Exhibit 1.1
2,950,000 Shares
XXXXXX XXXXX & COMPANY HOLDINGS
Class A Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
June __, 2001
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
UBS Warburg LLC
As Representatives of the
Several Underwriters
c/o Deutsche Banc Alex. Xxxxx Inc.
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxx & Company Holdings, a Delaware corporation (the
"Company"), and certain shareholders of the Company (the "Selling Shareholders")
propose to sell to the several underwriters (the "Underwriters") named in
SCHEDULE I hereto for whom you are acting as representatives (the
"Representatives") an aggregate of 2,950,000 shares of the Company's Class A
common stock, $0.01 par value (the "Common Stock"), of which 104,285 shares will
be sold by the Company and 2,845,715 shares will be sold by the Selling
Shareholders (the "Firm Shares"). The respective amounts of the Firm Shares to
be so purchased by the several Underwriters are set forth opposite their names
in SCHEDULE I hereto, and the respective amounts to be sold by the Selling
Shareholders are set forth opposite their names in SCHEDULE II hereto. The
Company and the Selling Shareholders are sometimes referred to herein
collectively as the "Sellers." The Selling Shareholders also propose to sell at
the Underwriters' option an aggregate of up to 442,500 additional shares of the
Common Stock (the "Option Shares") as set forth below. The Company's class A
common stock, class B-1 common stock and class B-2 common stock, each having
$0.01 par value, are collectively referred to herein as the Company's "common
stock."
As the Representatives, you have advised the Company and the Selling
Shareholders (a) that you are authorized to enter into this Agreement on behalf
of the several Underwriters, and (b) that
the several Underwriters are willing, acting severally and not jointly, to
purchase the numbers of Firm Shares set forth opposite their respective names in
SCHEDULE I, plus their pro rata portion of the Option Shares if you elect to
exercise the over-allotment option in whole or in part for the accounts of the
several Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY, THE OPERATING COMPANY
AND THE SELLING SHAREHOLDERS.
(a) The Company and Xxxxxx Xxxxx & Company, a Delaware
corporation and wholly-owned subsidiary of the Company (the "Operating
Company"), each, jointly and severally, represents and warrants to each of the
Underwriters as follows:
(i) A registration statement on Form S-3 (File No. 333-62252)
with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission. The
Company has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3. Copies of such registration
statement, including any amendments thereto, the preliminary
prospectuses (meeting the requirements of the Rules and Regulations)
contained therein and the exhibits, financial statements and schedules,
as finally amended and revised, have heretofore been delivered by the
Company to you. Such registration statement, together with any
registration statement filed by the Company pursuant to Rule 462(b) of
the Act (a "Rule 462(b) Registration Statement"), herein referred to as
the "Registration Statement," which shall be deemed to include all
information omitted therefrom in reliance upon Rule 430A and contained
in the Prospectus referred to below, has become effective under the Act
and no post-effective amendment to the Registration Statement has been
filed as of the date of this Agreement. "Prospectus" means the form of
prospectus first filed with the Commission pursuant to Rule 424(b).
Each preliminary prospectus included in the Registration Statement
prior to the time it becomes effective is herein referred to as a
"Preliminary Prospectus." Any reference herein to the Registration
Statement, any Preliminary Prospectus or to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein, and, in the case of any reference herein to any Prospectus,
also shall be deemed to include any documents incorporated by reference
therein, and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rules
424(b) or 430A, and prior to the termination of the offering of the
Shares by the Underwriters. The Registration Statement has become
effective (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement); any
Rule 462(b) Registration Statement filed after the effectiveness of
this Agreement will become effective no later than 10:00 P.M., New York
City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration
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Statement is in effect, and no proceedings for such purpose are pending
before or threatened by the Commission.
(ii) (A) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus,
complied or will comply, when so filed, in all material respects with
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(B) the Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this
Agreement), when it became effective, did not contain and, as amended,
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, (C) the
Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this
Agreement) and the Prospectus comply and, as amended or supplemented,
if applicable, will comply in all material respects with the Act, (D)
if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement and any amendments thereto, when they become
effective (1) 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 (2) will
comply in all material respects with the Act and (E) the Prospectus
does 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 the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(iii) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act, 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, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein. 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
Form S-3 under the Act ("Incorporated Documents"), as of the date of
such preliminary prospectus or Prospectus, as the case may be. Any
document filed by the Company under the Exchange Act after the
effective date of the Registration Statement or the date of the
Prospectus and incorporated by reference in the Prospectus shall be
deemed to be included in that Registration Statement and the Prospectus
as of the date of such filing. The Incorporated Documents, when filed
with the Commission, conformed or will conform in all material respects
to the requirements for the Exchange Act and none of such documents, as
of the date of such
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Incorporated Document, contained or will contain an untrue statement of
a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(iv) Each of the Company, the Operating Company and the
Company's subsidiaries has been duly incorporated, is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its
business as described in the Prospectus and to own, lease and operate
its properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company,
the Operating Company and the Company's subsidiaries, taken as a whole.
(v) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
granted or issued by the Company or any of its subsidiaries relating to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of the Company or any of its subsidiaries, except
as otherwise disclosed in the Registration Statement.
(vi) All the outstanding shares of capital stock of the
Company (including the Shares to be sold by the Selling Shareholders)
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights; and
the Shares to be issued and sold by the Company have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights.
(vii) All of the outstanding shares of capital stock of the
Operating Company and each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable,
and are owned by the Company, directly or indirectly through one or
more subsidiaries, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature, except as
otherwise disclosed in the Registration Statement.
(viii) The terms of the authorized capital stock of the
Company conform in all material respects to the description thereof
contained in the Prospectus under the caption "Description of Capital
Stock, Certificate of Incorporation and Bylaws."
(ix) None of the Company, the Operating Company nor any of the
Company's subsidiaries is in violation of its respective charter or
by-laws or in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to
the Company, the Operating Company and each of the Company's
subsidiaries, taken as a whole, to which the Company, the Operating
Company or any of the Company's
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subsidiaries is a party or by which the Company, the Operating Company
or any of the Company's subsidiaries or their respective property is
bound.
(x) The execution, delivery and performance of this Agreement
by each of the Company and the Operating Company, the compliance by
each of the Company and the Operating Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
will not (A) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency (except such as may be required under the securities or Blue Sky
laws of the various states), (B) conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the charter
or by-laws of the Company, the Operating Company or any of the
Company's subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company,
the Operating Company and the Company's subsidiaries, taken as a whole,
to which the Company, the Operating Company or any of the Company's
subsidiaries is a party or by which the Company, the Operating Company
or any of the Company's subsidiaries or their respective property is
bound, (C) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, the Operating
Company, any of the Company's subsidiaries or their respective property
or (D) result in the suspension, termination or revocation of any
Authorization (as defined below) of the Company, the Operating Company
or any of the Company's subsidiaries or any other impairment of the
rights of the holder of any such Authorization.
