Exhibit B
The Xxxxxxx Xxxxx Group, Inc.
Common Stock
(par value $.01 per share)
Underwriting Agreement
----------------------
January 7, 2002
Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Certain stockholders of The Xxxxxxx Xxxxx Group, Inc., a Delaware
corporation (the "Company"), named in Schedule II hereto (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 14,125,724 shares (the "Shares") of common stock, par value $.01
per share ("Stock"), of the Company. The Estate of Xxxxxxx Xxxxxx Xxxxxx is
joining in and consenting to the sale of Stock by Kamehameha Activities
Association, and for the purposes of Sections 1(b) and (2), the introductory
paragraph to Section 7, and Sections 7(d), 7(e), 7(k), 9, 10, 11, and 12 and the
first paragraph following Section 15 only, all references to a Selling
Stockholder shall include Kamehameha Activities Association and the Estate of
Xxxxxxx Xxxxxx Xxxxxx, jointly as if they were one Selling Stockholder. Without
limiting the generality of the foregoing, the Estate of Xxxxxxx Xxxxxx Xxxxxx
intends to and hereby agrees to sell, pursuant to Section 2 hereof, all of its
interest, if any, in the Shares to be sold by Kamehameha Activities Association.
1. a. The Company represents and warrants to, and agrees with the
Underwriters that:
i. A registration statement on Form S-3 (File No. 333-74004)
(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, 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 or will become 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, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; 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 Xxxxxxx, Xxxxx & 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 Act or
the Exchange Act, as applicable, 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
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supplement thereto, 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 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;
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 Xxxxxxx, Xxxxx & 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 (the
"Significant Subsidiaries") that are listed or that are required to be
listed in Exhibit 21.1 to the Company's Annual Report on Form 10-K for the
fiscal year ended November 24, 2000 (the "2000 Annual Report") 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 as amended or supplemented; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus as amended or supplemented, there has not been
any material change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
as amended or supplemented;
vi. The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are
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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;
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 power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; the Company 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; each
corporate subsidiary of the Company that is a Significant Subsidiary (a
"Corporate Significant Subsidiary"), each partnership subsidiary of the
Company in which the Company or one of its subsidiaries is a general
partner that is a Significant Subsidiary (a "Partnership Significant
Subsidiary"), each unlimited liability company subsidiary of the Company
that is a Significant Subsidiary (a "ULLC Significant Subsidiary") and each
limited liability company in which the Company or one of its subsidiaries
is a managing member that is a Significant Subsidiary (an "LLC Significant
Subsidiary") has been duly incorporated or organized, as the case may be,
and is validly existing as a corporation, partnership, unlimited liability
company or limited liability company, as the case may be, in good standing
under the laws of its jurisdiction of incorporation or organization, as the
case may be, with the power (corporate, partnership, unlimited liability
company or limited liability company, as the case may be) and authority to
own its properties and conduct its business as described in the Prospectus;
viii. The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company, including the Shares, have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the description of
the capital stock contained in the Prospectus; all of the issued shares of
capital stock of each Corporate Significant Subsidiary, all of the issued
shares of each ULLC Significant Subsidiary and all of the membership
interests in each LLC Significant Subsidiary have been duly and validly
authorized and issued, are fully paid and, in the case of any Corporate
Significant Subsidiaries and LLC Significant Subsidiaries, are
non-assessable and (except for (A) directors' qualifying shares and (B) 50%
of the interests in Xxxxxxx Sachs Holdings L.L.C.) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; and all of the partnership interests in each
Partnership Significant Subsidiary have been duly and validly created and
(except for interests in Xxxxxxx Xxxxx Mitsui Marine Derivative Products,
L.P.) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
ix. The compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the Certificate of
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Incorporation or By-laws of the Company or the organizational documents of
any of its Significant Subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties; and
no consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required to be
obtained or made by the Company for the sale of the Shares or 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 or foreign 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 Significant Subsidiaries is
in violation of its organizational documents or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound;
xi. The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the securities described therein, and in the
Prospectus as amended or supplemented through the Time of Delivery under
the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair;
xii. Other than as set forth in the Prospectus as amended or
supplemented through the Time of Delivery, 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;
xiii. The Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
xiv. The Company and its Significant Subsidiaries possess all
concessions, permits, licenses, consents, exceptions, franchises,
authorizations, orders, registrations and qualifications issued by the
appropriate Federal, state and foreign governments, governmental or
regulatory authorities, self-regulatory organizations and all courts or
other tribunals, and are members in good standing of each Federal, state or
foreign exchange, board of trade, clearing house or association and
self-regulatory or similar organization necessary to conduct their
respective businesses as described in the Prospectus, except as would not,
individually or in the aggregate, have a material adverse effect on the
prospects, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole; and
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xv. PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries and SLK LLC and its
subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder.
