1
SEMINIS, INC.
CLASS A COMMON STOCK
PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
(U.S. VERSION)
June [ ], 1999
Xxxxxxx, Xxxxx & Co.,
X.X. Xxxxxx Securities Inc.,
ING Baring Xxxxxx Xxxx LLC,
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc.,
VECTORMEX Incorporated,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Seminis, Inc., a Delaware corporation (the "Company") and a
majority-owned subsidiary of Xxxxx, X.X. de C.V., a Mexican company (the
"Principal Stockholder"), proposes, subject to the terms and conditions stated
herein, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 11,000,000 shares (the "Firm Shares") and, at
the election of the Underwriters, up to 1,650,000 additional shares (the
"Optional Shares") of Class A Common Stock, par value $0.01 per share ("Class A
Common Stock"), of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 3 hereof being collectively
called the "Shares").
On June [ ], 1999, Seminis, Inc., an Illinois corporation (the
"Predecessor Company"), was merged (the "Merger") with and into the Company.
Pursuant to the terms of the Merger, all issued and outstanding shares of Class
A Common Stock, par value $0.01 per share, of the Predecessor Company and all
issued and outstanding shares of Class B Common Stock, par value $0.01 per
share, of the Predecessor Company were converted into one-half the number of
such shares of Class B Common Stock, $0.01 par value ("Class B Common Stock"
and, together with the Class A Common Stock, "Stock"), of the Company followed
immediately thereafter by a one-for-one stock dividend. As used herein, the
"Com-
2
pany" shall be deemed to include the Predecessor Company prior to the effective
time of the Merger.
It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of up to a total of 3,162,500
shares of Class A Common Stock (the "International Shares"), including the
overallotment option thereunder, through arrangements with certain underwriters
outside the United States (the "International Underwriters"), for whom Xxxxxxx
Xxxxx International, X.X. Xxxxxx Securities Ltd., ING Barings Limited as agent
for ING Bank N.V., London branch, Morgan Stanley & Co. International Limited and
Solomon Brothers International Limited acting as lead managers. Anything herein
or therein to the contrary notwithstanding, the respective closings under this
Agreement and the International Agreement are hereby expressly made conditional
on one another. The Underwriters hereunder and the International Underwriters
are simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the International Shares. The
latter form of prospectus will be identical to the former except for certain
substitute pages as included in the registration statement and amendments
thereto as mentioned below. Except as used in Sections 3, 4, 6, 12 and 14
herein, and except as the context may otherwise require, references hereinafter
to the Shares shall include all the shares of Class A Common Stock which may be
sold pursuant to either this Agreement or the International Underwriting
Agreement, and references herein to any prospectus whether in preliminary or
final form, and whether as amended or supplemented, shall include both the U.S.
and the international versions thereof.
The Company and the Underwriters, in accordance with the requirements
of Rule 2720 ("Rule 2720") of the National Association of Securities Dealers,
Inc. (the "NASD") and subject to the terms and conditions stated herein, also
hereby confirm the engagement of the services of Xxxxxxx, Xxxxx & Co. as a
"qualified independent underwriter" (in its capacity thereof, the "Independent
Underwriter") within the meaning of Section (b)(15) of Rule 2720 in connection
with the offering and sale of the Shares.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-72141)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement has heretofore been filed
with the Commission; and no stop order suspending the effectiveness of
the Initial Registration State-
2
3
ment, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Preliminary
Prospectus"); the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 6(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus";
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein;
(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the
3
4
capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries (a
"Material Adverse Effect"), otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property (other than purchase money liens) and do not materially
interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and
its subsidiaries;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each subsidiary of the Company
listed in Exhibit 21 of the Registration Statement (each a "Material
Subsidiary") has been duly organized and is validly existing as a
corporation or other business entity in good standing under the laws of
its jurisdiction of formation;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description of the Stock
contained in the Prospectus; and all of the issued shares of capital
stock of each Material Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares and except as set forth in the
Prospectus) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(h) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein and
under the International Underwriting Agreement, will be duly and
validly issued and fully paid and non-assessable and will conform to
the description of the Class A Common Stock contained in the
Prospectus;
(i) The issue and sale of the Shares by the Company hereunder
and under the International Underwriting Agreement and the compliance
by the Company
4
5
with all of the provisions of this Agreement and the International
Underwriting Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the transactions
contemplated by this Agreement and the International Underwriting
Agreement, except the registration under the Act of the Shares and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(j) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(k) The statements set forth in the Prospectus under the
captions "Description of Capital Stock," "Certain Relationships and
Related Transactions" and "Shares Eligible for Future Sale" and in the
Registration Statement in Items 14 and 15, insofar as such statements
constitute a summary of the terms of the capital stock, legal matters,
documents or proceedings referred to therein, are accurate, complete
and fair;
(l) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(m) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company,"