(xi) There are no legal or governmental proceedings pending
or, to their knowledge, threatened to which the Company, the Operating
Company or any of the Company's subsidiaries is or could be a party or
to which any of their respective property is or could be subject that
are required to be described in the Registration Statement or the
Prospectus and are not so described; nor are there any statutes,
regulations, contracts or other documents that are 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 as required.
(xii) None of the Company, the Operating Company nor any of
the Company's subsidiaries has violated any foreign, federal, state or
local law or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), any provisions of
the Employee Retirement Income Security Act of 1974, as amended, or any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a material adverse effect on
the business, prospects, financial condition or results of operation of
the Company, the Operating Company and the Company's subsidiaries,
taken as a whole.
(xiii) Each of the Company, the Operating Company and the
Company's subsidiaries has such permits, licenses, consents,
exemptions, franchises, authorizations and other approvals (each, an
"Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory
organizations and all courts
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and other tribunals, including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business,
except where the failure to have any such Authorization or to make any
such filing or notice would not, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company, the Operating Company and the
Company's subsidiaries, taken as a whole. Each such Authorization is
valid and in full force and effect and each of the Company, the
Operating Company and the Company's subsidiaries is in compliance with
all the terms and conditions thereof and with the rules and regulations
of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization
or results or, after notice or lapse of time or both, would result in
any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company, the Operating Company or any of the
Company's subsidiaries; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence of any
such event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company,
the Operating Company and the Company's subsidiaries, taken as a whole.
(xiv) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related
constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial condition or
results of operations of the Company, the Operating Company and the
Company's subsidiaries, taken as a whole.
(xv) This Agreement has been duly authorized, executed and
delivered by each of the Company and the Operating Company.
(xvi) PricewaterhouseCoopers LLP are, or for the period
relevant to their audit report incorporated by reference in the
Registration Statement, were, independent public accountants with
respect to the Company, the Operating Company and the Company's
subsidiaries as required by the Act.
(xvii) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present
fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries on
the basis stated therein at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein; the supporting schedules, if
any, included in the Registration Statement
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present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(xviii) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(xix) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
(xx) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (A) there has not occurred any material
adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company, the
Operating Company and the Company's subsidiaries, taken as a whole, (B)
there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or
in the long-term debt of the Company, the Operating Company or any of
the Company's subsidiaries and (C) none of the Company, the Operating
Company nor any of the Company's subsidiaries has incurred any material
liability or obligation, direct or contingent.
(xxi) Each certificate signed by any officer of the Company or
the Operating Company and delivered to the Underwriters or counsel for
the Underwriters shall be deemed to be a joint and several
representation and warranty by each of the Company and the Operating
Company to the Underwriters as to the matters covered thereby.
(xxii) The Company, the Operating Company and each of the
Company's subsidiaries own or possess, or can acquire on reasonable
terms, all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names ("intellectual
property") currently employed by them in connection with the business
now operated by them except where the failure to own or possess or
otherwise be able to acquire such intellectual property would not,
singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operation of the
Company, the Operating Company and the Company's subsidiaries, taken as
a whole; and none of the Company, the Operating Company nor any of the
Company's subsidiaries has received any notice of infringement of or
conflict with
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asserted rights of others with respect to any of such intellectual
property which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company, the Operating Company and the Company's
subsidiaries, taken as a whole.
(xxiii) The Company, the Operating Company and each of the
Company's subsidiaries are insured against such losses and risks and in
such amounts as are prudent and customary in the businesses in which
they are engaged; and none of the Company, the Operating Company nor
any of the Company's subsidiaries (A) has received notice from any
insurer or agent of such insurer that substantial capital improvements
or other material expenditures will have to be made in order to
continue such insurance or (B) has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers at
a cost that would not have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company,
the Operating Company and the Company's subsidiaries, taken as a whole.
(xxiv) All material tax returns required to be filed by the
Company, the Operating Company and each of the Company's subsidiaries
in any jurisdiction have been filed, other than those filings being
contested in good faith, and all material taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due
pursuant to such returns or pursuant to any assessment received by the
Company, the Operating Company or any of the Company's subsidiaries
have been paid, other than those being contested in good faith and for
which adequate reserves have been provided.
(b) Each of the Selling Shareholders severally represents and
warrants as follows:
(i) Such Selling Shareholder is the lawful owner of the Shares
to be sold by such Selling Shareholder pursuant to this Agreement and
has, and on the Closing Date will have, good and clear title to such
Shares, free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever.
(ii) Such Selling Shareholder has, and on the Closing Date
will have, full legal right, power and authority, and all authorization
and approval required by law, to enter into this Agreement and the
Power of Attorney and Custody Agreement of such Selling Shareholder
(the "Power of Attorney and Custody Agreement"), relating to the
deposit of the Shares to be sold by such Selling Shareholder and
appointing certain individuals as such Selling Shareholder's
attorneys-in-fact (the "Attorneys") to the extent set forth therein,
relating to the transactions contemplated hereby and by the
Registration Statement and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Shareholder in the manner provided
herein and therein.
(iii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.
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(iv) The Power of Attorney and Custody Agreement of such
Selling Shareholder has been duly authorized, executed and delivered by
such Selling Shareholder and is a valid and binding instrument of such
Selling Shareholder, enforceable in accordance with its terms, and,
pursuant to such Power of Attorney and Custody Agreement, such Selling
Shareholder has, among other things, authorized the Attorneys, or any
one of them, to execute and deliver on such Selling Shareholder's
behalf this Agreement and any other document that they, or any one of
them, may deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver the Shares
to be sold by such Selling Shareholder pursuant to this Agreement.
(v) The Lockup Agreement (as defined in Section 4(a)(x)(B)
below) of such Selling Shareholder has been duly authorized, executed
and delivered by or on behalf of such Selling Shareholder and is a
valid and binding agreement of such Selling Shareholder, enforceable in
accordance with its terms.
(vi) Upon delivery of and payment for the Shares to be sold by
such Selling Shareholder pursuant to this Agreement, good and clear
title to such Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests,
equities and claims whatsoever.
(vii) The execution, delivery and performance of this
Agreement and the Power of Attorney and Custody Agreement and Lockup
Agreement of such Selling Shareholder by or on behalf of such Selling
Shareholder, the compliance by such Selling Shareholder with all the
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (A) require any consent,
approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (B)
conflict with or constitute a breach of any of the terms or provisions
of, or a default under, the organizational documents of such Selling
Shareholder, if such Selling Shareholder is not an individual, or any
indenture, loan agreement, mortgage, lease or other agreement or
instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder or any property of such Selling Shareholder is
bound or (C) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling Shareholder or any
property of such Selling Shareholder.
(viii) The information in the Registration Statement under the
caption "Selling Stockholders" which specifically relates to such
Selling Shareholder does not, and will not on the Closing Date, contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(ix) Each certificate signed by or on behalf of such Selling
Shareholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be
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a representation and warranty by such Selling Shareholder to the
Underwriters as to the matters covered thereby.