b. Each of the Selling Stockholders, severally and not jointly, represents
and warrants to, and agrees with, the Underwriters and the Company that:
i. No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any other person is required for the
execution and delivery of this Agreement, the Power of Attorney and the
Custody Agreement, in each case, referred to in clause (vii) below, the
sale of the Shares to be sold by such Selling Stockholder or the
consummation by such Selling Stockholder of the transactions contemplated
by this Agreement, the Power of Attorney or the Custody Agreement, except
that such Selling Stockholder may need to file an amendment to any report
on Schedule 13D relating to the Company previously filed by such Selling
Stockholder and except the registration under the Act of the Shares, which
has been made, and such as may be required under state securities or Blue
Sky laws, which consents, approvals, authorizations, orders and filings are
the only consents, approvals, authorizations, orders and filings necessary
for the execution and delivery by such Selling Stockholder of this
Agreement, the Power of Attorney and the Custody Agreement and for the sale
and delivery of the Shares to be sold by such Selling Stockholder hereunder
and such Selling Stockholder has full right, power and authority to enter
into this Agreement, the Power of Attorney and the Custody Agreement and to
sell, assign, transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder;
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, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound, or to which any of the property or assets of
such Selling Stockholder is subject; nor will such action result in any
violation of the provisions of the certificate of incorporation, by-laws or
other organizational or constituent documents of such Selling Stockholder
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
iii. Such Selling Stockholder has, and immediately prior to the Time
of Delivery such Selling Stockholder will have, good and valid title to the
Shares to be sold by such Selling Stockholder hereunder, free and clear of
all liens, encumbrances, equities or claims, and, upon delivery of such
Shares and payment therefor pursuant hereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims, will
pass to the Underwriters;
iv. 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;
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v. 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
the Time of Delivery a properly completed and executed United States
Treasury Department Form W-8BEN, W 8IMY or W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof);
vi. To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Stockholder expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be,
will, conform in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and did not and will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading (information furnished by Kamehameha
Activities Association to the Company for this purpose shall include any
information provided to the Company by the Estate of Xxxxxxx Xxxxxx Xxxxxx
to the extent set forth in Section 8(b));
vii. The Shares to be sold by such Selling Stockholder hereunder have
been placed in custody under a Non-ERISA Domestic Custody Agreement, dated
May 7, 1999, together with Instructions to Custodian, in each case, in the
form heretofore furnished to you (the "Custody Agreement"), duly
authorized, executed and delivered by such Selling Stockholder to The Chase
Manhattan Bank, as custodian (the "Custodian"); such Selling Stockholder
has duly authorized, executed and delivered a Power of Attorney, in the
form heretofore furnished to you (the "Power of Attorney"), appointing the
persons indicated in Schedule II hereto, and each of them, as such Selling
Stockholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to
authorize the delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder in
connection with the transactions contemplated by this Agreement and the
Custody Agreement; and such Selling Stockholder (in the case of Kamehameha
Activities Association, jointly with the Estate of Xxxxxxx Xxxxxx Xxxxxx)
has duly authorized, executed and delivered this Agreement; and
viii. The Shares held in custody for such Selling Stockholder under
the Custody Agreement are subject to the interests of the Underwriters
under this Agreement; the arrangements made by such Selling Stockholder for
such custody, and the appointment by such Selling Stockholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable;
the obligations of such Selling Stockholder hereunder shall not be
terminated by operation of law, whether, in the case of an estate or trust,
by the death, disability, incompetency or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if any executor or
trustee should die or become disabled, incompetent or incapacitated, or if
any such estate or trust should be terminated, or if any such partnership
or corporation should be dissolved, or if
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any other such event should occur, before the delivery of the Shares
hereunder, the Shares to be sold by such Selling Stockholder hereunder
shall be delivered by or on behalf of such Selling Stockholder in
accordance with the terms and conditions of this Agreement and the Custody
Agreement; and actions taken by the Attorneys-in-Fact pursuant to the
Powers of Attorney shall be as valid as if such death, disability,
incompetency, incapacity, termination, dissolution or other event had not
occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, disability, incompetency, incapacity, termination, dissolution or
other event.
