into the matters set forth
herein.
We have also considered such matters of the United States Trademark
Law as we have deemed necessary or appropriate as a basis of our opinion set
forth herein. Except for the above described documents, we have not reviewed any
documents or agreements ("Other Documents or Agreements") entered into or to be
entered into in connection with the Underwriting Agreement, nor have we
participated in the negotiations among said parties in connection with either
the Underwriting Agreement or the Other Documents or Agreements, and our opinion
is expressly made subject to any relevant provisions which may be contained in
said Other Documents or Agreements.
Based on the foregoing, we are of the opinion that:
1. Except as disclosed in the Prospectus, the Company and its
subsidiaries together own or have rights to use the trademarks
XXXX, XXXXX LAUREN and CHAPS/XXXXX XXXXXX (the "Principal
Trademarks") in their businesses as described in the
Prospectus, without any conflict known to us with any
intellectual property rights of third parties that would,
individually or in the aggregate, have a material adverse
effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries in the United States.
2. To our knowledge, there is no infringement in the United
States by others of the Principal Trademarks that would,
individually or in the aggregate, have a material adverse
effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries.
This opinion has been prepared for use by the Underwriters and may
not be relied upon, or published or released in any manner or submitted to any
other party without our prior written consent.
This opinion is limited by the qualifications set forth above.
Very truly yours,
XXXXXXXXX TRAURIG, LLP
ANNEX II(c)
Form of [___________________] Opinion
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
UBS Securities LLC
as Representatives of the several Underwriters
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
I am an Assistant General Counsel of Xxxxxxx, Sachs & Co. (collectively
with its affiliates, "Xxxxxxx Xxxxx"), a limited partnership formed under the
Revised Limited Partnership Act of the State of New York. This opinion is being
delivered to you pursuant to Section 7(e) of the Underwriting Agreement, dated
February __, 2004 (the "Underwriting Agreement"), among the Xxxx Xxxxx Lauren
Corporation (the "Company"), the several Underwriters named in Schedule I
thereto (the "Underwriters") and the Selling Stockholders (as defined below).
For purposes of this letter, the term "Selling Stockholders" means GS
Capital Partners, L.P. ("GSCP"), Stone Street Fund 1994, L.P. ("Stone Street")
and Xxxxxx Xxxxxx Xxxx 0000, X.X. ("Xxxxxx Xxxxxx"), each a limited partnership
formed under the Revised Uniform Limited Partnership Act of the State of
Delaware (the "DRULPA"). The general partner of GSCP is GS Advisors, L.L.C., a
limited liability company formed under the Delaware Limited Liability Company
Act (the "DLLCA") that is wholly-owned by The Xxxxxxx Xxxxx Group, Inc. ("GS
Group"). The general partner of Stone Street and the managing general partner of
Bridge Street is Stone Street 1994, L.L.C., a limited liability company formed
under the DLLCA that is wholly owned by GS Group. Xxxxxxx, Xxxxx & Co. is wholly
owned by GS Group.
All capitalized terms used herein that are defined in the Underwriting
Agreement have the meanings assigned to such terms therein unless defined
herein. As used herein, "Applicable Law" means the federal laws of the United
States and the laws of the State of New York known by me to be applicable to the
Selling Stockholders, and the DRULPA and the DLLCA. With your permission, all
assumptions and statements of reliance herein have been made without any
independent investigation or verification on my part except to the extent
otherwise expressly stated, and I express no opinion with respect to the subject
matter or accuracy of such assumptions or items relied upon.
I have examined the originals, or certified, conformed or reproduction
copies, of all such records, agreements, instruments and documents as I have
deemed relevant or necessary as the basis for the opinions hereinafter
expressed, including, without limitation, the Underwriting Agreement. I have
examined only such documents as were supplied to us by the Selling Stockholders.
In all such examinations, I have assumed that all persons executing documents
have the legal capacity to execute and deliver those documents. In all such
examinations, I have assumed the genuineness of all signatures on original or
certified copies and the
conformity to original or certified copies of all copies submitted to me as
confirmed or reproduction copies.
As to various questions of fact relevant to such opinion, I have relied
upon, and assumed the accuracy of, the statements made in the certificate
attached hereto as Annex A, the representations and warranties of the Company
and each Selling Stockholder contained in the Underwriting Agreement and
certificates and oral or written statements and other information of or from
public officials, officers or representatives of Xxxxxxx Sachs or the Company,
the Selling Stockholders and others, and have assumed compliance on the part of
all parties to the Underwriting Agreement with the covenants and agreements
contained therein. In addition, I have considered such questions of law and
other matters as I have considered necessary or appropriate for the purposes of
the opinions hereinafter expressed.
Whenever my opinion is qualified by the phrase "to my knowledge," or
similar language, it is intended to indicate that during the course of
representing the Selling Stockholders no information has come to my attention
which has given me actual knowledge of the facts or circumstances referred to.
Based upon the foregoing, and subject to the limitations, qualifications
and assumptions set forth herein, I am of the opinion that:
(i) The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Stockholder. To my knowledge, the sale
of the Shares being sold by each Selling Stockholder on the date hereof will not
conflict with or result in a breach or violation of any terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to me to which such
Selling Stockholder is a party or by which such Selling Stockholder is bound or
to which any of the property or assets of such Selling Stockholder is subject
(except as has been duly waived); nor will such action result in any violation
of (i) the Agreement of Limited Partnership of such Selling Stockholder, as such
may have been amended as of the date hereof, (ii) any Applicable Law (except
that I express no opinion as to the federal securities laws of the United States
of America, the securities or Blue Sky laws of the various states of the United
States of America or any foreign securities laws in connection with the offer
and sale of the Shares), or (iii) any order known to me of any court or
governmental agency or body of the United States of America or the State of New
York having jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder to which such Selling Stockholder is bound.
(ii) To my knowledge, no consent, approval, authorization or order of any
court or governmental agency or body of the United States of America or the
State of New York known to me to be applicable to such Selling Stockholder is
required for the sale of the Shares being sold by each Selling Stockholder on
the date hereof, except that I express no opinion as to the federal securities
laws of the United States of America, the securities or Blue Sky laws of the
various states of the United States of America or any foreign securities laws in
connection with the purchase and distribution of such Shares by the
Underwriters, as the case may be.
(iii) Upon payment for the Shares and the delivery to The Depository Trust
Company ("DTC") of such Shares registered in the name of Cede & Co. and the
crediting of such Shares to the Underwriters' accounts with DTC, the
Underwriters will acquire a valid security entitlement with respect to the
Shares, and no action based on an adverse claim may be asserted against the
Underwriters with respect to such security entitlement (assuming that the
Underwriters are without notice of any such adverse claim).
The opinions expressed herein are limited to the federal laws of the
United States of America, the laws of the State of New York and, to the extent
required by the opinions expressed herein, the DRULPA and the DLLCA. The opinion
expressed in paragraph (iii) above is limited solely to (and terms are used
therein as defined in) Article 8 of the Uniform Commercial Code as currently in
effect in the State of New York. I express no opinion regarding (1) the effect
of any rule adopted by a clearing corporation governing the rights and
obligations among such clearing corporation and the participants in such
clearing corporation, (2) the effect of a bankruptcy, insolvency, receivership,
conservatorship or similar event with respect to a securities intermediary, or
(3) the nature or extent of any securities intermediary's right, title or
interest in or to any of the assets underlying the security entitlements.
The opinions set forth herein are solely for your benefit in connection
with the Underwriting Agreement and may not be relied upon in any manner or by
any other person and may not be quoted in whole or in part without my prior
written consent.
Very truly yours,
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