Neither the Company nor the Operating Company has independently
verified the accuracy of the foregoing representations and warranties of the
Selling Shareholders. However, the Company and the Operating Company will,
jointly and severally, bear the risk of any inaccuracy in the foregoing
representations and warranties of the Selling Shareholders.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Sellers agree to sell to the Underwriters and each Underwriter agrees, severally
and not jointly, to purchase, at a price of $_____ per share, the number of Firm
Shares set forth opposite the name of each Underwriter in SCHEDULE I hereof,
subject to adjustments in accordance with Section 9 hereof. The number of Firm
Shares to be purchased by each Underwriter from each Seller shall be as nearly
as practicable in the same proportion to the total number of Firm Shares being
sold by each Seller as the number of Firm Shares being purchased by each
Underwriter bears to the total number of Firm Shares to be sold hereunder. The
obligations of the Company and of each of the Selling Shareholders shall be
several and not joint.
(b) The Shares to be sold hereunder by the Selling
Shareholders have been placed in custody with the Attorneys as custodians (each,
a "Custodian") pursuant to the Power of Attorney and Custody Agreement executed
by each Selling Shareholder for delivery of all Firm Shares to be sold hereunder
by the Selling Shareholders. Each of the Selling Shareholders specifically
agrees that the Firm Shares held in custody for the Selling Shareholders under
the Power of Attorney and Custody Agreement are subject to the interests of the
Underwriters hereunder, that the arrangements made by the Selling Shareholders
for such custody are to that extent irrevocable, and that the obligations of the
Selling Shareholders hereunder shall not be terminable by any act or deed of the
Selling Shareholders (or by any other person, firm or corporation including the
Company, the Operating Company, the Custodian or the Underwriters) or by
operation of law (including the death of an individual Selling Shareholder or
the dissolution of a corporate Selling Shareholder) or by the occurrence of any
other event or events, except as set forth in the Power of Attorney and Custody
Agreement. If any such event should occur prior to the delivery to the
Underwriters of the Firm Shares hereunder, certificates for the Firm Shares
shall be delivered by the Custodian in accordance with the terms and conditions
of this Agreement as if such event has not occurred. The Custodian is authorized
to receive and acknowledge receipt of the proceeds of sale of the Shares held by
it against delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is to be
made in Federal (same day) funds to an account designated by the Company for the
shares to be sold by it and to an account designated by the Custodian for the
shares to be sold by the Selling Shareholders, in each case against delivery of
certificates therefor to the Representatives for the several accounts of the
Underwriters. Such payment and delivery are to be made through the facilities of
the Depository Trust Company at 10:00 a.m., New York time, on the third business
day after the date of this
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Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the "Closing Date." (As used herein, "business day" means
a day on which the New York Stock Exchange is open for trading and on which
banks in New York are open for business and not permitted by law or executive
order to be closed.)
(d) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Shareholders hereby grant an option to the several
Underwriters to purchase the Option Shares at the price per share as set forth
in the first paragraph of this Section 2. The option granted hereby may be
exercised in whole or in part by giving written notice (i) at any time before
the Closing Date and (ii) only once thereafter within 30 days after the date of
this Agreement, by you, as Representatives of the several Underwriters, to the
Company, setting forth the number of Option Shares as to which the several
Underwriters are exercising the option, the names and denominations in which the
Option Shares are to be registered and the time and date at which such
certificates are to be delivered. The time and date at which certificates for
Option Shares are to be delivered shall be determined by the Representatives but
shall not be earlier than three nor later than 10 full business days after the
exercise of such option, nor in any event prior to the Closing Date (such time
and date being herein referred to as the "Option Closing Date"). If the date of
exercise of the option is three or more days before the Closing Date, the notice
of exercise shall set the Closing Date as the Option Closing Date. The number of
Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the number of
Firm Shares being purchased by such Underwriter bears to the total number of
Firm Shares, adjusted by you in such manner as to avoid fractional shares. The
option with respect to the Option Shares granted hereunder may be exercised only
to cover over-allotments in the sale of the Firm Shares by the Underwriters.
You, as Representatives of the several Underwriters, may cancel such option at
any time prior to its exercise or expiration by giving written notice of such
cancellation to the Company. To the extent, if any, that the option is
exercised, payment for the Option Shares shall be made on the Option Closing
Date in Federal (same day) funds drawn to the order of the Company against
delivery of certificates therefor through the facilities of the Depository Trust
Company, New York, New York.
(e) If on the Closing Date any Selling Shareholder fails to
sell the Firm Shares which such Selling Shareholder has agreed to sell on such
date as set forth in SCHEDULE II hereto, the Company agrees that it will sell or
arrange for the sale of that number of shares of Common Stock to the
Underwriters which represents Firm Shares which such Selling Shareholder has
failed to so sell, as set forth in SCHEDULE II hereto, or such lesser number as
may be requested by the Representatives.
3. OFFERING BY THE UNDERWRITERS.
It is understood that the several Underwriters are to make a
public offering of the Firm Shares as soon as the Representatives deem it
advisable to do so. The Firm Shares are to be initially offered to the public at
the public offering price set forth in the Prospectus. The Representatives may
from time to time thereafter change the public offering price and other selling
11
terms. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the
Representatives for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and
the several other Underwriters.
4. COVENANTS OF THE COMPANY, THE OPERATING COMPANY AND THE SELLING
SHAREHOLDERS.
(a) The Company and the Operating Company each, jointly and
severally, covenant and agree with the several Underwriters that:
(i) The Company will (A) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule
430A of the Rules and Regulations is followed, to prepare and timely
file with the Commission under Rule 424(b) of the Rules and Regulations
a Prospectus in a form approved by the Representatives containing
information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A of the Rules and
Regulations, (B) not file any amendment to the Registration Statement
or supplement to the Prospectus or document incorporated by reference
therein of which the Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives shall
have reasonably objected in writing or which is not in compliance with
the Rules and Regulations and (C) file on a timely basis all reports
and any definitive proxy or information statements required to be filed
by the Company with the Commission subsequent to the date of the
Prospectus and prior to the termination of the offering of the Shares
by the Underwriters. If the Registration Statement at the time of the
effectiveness of this Agreement does not cover all of the Shares, the
Company will file a Rule 462(b) Registration Statement with the
Commission registering the Shares not so covered in compliance with
Rule 462(b) by 10:00 P.M., New York City time, on the date of this
Agreement and to pay to the Commission the filing fee for such Rule
462(b) Registration Statement at the time of the filing thereof or to
give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act.