2. Subject to the terms and conditions herein set forth, each of the
Selling Stockholders, severally and not jointly (except that Kamehameha
Activities Association and the Estate of Xxxxxxx Xxxxxx Xxxxxx are acting
jointly), agrees to sell to the Underwriters, and Underwriters agree to purchase
from each of the Selling Stockholders, at the purchase price per share of
$91.605, the number of Shares set forth opposite the name of such Selling
Stockholder on Schedule II.
3. Upon the authorization by you of the release of the Shares, the
Underwriters propose to offer the Shares for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented through the Time of
Delivery.
4. a. The Shares, in definitive form and in such authorized denominations
and registered in such names as Xxxxxxx, Sachs & 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, Xxxxx & Co., including,
at the option of Xxxxxxx, Sachs & Co., through the facilities of The Depository
Trust Company ("DTC"), for the account of the Underwriters, against payment by
or on behalf of the Underwriters of the purchase price therefor (net of expenses
in the amount of $552,679 to be paid by the Selling Stockholders at the Time of
Delivery pursuant to Section 6) by wire transfer of Federal (same-day) funds to
the account specified to Xxxxxxx, Xxxxx & Co. by the Custodian upon at least
forty-eight hours' prior notice. Kamehameha Activities Association and the
Estate of Xxxxxxx Xxxxxx Xxxxxx agree that Kamehameha Activities Association
will receive payment for the Shares to be sold jointly by them. The Selling
Stockholders will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery at the office of Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or at the office of DTC or its designated custodian, as the
case may be (the "Designated Office"). The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on January 10, 2002 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 Shares is herein
called the "Time of Delivery".
b. The documents to be delivered at the 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 Xxxxxxxx & Xxxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 (the "Closing Location"), and the Shares
will be delivered at the Designated Office, all at the Time of Delivery. A
meeting will be held at the Closing Location at 2:30 p.m., New York City time,
on the second New York Business Day next preceding the 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,
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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 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 Time of
Delivery (other than any amendment or supplement effected through the filing of
a report under the Exchange Act) which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies thereof; to
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 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; and to comply with all applicable securities and other laws, rules
and regulations in each such jurisdiction;
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 prior to the expiration of nine months after the time of issue of
the Prospectus in connection with the offering or sale of the Shares and if at
such time any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference in the
Prospectus, to notify you and upon your request to file such document and to
prepare and furnish without charge to the
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Underwriters 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 the Underwriters are 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 the
Underwriters, to prepare and deliver to the Underwriters 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
under the Act);
e. To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), to make available to its stockholders consolidated
summary financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
f. 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 generally, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission); and
g. If the Company elects to rely upon Rule 462(b) under the Act, to 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
at the time of filing to either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or to 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 Underwriters that each Selling Stockholder will
pay or cause to be paid the following in proportion to the number of Shares sold
by such Selling Stockholder: (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, closing documents
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(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Shares; (iii) the filing fees
incident to, and the fees and disbursements of counsel in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; (iv) the cost and charges of any
transfer agent or registrar; (v) all expenses and taxes (domestic and foreign)
incident to the sale and delivery of the Shares by such Selling Stockholder to
the Underwriters; (vi) any fees and expenses of counsel for such Selling
Stockholder and (vii) all transfer taxes incident to the sale and delivery of
the Shares to be sold by such Selling Stockholder. The Selling Stockholders
agree that the expenses set forth in the preceding sentence (other than the
expenses of Xxxxx & Co., Inc., which the Selling Stockholders jointly and
severally agree they will pay directly) will be deducted from the purchase price
for the Shares paid by or on behalf of the Underwriters at the Time of Delivery.
In connection with clause (vii) of the first sentence of this Section 6,
Xxxxxxx, Sachs & Co. agrees to pay New York State stock transfer tax, and the
Selling Stockholders agree to reimburse Xxxxxxx, Xxxxx & Co. for associated
carrying costs in proportion to the number of Shares sold if such tax payment is
not rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that the Company shall bear, and the Selling
Stockholders shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 8 and 10 hereof, the Underwriters will pay all of their own costs
and expenses, 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, as to the Shares to be delivered
at the Time of Delivery, shall be subject, in the discretion of the
Underwriters, 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 the 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) under the Act, the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the reasonable
satisfaction of the Underwriters;
x. Xxxxxxx, Swaine & Xxxxx, special counsel for SMBC Capital Markets,
Inc., as indicated in Schedule II hereto, shall have furnished to you their
written opinion (a draft of such opinion is attached as Annex II(a) hereto),
dated the Time of Delivery, in form and substance satisfactory to you, to the
effect that:
i. This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder;
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ii. No consent, approval, authorization or order of, or filing with,
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 the
registration under the Act of such Shares, which has been duly obtained and
is in full force and effect, the filing of an amendment to such Selling
Stockholder's Schedule 13D with respect to the Company 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;
iii. Upon delivery of the Shares (within the meaning of Section 8-301
of the Uniform Commercial Code) to the Underwriters at the Time of
Delivery, payment therefor by the Underwriters, as provided for herein, and
registration of the certificates representing the Shares as instructed by
the Underwriters, the Underwriters will be protected purchasers (within the
meaning of Section 8-303 of the Uniform Commercial Code) of the Shares and
will acquire all rights of such Selling Stockholder in the Shares free of
any adverse claims (as defined in Section 8-102(a)(1) of the Uniform
Commercial Code), assuming that the Underwriters are acting without notice
of any adverse claim (within the meaning of Section 8-105 of the Uniform
Commercial Code); and
iv. A Power of Attorney and Custody Agreement have been duly executed
and delivered by such Selling Stockholder and constitute valid and binding
agreements of such Selling Stockholder in accordance with their terms.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware;
c. Xxxxxx X. Xxxxxxx, counsel to SMBC Capital Markets, Inc., as indicated
in Schedule II hereto, shall have furnished to you his written opinion (a draft
of such opinion is attached as Annex II(b) hereto), dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that:
i. 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, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound, or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the organizational documents of such Selling
Stockholder or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
ii. Immediately prior to the Time of Delivery, such Selling
Stockholder had good and valid title to the Shares to be sold by such
Selling Stockholder, free and clear of all liens, encumbrances, equities or
claims, and full right, power and
-12-
authority to sell, assign, transfer and deliver such Shares under this
Agreement; and
iii. A Power of Attorney and Custody Agreement have been duly
authorized, executed and delivered by such Selling Stockholder and
constitute valid and binding agreements of such Selling Stockholder in
accordance with their terms.