(ii) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment thereto
shall have become effective, (B) of receipt of any comments from the
Commission, (C) of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any
additional information, (D) if the Company is required to file a Rule
462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become
effective, and (E) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the use
of the Prospectus or of the institution of any proceedings for that
purpose. The Company will use its best efforts to prevent the issuance
of any such stop order preventing
12
or suspending the use of the Prospectus and to obtain as soon as
possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as the Representatives may reasonably have
designated in writing and will make such applications, file such
documents, and furnish such information as may be reasonably required
for that purpose, provided 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 where it is not now so qualified or
required to file such a consent. The Company will, from time to time,
prepare and file such statements, reports, and other documents, as are
or may be required to continue such qualifications in effect for so
long a period as the Representatives may reasonably request for
distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary
Prospectus as the Representatives may reasonably request. The Company
will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Act, as many
copies of the Prospectus in final form, or as thereafter amended or
supplemented, as the Representatives may reasonably request. The
Company will deliver to the Representatives at or before the Closing
Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will
deliver to the Representatives such number of copies of the
Registration Statement (including such number of copies of the exhibits
filed therewith that may reasonably be requested), including documents
incorporated by reference therein, and of all amendments thereto, as
the Representatives may reasonably request.
(v) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the
distribution of the Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus is required by
law to be delivered by an Underwriter or dealer, any event shall occur
as a result of which, in the judgment of the Company or in the
reasonable opinion of the Underwriters, it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, not misleading, or, if it is necessary at
any time to amend or supplement the Prospectus to comply with any law,
the Company promptly will either (i) prepare and file with the
Commission an appropriate amendment to the Registration Statement or
supplement to the Prospectus or (ii) prepare and file with the
Commission an appropriate filing under the Securities Exchange Act of
1934 which shall be incorporated by reference in the Prospectus so that
the Prospectus as so amended or supplemented will not, in the light of
the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with the law.
13
(vi) The Company will make generally available to its security
holders, as soon as it is practicable to do so, an earning statement
(which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of
the Registration Statement, which earning statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations and will advise you in writing when such statement has been
so made available.
(vii) Prior to the Closing Date, the Company will furnish to
the Underwriters, as soon as they have been prepared by or are
available to the Company, a copy of any unaudited interim financial
statements of the Company for any period subsequent to the period
covered by the most recent financial statements appearing in the
Registration Statement and the Prospectus.
(viii) No offering, sale, short sale or other disposition of
any shares of common stock of the Company or other securities
convertible into or exchangeable or exercisable for shares of common
stock or derivative of common stock (or agreement for such) will be
made for a period of 90 days after the date of this Agreement, directly
or indirectly, by the Company otherwise than hereunder or with the
prior written consent of Deutsche Banc Alex. Xxxxx Inc. ("DBAB").
Notwithstanding the foregoing, during such period the Company may (1)
grant stock options pursuant to the Company's existing stock option
plan; (2) issue shares of common stock upon the exercise of an option
or warrant or the conversion of a security outstanding on the date
hereof; (3) issue shares under an existing employee compensation or
benefit plan or such future plans as described in the Registration
Statement using Form S-8 or otherwise; (4) issue shares under an
acquisition agreement as long as any shares of the Company issued
thereunder are not transferable within the 90 day period; and (5) file
a registration statement on Form S-4 with the SEC, provided that no
sales are made under the registration statement during such period.
(ix) The Company will use its best efforts to list, subject to
notice of issuance, the Shares on the New York Stock Exchange (the
"NYSE") and to maintain the listing of the Shares on the NYSE.
(x) The Company agrees not to (A) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly,
any shares of common stock or any securities convertible into or
exercisable or exchangeable for common stock or (B) enter into any swap
or other arrangement that transfers all or a portion of the economic
consequences associated with the ownership of any common stock
(regardless of whether any of the transactions described in clause (A)
or (B) is to be settled by the delivery of common stock, or such other
securities, in cash or otherwise), except to the Underwriters pursuant
to this Agreement, for a period of 90 days after the date of the
Prospectus without the prior written consent of DBAB. Notwithstanding
the foregoing, during such period the Company may (1) grant stock
options pursuant to the Company's existing stock option plan; (2) issue
shares of common stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof; (3) issue
shares
14
under an existing employee compensation or benefit plan or such future
plans as described in the Registration Statement using Form S-8 or
otherwise; (4) issue shares under an acquisition agreement as long as
any shares of the Company issued thereunder are not transferable within
the 90 day period; and (5) file a registration statement on Form S-4
with the SEC, provided that no sales are made under the registration
statement during such period. The Company also agrees not to waive any
transfer restrictions applicable to its equity securities to allow the
conversion of the class B-1 common stock to class A common stock or to
file any registration statement (subject to the exception in the
preceding sentence) with respect to any shares of common stock or any
securities convertible into or exercisable or exchangeable for common
stock until October 16, 2001, without the prior written consent of
DBAB.
(xi) (A) The Company and (1) each employee executive officer
and employee director of the Company and the Operating Company and (2)
each employee shareholder beneficially owning 50,000 shares or more of
the outstanding class B common stock of the Company as of October 10,
2000, has entered into prior to the date of this Agreement, a letter
agreement substantially in the form attached hereto as EXHIBIT A (each,
a "Lockup Agreement" and, collectively, the "Lockup Agreements"),
pursuant to which each such officer, director or shareholder has agreed
not to offer, sell, sell short or otherwise dispose of any shares of
common stock of the Company beneficially owned by it (the "Restricted
Shares") or any other securities convertible, exchangeable or
exercisable for Restricted Shares or derivative of Restricted Shares
owned by such person (except as provided in the Lockup Agreements) or
request the registration for the offer or sale of any of the foregoing
(or as to which such person has the right to direct the disposition of)
for a period of four years after the closing date of the initial public
offering of the Company (the "IPO"), PROVIDED that such restrictions
shall terminate as to 25% of such Restricted Shares on each of the
first, second, third and fourth anniversaries of the closing date of
the IPO. The Company will use its best efforts to enforce the Lockup
Agreements in a manner consistent with their overall objective.
(B) For the purposes of the public offering contemplated
hereunder only, the Company has agreed to waive the transfer
restrictions related to the class B-1 common stock provided for in the
Lockup Agreements, to the extent that holders of class B-1 common stock
will be permitted to sell up to 50% of such holder's Restricted Shares.
The transfer restrictions on the remaining class B-1 common stock that
is not converted into class A common stock for resale in the public
offering shall continue to be subject to the transfer restrictions in
the Lockup Agreements.
(xii) For the purposes of the public offering contemplated
hereunder only, the Company has agreed to waive the transfer
restrictions applicable to the class B-1 common stock being sold
hereunder.
(xiii) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a
manner as would require the Company or any of the Subsidiaries to
register as an investment company under the 1940 Act.
15
(xiv) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar for the Common Stock.
(xv) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation
(as such terms are defined in Regulation M, promulgated under the Act)
of the price of any securities of the Company.
(xvi) Each of the Company and the Operating Company will use
its best efforts to do and perform all things required or necessary to
be done and performed under this Agreement by the Company or the
Operating Company prior to the Closing Date or any Option Closing Date,
as the case may be, and to satisfy all conditions precedent to the
delivery of the Shares.
(b) Each of the Selling Shareholders covenants and agrees with
the several Underwriters that:
(i) No offering, sale, short sale or other disposition of any
shares of common stock of the Company or other capital stock of the
Company or other securities convertible, exchangeable or exercisable
for common stock or derivative of common stock owned by the Selling
Shareholder or request the registration for the offer or sale of any of
the foregoing (or as to which the Selling Shareholder has the right to
direct the disposition of) will be made for the periods specified in
the charter of the Company and/or Lockup Agreement, directly or
indirectly, by such Selling Shareholder otherwise than hereunder or
with the prior written consent of DBAB.
(ii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax Compliance
Act of 1983 with respect to the transactions herein contemplated, each
of the Selling Shareholders agrees to deliver to you prior to or at the
Closing Date a properly completed and executed United States Treasury
Department Form W-8 or W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
(iii) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any securities of the
Company.
5. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Sellers under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as requested by, the
Underwriters copies of the Registration Statement, Preliminary Prospectuses, the
Prospectus, this Agreement, the Underwriters' Selling Memorandum, the
Underwriters' Invitation Letter, the Listing Application,
16
the Blue Sky Survey and any supplements or amendments thereto; the filing fees
of the Commission; the filing fees and expenses (including legal fees and
disbursements) incident to securing any required review by the NASD of the terms
of the sale of the Shares; the Listing Fee of the New York Stock Exchange; and
the expenses, including the fees and disbursements of counsel for the
Underwriters, incurred in connection with the qualification of the Shares under
State securities or Blue Sky laws. Any transfer taxes imposed on the sale of the
Shares to the several Underwriters will be paid by the Company or the Selling
Shareholders, as the case may be. The Company shall not, however, be required to
pay for any of the Underwriters expenses (other than those related to
qualification under NASD regulation and State securities or Blue Sky laws)
except that, if this Agreement shall not be consummated because the conditions
in Section 6 hereof are not satisfied, or because this Agreement is terminated
by the Representatives pursuant to Section 11 hereof, or by reason of any
failure, refusal or inability on the part of the Company or the Selling
Shareholders to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on their part to be
performed, unless such failure to satisfy said condition or to comply with said
terms be due to the default or omission of any Underwriter, then the Company
shall reimburse the several Underwriters for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Shares or in
contemplation of performing their obligations hereunder; but the Company and the
Selling Shareholders shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits from the sale
by them of the Shares.
6. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The several obligations of the Underwriters to purchase the
Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option
Closing Date, as the case may be, of the representations and warranties of the
Company and the Selling Shareholders contained herein, and to the performance by
the Company and the Selling Shareholders of their covenants and obligations
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and
any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representatives and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company or the Operating
Company, shall be contemplated by the Commission and no injunction, restraining
order, or order of any nature by a Federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance of the Shares.
(b) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be,
17
(i) the opinion of Xxxxxx, Xxxx & Xxxxxxxx, LLP, counsel for
the Company, dated the Closing Date or the Option Closing Date, as the
case may be, addressed to the Underwriters (and stating that it may be
relied upon by counsel to the Underwriters) to the effect that:
(A) each of the Company and the Operating Company is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation;
(B) the Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights;
(C) this Agreement has been duly authorized, executed
and delivered by each of the Company and the Operating
Company;
(D) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(E) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness has
been issued and no proceedings for that purpose are, to the
best of such counsel's knowledge after due inquiry, pending
before or contemplated by the Commission;
(F) the statements under the captions "Long Term
Incentive Plan", "Description of Offering", "Shares Eligible
for Future Sale" and "Underwriting" in the Prospectus and Item
15 of Part II of the Registration Statement, insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings;
(G) the execution, delivery and performance of this
Agreement by the Company and the Operating Company, the
compliance by the Company and the Operating Company with all
the provisions hereof and the consummation of the transactions
contemplated hereby will not (1) require any consent,
approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as
may be required under the securities or Blue Sky laws of the
various states), (2) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
charter or by-laws of the Company, the Operating Company or
any of the Company's subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is material to the Company, the Operating Company and the
Company's subsidiaries, taken as a whole, to which the
Company, the Operating Company or any of the Company's
subsidiaries is a party or by which the Company, the Operating
Company or any of the Company's subsidiaries or their
respective property is bound, (3) violate or
18
conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, the
Operating Company, any of the Company's subsidiaries or their
respective property or (4) result in the suspension,
termination or revocation of any Authorization of the Company,
the Operating Company or any of the Company's subsidiaries or
any other impairment of the rights of the holder of any such
Authorization;
(H) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be,
an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(I) to the best of such counsel's knowledge after due
inquiry, there are no contracts, agreements or understandings
between the Company and any person granting such person the
right to require the Company or the Operating Company to file
a registration statement under the Act with respect to any
securities of the Company or to require the Company to include
such securities with the Shares registered pursuant to the
Registration Statement; and
(J) (1) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and other financial data
included therein as to which no opinion need be expressed)
complied when so filed as to form with the Exchange Act, (2)
the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial
statements and other financial data included therein as to
which no opinion need be expressed) comply as to form with the
Act, (3) such counsel has no reason to believe that at the
time the Registration Statement became effective or on the
date of this Agreement, the Registration Statement and the
prospectus included therein (except for the financial
statements and other financial data as to which such counsel
need not express any belief) contained any untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, (4) such counsel has no reason to
believe that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other
financial data, as aforesaid) contains any untrue statement of
a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and
(5) such counsel has no reason to believe that any of the
documents incorporated by reference in the Prospectus, when
they were so filed, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; such counsel need express no
opinion as to the financial statements or other financial or
statistical data contained in any such document incorporated
by reference in the Prospectus.