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware and in rendering the opinion in subparagraph (ii) such
counsel may rely upon a certificate of such Selling Stockholder in respect of
matters of fact as to ownership of, and liens, encumbrances, equities or claims
on the Shares sold by such Selling Stockholder hereunder, provided that such
counsel shall state that he believes that you and he are justified in relying
upon such certificate;
x. Xxxxxxx, Xxxxxx & Xxxxx, special counsel for Kamehameha Activities
Association and the Estate of Xxxxxxx Xxxxxx Xxxxxx, acting jointly as if they
were one Selling Stockholder, as indicated in Schedule II hereto, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II(c) hereto), dated the Time of Delivery, in form and substance
satisfactory to you, to the effect that:
i. This Agreement has been duly executed and delivered by or on
behalf of such Selling Stockholder;
ii. No consent, approval, authorization or order of, or filing with,
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 the
registration under the Act of such Shares, which has been duly obtained and
is in full force and effect, the filing of an amendment to such Selling
Stockholder's Schedule 13D with respect to the Company 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;
iii. Upon delivery of the Shares (within the meaning of Section 8-301
of the Uniform Commercial Code) to the Underwriters at the Time of
Delivery, payment therefor by the Underwriters, as provided for herein, and
registration of the certificates representing the Shares as instructed by
the Underwriters, the Underwriters will be protected purchasers (within the
meaning of Section 8-303 of the Uniform Commercial Code) of the Shares and
will acquire all rights of such Selling Stockholder in the Shares free of
any adverse claims (as defined in Section 8-102(a)(1) of the Uniform
Commercial Code), assuming that the Underwriters are acting without notice
of any adverse claim (within the meaning of Section 8-105 of the Uniform
Commercial Code); and
iv. A Power of Attorney and Custody Agreement have been duly executed
and delivered by such Selling Stockholder and constitute valid and binding
agreements of such Selling Stockholder in accordance with their terms.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the Federal laws of the
United States and the laws
-13-
of the State of New York. Such counsel may also state that as to matters of law
of the State of Hawaii, such counsel has relied on the opinion to you referred
to in Section 7(e) below;
e. Cades Xxxxxxx Xxxxxxx & Xxxxxx A Limited Liability Law Company, counsel
for Kamehameha Activities Association and the Estate of Xxxxxxx Xxxxxx Xxxxxx,
acting jointly as if they were one Selling Stockholder, as indicated in Schedule
II hereto, shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex II(d) hereto), dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
i. 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 the compliance by such
Selling Stockholder with all of the provisions of this Agreement, the Power
of Attorney and the Custody Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of the terms or provisions of, or
constitute a default under, (i) the organizational or constituent documents
of such Selling Stockholder, (ii) any statute, rule or regulation of any
Hawaii governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder, (iii) to such
counsel's knowledge, after due inquiry of such Selling Stockholder, any
order of any court or governmental agency or body having jurisdiction over
such Selling Stockholder or the property of such Selling Stockholder, or
(iv) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which Kamehameha Activities Association is a
party or by which Kamehameha Activities Association is bound, or to which
any of the property or assets of Kamehameha Activities Association is
subject as identified to such counsel by an officer of Kamehameha
Activities Association as being all agreements or instruments that relate
to over $1,000,000 of indebtedness or contain any limitation or restriction
on transfers of securities by Kamehameha Activities Association;
ii. No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement to be taken by such
Selling Stockholder in connection with the Shares to be sold by such
Selling Stockholder hereunder, except such as may be required under Hawaii
securities or Blue Sky laws in connection with the purchase and
distribution of such Shares by the Underwriters;
iii. Immediately prior to the sale of the Shares to be sold by such
Selling Stockholder under this Agreement, such Selling Stockholder was the
record and beneficial owner of such Shares to be sold at the Time of
Delivery, free and clear, to such counsel's knowledge, of adverse claims;
iv. Assuming that the Shares to be sold by such Selling Stockholder
and the certificate(s) therefor have been delivered to the Underwriters,
registered in the names of the Underwriters (upon registration of
transfer), or indorsed to the Underwriters or in blank, and the
Underwriters acquire their interests in such Shares without notice of any
adverse claim (within the meaning of section 8-105 of the Uniform
Commercial Code), the Underwriters will acquire record and beneficial
ownership of such Shares free and clear of adverse claims;
-14-
v. Such Selling Stockholder has the power and authority to sell,
assign, transfer and deliver the Shares to be sold by such Selling
Stockholder under this Agreement; and
vi. A Power of Attorney and, in the case of Kamehameha Activities