19
(ii) the opinion of Xxxxxx X. Xxxxxxxxxxxx, counsel for the
Company, the Operating Company and the Selling Shareholders, dated the
Closing Date or the Option Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the
Underwriters) to the effect that:
(A) each of the Company, the Operating Company and
the Company's subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as
described in the Prospectus and to own, lease and operate its
properties;
(B) each of the Company, the Operating Company and
the Company's subsidiaries is duly qualified and is in good
standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company, the
Operating Company and the Company's subsidiaries, taken as a
whole;
(C) all the outstanding shares of capital stock of
the Company (including the Shares to be sold by the Selling
Shareholders) have been duly authorized and validly issued and
are fully paid, non-assessable and not subject to any
preemptive or similar rights;
(D) the Shares to be issued and sold by the Company
hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights;
(E) all of the outstanding shares of capital stock of
the Operating Company and each of the Company's subsidiaries
have been duly authorized and validly issued and are fully
paid and non-assessable, and owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of
any security interest, claim, lien, encumbrance or adverse
interest of any nature;
(F) this Agreement has been duly authorized, executed
and delivered by each of the Company and the Operating Company
and by or on behalf of each Selling Shareholder;
(G) none of the Company, the Operating Company nor
any of the Company's subsidiaries is in violation of its
respective charter or by-laws and, to the best of such
counsel's knowledge after due inquiry, none of the Company,
the Operating Company nor any of the Company's subsidiaries is
in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is
20
material to the Company, the Operating Company and the
Company's subsidiaries, taken as a whole, to which the
Company, the Operating Company or any of the Company's
subsidiaries is a party or by which the Company, the Operating
Company or any of the Company's subsidiaries or their
respective property is bound;
(H) the execution, delivery and performance of this
Agreement by the Company and the Operating Company, the
compliance by the Company and the Operating Company with all
the provisions hereof and the consummation of the transactions
contemplated hereby will not (1) require any consent,
approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as
may be required under the securities or Blue Sky laws of the
various states), (2) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
charter or by-laws of the Company, the Operating Company or
any of the Company's subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument
that is material to the Company, the Operating Company and the
Company's subsidiaries, taken as a whole, to which the
Company, the Operating Company or any of the Company's
subsidiaries is a party or by which the Company, the Operating
Company or any of the Company's subsidiaries or their
respective property is bound, (3) violate or conflict with any
applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having
jurisdiction over the Company, the Operating Company, any of
the Company's subsidiaries or their respective property or (4)
result in the suspension, termination or revocation of any
Authorization of the Company, the Operating Company or any of
the Company's subsidiaries or any other impairment of the
rights of the holder of any such Authorization;
(I) after due inquiry, such counsel does not know of
any legal or governmental proceedings pending or threatened to
which the Company, the Operating Company or any of the
Company's subsidiaries is or could be a party or to which any
of their respective property is or could be subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described, or of any statutes,
regulations, contracts or other documents that are 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 as required;
(J) none of the Company, the Operating Company nor
any of the Company's subsidiaries has violated any
Environmental Law, any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or any provisions of
the Foreign Corrupt Practices Act or the rules and regulations
promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a material adverse
effect on the business, prospects, financial condition or
results of operation of the Company, the Operating Company and
the Company's subsidiaries, taken as a whole;
21
(K) each of the Company, the Operating Company and
the Company's subsidiaries has such Authorizations of, and has
made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and
all courts and other tribunals, including, without limitation,
under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and
to conduct its business, except where the failure to have any
such Authorization or to make any such filing or notice would
not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or
results of operations of the Company, the Operating Company
and the Company's subsidiaries, taken as a whole; each such
Authorization is valid and in full force and effect and each
of the Company, the Operating Company and the Company's
subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time
or both, would allow, revocation, suspension or termination of
any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the
rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are burdensome to
the Company, the Operating Company or any of the Company's
subsidiaries; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or
results of operations of the Company, the Operating Company
and the Company's subsidiaries, taken as a whole;
(L) to the best of such counsel's knowledge after due
inquiry, there are no contracts, agreements or understandings
between the Company and any person granting such person the
right to require the Company to file a registration statement
under the Act with respect to any securities of the Company or
to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement;
(M) (1) such counsel has no reason to believe that at
the time the Registration Statement became effective or on the
date of this Agreement, the Registration Statement and the
prospectus included therein (except for the financial
statements and other financial data as to which such counsel
need not express any belief) contained any untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, (2) such counsel has no reason to
believe that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other
financial data, as aforesaid) contains any untrue statement of
a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and
(3) such counsel has no reason to believe that any of the
documents incorporated by reference
22
in the Prospectus, when they were so filed, contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
such counsel need express no opinion as to the financial
statements or other financial or statistical data contained in
any such document incorporated by reference in the Prospectus;
(N) each Selling Shareholder is the lawful owner of
the Shares to be sold by such Selling Shareholder pursuant to
this Agreement and has good and clear title to such Shares,
free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever;
(O) each Selling Shareholder has full legal right,
power and authority, and all authorization and approval
required by law, to enter into this Agreement and each of the
Power of Attorney and Custody Agreement and the Lockup
Agreement of such Selling Shareholder and to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Shareholder in the manner provided herein and therein;
(P) each of the Power of Attorney and Custody
Agreement and the Lockup Agreement of each Selling Shareholder
has been duly authorized, executed and delivered by such
Selling Shareholder and is a valid and binding instrument of
such Selling Shareholder, enforceable in accordance with its
terms, and, pursuant to such Power of Attorney and Custody
Agreement, such Selling Shareholder has, among other things,
authorized the Attorneys, or any one of them, to execute and
deliver on such Selling Shareholder's behalf this Agreement
and any other document they, or any one of them, may deem
necessary or desirable in connection with the transactions
contemplated hereby and thereby and to deliver the Shares to
be sold by such Selling Shareholder pursuant to this
Agreement;
(Q) upon delivery of and payment for the Shares to be
sold by each Selling Shareholder pursuant to this Agreement,
good and clear title to such Shares will pass to the
Underwriters, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims
whatsoever; and
(R) the execution, delivery and performance of this
Agreement and each of the Power of Attorney and Custody
Agreement and the Lockup Agreement of each Selling Shareholder
by such Selling Shareholder, the compliance by such Selling
Shareholder with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and
thereby will not (1) require any consent, approval,
authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be
required under the securities or Blue Sky laws of the various
states), (2) conflict with or constitute a breach of any of
the terms or provisions of, or a default under, the
organizational documents of such Selling Shareholder, if such
Selling Shareholder is not an individual, or any indenture,
loan agreement, mortgage, lease or other agreement or
instrument to
23
which such Selling Shareholder is a party or by which any
property of such Selling Shareholder is bound or (3) violate
or conflict with any applicable law or any rule, regulation,
judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling
Shareholder or any property of such Selling Shareholder.
In rendering such opinions, counsel may rely as to matters
governed by the laws of states other than the General Corporation Law of the
state of Delaware or Federal laws on local counsel in such jurisdictions,
provided that in each case counsel shall state that they believe that they and
the Underwriters are justified in relying on such other counsel.
(c) The Representatives shall have received from Xxxxxxx Xxxx
& Xxxxxxxxx, counsel for the Underwriters, an opinion dated the Closing Date or
the Option Closing Date, as the case may be, substantially to the effect
specified in subparagraphs (A), (B), (C) and (E) of Paragraph (b)(i) of this
Section 6, and that the Company is a duly organized and validly existing
corporation under the laws of the State of Delaware. In rendering such opinion,
Xxxxxxx Xxxx & Xxxxxxxxx may rely as to all matters governed other than by the
laws of the State of New York or Federal laws on the opinion of counsel referred
to in Paragraph (b) of this Section 6. In addition to the matters set forth
above, such opinion shall also include a statement to the effect that nothing
has come to the attention of such counsel which leads them to believe that (i)
the Registration Statement, or any amendment thereto, as of the time it became
effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Act) as of the Closing Date
or the Option Closing Date, as the case may be, 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 (ii) the
Prospectus, or any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date or the Option Closing Date, as
the case may be, contained an untrue statement of a material fact or omitted to
state a material fact, necessary in order to make the statements, in the light
of the circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements, schedules and
statistical information therein). With respect to such statement, Xxxxxxx Xxxx &
Xxxxxxxxx may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(d) The Representatives shall have received at or prior to the
Closing Date from Xxxxxxx Xxxx & Xxxxxxxxx memorandum or summary, in form and
substance satisfactory to the Representatives, with respect to the qualification
for offering and sale by the Underwriters of the Shares under the State
securities or Blue Sky laws of such jurisdictions as the Representatives may
reasonably have designated to the Company.
(e) You shall have received, on each of the dates hereof, the
Closing Date and the Option Closing Date, as the case may be, a letter dated the
date hereof, the Closing Date or the Option Closing Date, as the case may be, in
form and substance satisfactory to you, from PricewaterhouseCoopers LLP,
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder and
stating that in their opinion the financial statements and schedules examined by
them and included in the
24
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published Rules
and Regulations; and containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and Prospectus.
(f) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a certificate or
certificates signed by Xxxx X. Xxxxx and Xxxx X. Xxxxx, in their respective
capacities as President and Chief Executive Officer and Chief Financial Officer
to the effect that, as of the Closing Date or the Option Closing Date, as the
case may be, each of them severally represents as follows:
(i) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have
been taken or are, to his knowledge, contemplated by the Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing
Date or the Option Closing Date, as the case may be;
(iii) All filings required to have been made pursuant to Rules
424 or 430A under the Act have been made;
(iv) He or she has carefully examined the Registration
Statement and the Prospectus and, in his or her opinion, as of the
effective date of the Registration Statement, the statements contained
in the Registration Statement were true and correct, and such
Registration Statement and Prospectus did not omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, and since the effective date of the
Registration Statement, no event has occurred which should have been
set forth in a supplement to or an amendment of the Prospectus which
has not been so set forth in such supplement or amendment; and
(v) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, there has not been
any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or
otherwise, of the Company and its Subsidiaries taken as a whole or the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company and the
Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business.
(g) The Company and the Selling Shareholders shall have
furnished to the Representatives such further certificates and documents
confirming the representations and warranties, covenants and conditions
contained herein and related matters as the Representatives may reasonably have
requested.
25
(h) The Lockup Agreements described in Section 4(a)(x)(B) are
in full force and effect.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representatives and to Xxxxxxx Xxxx
& Xxxxxxxxx, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company of such termination in writing
(either by facsimile or by electronic mail) at or prior to the Closing Date or
the Option Closing Date, as the case may be, provided that such condition has
not been cured prior to the Closing Date.
In such event, the Selling Shareholders, the Company and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 5 and 8 hereof).
7. CONDITIONS OF THE OBLIGATIONS OF THE SELLERS.
The obligations of the Sellers to sell and deliver the portion
of the Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the Option Closing
Date, as the case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened.
8. INDEMNIFICATION.
(a) The Company and the Operating Company each, jointly and
severally, agree:
(1) to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within
the meaning of the Act, against any losses, claims, damages or
liabilities to which such Underwriter or any such controlling
person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, (ii) 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 any
act or failure to act, or (iii) any alleged act or failure to
act by any Underwriter in connection with, or relating in any
manner to, the Shares or the offering contemplated hereby,
which is included as part of or referred to in any loss,
claim, damage, liability or action arising out of or based
upon matters covered by clause (i) or (ii) above (PROVIDED,
that the Company and the Operating Company shall not be liable
under this clause (iii) to the extent that it is determined in
a final judgment by a court of competent
26
jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct); PROVIDED,
HOWEVER, that the Company and the Operating Company will 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 the Registration Statement, any
Preliminary Prospectus, the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written
information furnished to the Company or the Operating Company
by or through the Representatives specifically for use in the
preparation thereof.
(2) to reimburse each Underwriter and each such
controlling person upon demand for any legal or other
out-of-pocket expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating or
defending any such loss, claim, damage or liability, action or
proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Shares, whether or not
such Underwriter or controlling person is a party to any
action or proceeding. In the event that it is finally
judicially determined that the Underwriters were not entitled
to receive payments for legal and other expenses pursuant to
this subparagraph, the Underwriters will promptly return all
sums that had been advanced pursuant hereto.
(b) The Selling Shareholders agree to indemnify the
Underwriters and each person, if any, who controls any Underwriter within the
meaning of the Act, against any losses, claims, damages or liabilities to which
such Underwriter or controlling person may become subject under the Act or
otherwise to the same extent as indemnity is provided by the Company pursuant to
Section 8(a) above. In no event, however, shall the liability of any Selling
Shareholder for indemnification under this Section 8(a) exceed the proceeds
received by such Selling Shareholder from the Underwriters in the offering. This
indemnity obligation will be in addition to any liability which the Company or
the Operating Company may otherwise have.
(c) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, the Operating Company, each of their directors,
each of their officers who have signed the Registration Statement, the Selling
Shareholders, and each person, if any, who controls the Company or the Operating
Company within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company, the Operating Company or any such director,
officer, Selling Shareholder or controlling person may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company, the Operating Company or any such director, officer,
Selling Shareholder or controlling person in connection with investigating or
defending any
27
such loss, claim, damage, liability, action or proceeding; provided, however,
that each Underwriter will be liable in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by or through
the Representatives specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a), (b) or (c) shall be available to
any party who shall fail to give notice as provided in this Section 8(d) if the
party to whom notice was not given was unaware of the proceeding to which such
notice would have related and was materially prejudiced by the failure to give
such notice, but the failure to give such notice shall not relieve the
indemnifying party or parties from any liability which it or they may have to
the indemnified party for contribution or otherwise than on account of the
provisions of Section 8(a), (b) or (c). In case any such proceeding 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 and shall pay as incurred the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel
at its own expense. Notwithstanding the foregoing, the indemnifying party shall
pay as incurred (or within 30 days of presentation) the reasonable fees and
expenses of the counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) or (b) and by the Company in the case of parties
indemnified pursuant to Section 8(c). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding)
28
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action
or proceeding.
(e) To the extent the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a), (b) or (c) above in respect of any losses, claims,
damages or liabilities (or actions or proceedings 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 or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders 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 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 Shareholders 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 or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders 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 Shareholders
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, the Operating Company or the Selling Shareholders 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.
(f) The Company, the Selling Shareholders and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 8(f) 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 Section 8(f). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(f) 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 (f), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter, (ii) 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, and (iii) no
Selling Shareholder shall be required to contribute any amount in excess of the
proceeds received by such Selling Shareholder from the Underwriters in the
offering. The Underwriters' obligations in this Section 8(f) to contribute are
several in proportion to their respective underwriting obligations and not
joint.