Association, a Custody Agreement have been duly authorized, executed and
delivered by such Selling Stockholder and the Power of Attorney constitutes
a valid and binding instrument of such Selling Stockholder in accordance
with its terms subject to revocation upon written notice.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the State of
Hawaii and in rendering the opinion in subparagraph (iii) such counsel may rely
upon a certificate of such Selling Stockholder in respect of matters of fact as
to ownership of, and liens, encumbrances, equities or claims on the Shares sold
by such Selling Stockholder, provided that such counsel shall state that they
believe that you and they are justified in relying upon such certificate. In
addition, such counsel may also state that as to all matters of the laws of the
State of New York, such counsel is relying on the opinion to you referred to in
Section 7(d) hereof;
f. (i) Neither the Company nor any of its Significant 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
as amended or supplemented, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented there shall
not have been any material change in the capital stock or long-term debt of the
Company or any of its Significant Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, 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 the Time of
Delivery on the terms and in the manner contemplated in the Prospectus as
amended or supplemented;
g. On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
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 New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
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
-15-
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 being delivered at the Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
i. The Shares to be sold by the Selling Stockholders at the Time of
Delivery shall have been duly listed on the New York Stock Exchange;
j. 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
k. The Company shall have furnished or caused to be furnished to you, and
the Selling Stockholders shall have furnished to you, at the Time of Delivery,
certificates of officers of the Company and of the Selling Stockholders,
respectively, satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders, respectively, herein at
and as of the Time of Delivery, as to the performance by the Company and the
Selling Stockholders of all of their respective obligations hereunder to be
performed at or prior to the Time of Delivery, and as to such other matters as
you may reasonably request, and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a) and (f) of
this Section, and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless the Underwriters
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriters may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Underwriters for any legal or
other expenses reasonably incurred by the 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 Xxxxxxx, Xxxxx &
Co. expressly for use therein.
b. Each Selling Stockholder, severally and not jointly, will indemnify and
hold harmless the Underwriters against any losses, claims, damages or
liabilities, joint or several, to which the Underwriters 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
-16-
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 the Underwriters for any legal or other expenses reasonably incurred
by the Underwriters 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 Xxxxxxx, Sachs & Co. expressly for use
therein; provided, further, that the liability of a Selling Stockholder pursuant
to this subsection (b) shall not exceed the amount of net proceeds received by
such Selling Stockholder from the sale of its Shares pursuant to this Agreement.
For the purposes of this Section 8(b), written information furnished to the
Company by Kamehameha Activities Association expressly for use in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto shall be deemed to include any written
information furnished to the Company by the Estate of Xxxxxxx Xxxxxx Xxxxxx for
use in any of the foregoing.
c. The Underwriters 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 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 an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which 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
-17-
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 under this
Section 8 (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
e. If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders taken together 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 taken
together 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 of the Shares
purchased under this Agreement (before deducting expenses) received by the
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus, and for purposes of the allocation of benefits under this sentence
the Company shall be deemed to have received all of the benefits received by the
Selling Stockholders. 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 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), the Underwriters shall
not 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
-18-
the public exceeds the amount of any damages which the Underwriters have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and no Selling Stockholder shall be
required to contribute an amount that, together with any other payments made
pursuant to this Section 8, exceeds the net proceeds received by such Selling
Stockholder from the sale of its Shares pursuant to this Agreement. 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.