29
(g) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court may be
served upon him or it by any other contributing party and consents to the
service of such process and agrees that any other contributing party may join
him or it as an additional defendant in any such proceeding in which such other
contributing party is a party.
(h) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company, the Operating Company and the
Selling Shareholders set forth in this Agreement shall remain operative and in
full force and effect, regardless of (i) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, the Company, the
Operating Company, their directors or officers, the Selling Shareholders or any
persons controlling the Company or the Operating Company, (ii) acceptance of any
Shares and payment therefor hereunder, and (iii) any termination of this
Agreement. A successor to any Underwriter, or to the Company, the Operating
Company. their directors or officers, or any person controlling the Company or
the Operating Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. DEFAULT BY UNDERWRITERS.
If on the Closing Date or the Option Closing Date, as the case
may be, any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company, the
Operating Company or a Selling Shareholder), you, as Representatives of the
Underwriters, shall use your reasonable efforts to procure within 36 hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company and the Selling Shareholders such amounts as may be agreed upon
and upon the terms set forth herein, the Firm Shares or Option Shares, as the
case may be, which the defaulting Underwriter or Underwriters failed to
purchase. If during such 36 hours you, as such Representatives, shall not have
procured such other Underwriters, or any others, to purchase the Firm Shares or
Option Shares, as the case may be, agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of shares with
respect to which such default shall occur does not exceed 10% of the Firm Shares
or Option Shares, as the case may be, covered hereby, the other Underwriters
shall be obligated, severally, in proportion to the respective numbers of Firm
Shares or Option Shares, as the case may be, which they are obligated to
purchase hereunder, to purchase the Firm Shares or Option Shares, as the case
may be, which such defaulting Underwriter or Underwriters failed to purchase, or
(b) if the aggregate number of shares of Firm Shares or Option Shares, as the
case may be, with respect to which such default shall occur exceeds 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the Company or
you as the Representatives of the Underwriters will have the right, by written
notice given within the next 36-hour period to the parties to this Agreement, to
30
terminate their obligation to purchase the Firm Shares or Option Shares without
liability on the part of the non-defaulting Underwriters or of the Company, the
Operating Company or of the Selling Shareholders except to the extent provided
in Section 8 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section 9, the Closing Date or Option Closing
Date, as the case may be, may be postponed for such period, not exceeding seven
days, as you, as Representatives, may determine in order that the required
changes in the Registration Statement or in the Prospectus or in any other
documents or arrangements may be effected. The term "Underwriter" includes any
person substituted for a defaulting Underwriter. Any action taken under this
Section 9 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. NOTICES.
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows: if to the Underwriters, to Deutsche Banc
Alex. Xxxxx Inc., Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. Attention: Legal
Department; with a copy to Deutsche Banc Alex. Xxxxx Inc., 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel; if to the Company, the
Operating Company or the Selling Shareholders, to
Xxxxxx Xxxxx & Company Holdings
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Secretary and General Counsel
11. TERMINATION.
(a) This Agreement may be terminated by you by notice to the
Company at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, of the Company, the Operating Company and the
Company's subsidiaries taken as a whole or the earnings, business, management,
properties, assets, rights, operations, condition (financial or otherwise) or
prospects of the Company, the Operating Company and the Company's subsidiaries
taken as a whole, whether or not arising in the ordinary course of business,
(ii) any outbreak or escalation of hostilities or declaration of war or national
emergency or other national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets of
the United States would, in your reasonable judgment, make it impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares, or (iii) suspension of trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or limitation on prices (other
than limitations on hours or numbers of days of trading) for securities on
either such Exchange, (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or
31
operations of the Company or the Operating Company, (v) declaration of a banking
moratorium by United States or New York State authorities, (vi) any downgrading,
or placement on any watch list for possible downgrading, in the rating of the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Exchange Act);
(vii) the suspension of trading of the Company's common stock by the New York
Stock Exchange, the Commission, or any other governmental authority or, (viii)
the taking of any action by any governmental body or agency in respect of its
monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States; or
(b) as provided in Sections 6 and 9 of this Agreement.
12. SUCCESSORS.
This Agreement has been and is made solely for the benefit of
the Underwriters, the Company, the Operating Company and the Selling
Shareholders and their respective successors, executors, administrators, heirs
and assigns, and the officers, directors and controlling persons referred to
herein, and no other person will have any right or obligation hereunder. No
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign merely because of such purchase.
13. INFORMATION PROVIDED BY UNDERWRITERS.
The Company, the Operating Company, the Selling Shareholders
and the Underwriters acknowledge and agree that the only information furnished
or to be furnished by any Underwriter to the Company for inclusion in any
Prospectus or the Registration Statement consists of the information set forth
in the last paragraph on the front cover page (insofar as such information
relates to the Underwriters), legends required by Item 502(d) of Regulation S-K
under the Act and the information under the caption "Underwriting" in the
Prospectus.
14. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company,
the Operating Company or their directors or officers and (c) delivery of and
payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Underwriters agree to keep confidential any disclosure of
material, non-public information made by the Company to the Underwriters
specifically in connection with any requests
32
for consents from the Underwriters under this Agreement, unless the prior
written consent has been obtained from the Company.
If the foregoing letter is in accordance with your
understanding of our agreement, please sign and return to us the enclosed
duplicates hereof, whereupon it will become a binding agreement among the
Selling Shareholders, the Company, the Operating Company and the several
Underwriters in accordance with its terms.
Any person executing and delivering this Agreement as
Attorney-in-Fact for a Selling Shareholder represents by so doing that he has
been duly appointed as Attorney-in-Fact by such Selling Shareholder pursuant to
a validly existing and binding Power of Attorney which authorizes such
Attorney-in-Fact to take such action.
[signature page follows]
33
Very truly yours,
XXXXXX XXXXX & COMPANY HOLDINGS
By
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
XXXXXX XXXXX & COMPANY
By
---------------------------------------------
Name: Xxxx X. Xxxxx
Title: President and Chief Executive Officer
Selling Shareholders listed on SCHEDULE II
By
---------------------------------------------
Attorney-in-Fact
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXX X. XXXXX & CO. INCORPORATED
UBS WARBURG LLC
As Representatives of the several
Underwriters listed on SCHEDULE I
By: Deutsche Banc Alex. Xxxxx Inc.
By:
------------------------------------------------
Authorized Officer
34
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
UNDERWRITER TO BE PURCHASED
----------- ---------------------
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
UBS Warburg LLC
--------
Total --------
SCHEDULE II
SCHEDULE OF SELLING SHAREHOLDERS
Number of Firm Shares
SELLING SHAREHOLDER TO BE SOLD
------------------- ---------------------
--------
Total --------
SCHEDULE III
SCHEDULE OF OPTION SHARES
Maximum Number Percentage of
of Option Shares Total Number of
NAME OF SELLER TO BE SOLD OPTION SHARES
-------------- ---------- -------------
------- -----
Total 100%
------- -----