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 the Underwriters
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 Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company or any Selling Stockholder within the meaning of the Act.
9. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Stockholders and the 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 the Underwriters or any controlling person of the Underwriters, 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.
Anything herein to the contrary notwithstanding, the indemnity agreements
of the Company in subsection (a) of Section 8 hereof, the representations and
warranties in subsections (a)(ii), (a)(iii) 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 of the Underwriters who is a director or officer who signed the
Registration Statement or controlling person of the Company when the
Registration Statement became 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.
10. If for any reason any Shares are not delivered by or on behalf of any
Selling Stockholder as provided herein, then such Selling Stockholder will
reimburse the Underwriters for all of their out-of-pocket expenses, 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 by such Selling Stockholder, but the Company and the Selling
Stockholders shall then be under no further liability to the
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Underwriters in respect of the Shares not so delivered except as provided in
Sections 6 and 8 hereof.
11. In all dealings hereunder with any Selling Stockholder, you and the
Company shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of such Selling Stockholder made or given by any or all of
the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Registration Department; if to any Selling Stockholder
shall be delivered or sent by mail, telex or facsimile transmission to such
Selling Stockholder at its address set forth in Schedule II hereto; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: Secretary. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
12. 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 9 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or the
Underwriters, 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 the
Underwriters shall be deemed a successor or assign by reason merely of such
purchase.
13. 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.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
15. 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.
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If the foregoing is in accordance with your understanding, please sign and
return to us three counterparts hereof, and upon the acceptance here of by the
Underwriters, this letter and such acceptance hereof shall constitute a binding
agreement among the Underwriters, the Company and each of the Selling
Stockholders.
Very truly yours,
The Xxxxxxx Xxxxx Group, Inc.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title:
SMBC Capital Markets, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Chairman
Kamehameha Activities Association
By: /s/ Xxxxxxx X. X. Chin
------------------------------------
Name: Xxxxxxx X. X. Xxxx
Title: President
The Trustees of the Estate of Xxxxxxx
Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxx Xxxxxx
----------------------------------------
/s/ Xxxxxxxxx Xxx Xxx
----------------------------------------
/s/ Xxxxx Xxxxxxx Keauhou Ing
----------------------------------------
Accepted as of the date hereof:
/s/ Xxxxxxx, Xxxxx & Co.
-------------------------------
(Xxxxxxx, Sachs & Co.)
SCHEDULE I
Total Number
of Shares
Underwriters to be Purchased
------------ ---------------
Xxxxxxx, Xxxxx & Co ........................................ 14,125,724
SCHEDULE II
Total Number
of Shares
Selling Stockholder To Be Sold
------------------- ----------
SMBC Capital Markets, Inc. (1) 8,670,527
Kamehameha Activities Association and the Estate
of Xxxxxxx Xxxxxx Xxxxxx (2) 5,455,197
(1) This Selling Stockholder, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, is
represented by Cravath, Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as to matters of the Federal law of the United States and
the laws of the State of New York, and Xxxxxx X. Xxxxxxx, Esq., General Counsel,
USA, Sumitomo Mitsui Banking Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, and has appointed Xxxxx X. Xxxxxxx, Xx., Xxxxxx X. Xxxxx, Xxxx X. Xxxxx
and Xxxx X. Xxxxxxxx, and each of them, as the Attorney-in-Fact for the Selling
Stockholder.
(2) This Selling Stockholder, 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxx 00000, is represented by Cravath, Swaine & Xxxxx, Worldwide Plaza, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as to matters of the Federal law of the
United States and the laws of the State of New York, and Cades Xxxxxxx Xxxxxxx &
Xxxxxx A Limited Liability Law Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx
00000, as to matters of the laws of the State of Hawaii, and has appointed Xxxxx
X. Xxxxxxx, Xx., Xxxxxx X. Xxxxx, Xxxx X. Xxxxx and Xxxx X. Xxxxxxxx, and each
of them, as the Attorney-in-Fact for the Selling Stockholder.