as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(n) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
5
6
(o) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, and Seonjin
Accounting Corporation, who have certified certain financial statements
of Hungnong Seed Co., Ltd., are, to the best of the Company's
knowledge, each independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder;
(p) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to
which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. As a result of
such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse Effect
or result in any material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as used herein means
any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000;
(q) The consolidated financial statements, and the related
notes thereto, included in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Predecessor Company and its consolidated subsidiaries and of Hungnong
Seed Co., Ltd. and its consolidated subsidiaries as of the dates
indicated and the results of their respective operations and changes in
their respective consolidated cash flows for the periods indicated;
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis,
and the supporting schedules, if any, included in the Registration
Statement present fairly the information required to be stated therein;
and the pro forma financial statements, and the related notes thereto,
included in the Registration Statement and the Prospectus have been
prepared in accordance with the applicable requirements of the Act and
are based upon good faith estimates and assumptions believed by the
Company to be reasonable;
(r) No person has the right to require the Company to register
any securities for offering and sale under the Act by reason of the
filing of the Registration Statement with the Commission or the issue
and sale of the Shares to be sold by the Company hereunder, except for
rights which have been waived;
(s) The Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith, except where the
failure to file such state, local or foreign returns or pay such state,
local or foreign taxes, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect; and there is
no material tax deficiency which has been or might reasonably be
expected to be asserted or threatened against the Company or any of its
subsidiaries;
6
7
(t) The statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources which are believed by the Company to be reliable;
(u) The Company and each of its subsidiaries owns, is licensed
to use or otherwise possesses adequate rights to use the patents,
patent rights, licenses, inventions, trademarks, service marks, trade
names, copyrights and know-how, including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures, including, without limitation, the germplasm
used or to be used in its products (collectively, the "Intellectual
Property"), reasonably necessary to carry on the business conducted by
it, except to the extent that the failure to own, be licensed to use or
otherwise possess adequate rights to use such Intellectual Property
would not have a Material Adverse Effect; the Company has not received
any notice of infringement of or conflict with, and to the best of the
Company's knowledge there is no infringement of or conflict with,
asserted rights of others with respect to the Intellectual Property
which could reasonably be expected to result in a Material Adverse
Effect; the discoveries, inventions, products or processes of the
Company referred to in the Registration Statement and the Prospectus do
not, to the best of the Company's knowledge, infringe or conflict with
any right or patent of any third party, or any discovery, patent
product or process which is the subject of a patent application filed
by any third party;
(v) The Company and each of its subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, and neither the Company nor any such subsidiary has
received any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization, except (i) as described in the
Registration Statement and the Prospectus or (ii) where (1) the failure
to obtain, or modification or revocation of, any such license, permit,
certificate, consent, order, approval or authorization, or (2) the
failure to make any such declaration or filing, would not have a
Material Adverse Effect; and each of the Company and its subsidiaries
is in compliance with all laws and regulations relating to the conduct
of its business as conducted as of the date hereof, except where such
noncompliance would not have a Material Adverse Effect;
(w) There are no existing or, to the best of the Company's
knowledge, threatened labor disputes with the employees of the Company
or any of its subsidiaries which could reasonably be expected to result
in a Material Adverse Effect;
(x) The Company and each of its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have
7
8
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to have received required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a Material Adverse Effect;
(y) To the best of the Company's knowledge, there are no
existing, threatened or potential claims which could result in costs or
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with any Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential
liabilities to third parties) which could, individually or in the
aggregate, result in a Material Adverse Effect;
(z) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of
the Company and its affiliates has been maintained in compliance with
its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the
Internal Revenue Code of 1986, as amended (the "Code"), except where
the failure to maintain such plans would not, individually or in the
aggregate, have a Material Adverse Effect; no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code,
has occurred with respect to any such plan excluding transactions
effected pursuant to a statutory or administrative exemption; and for
each such plan which is subject to the funding rules of Section 412 of
the Code or Section 302 of ERISA, no "accumulated funding deficiency"
as defined in Section 412 of the Code has been incurred, whether or not
waived, and the fair market value of the assets of each such plan
(excluding for these purposes accrued but unpaid contributions)
exceeded the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions;
(aa) The Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Class A Common Stock;
(bb) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by the
Company; and
(cc) The Company, the surviving corporation of the Merger with
the Predecessor Company, has the status, rights and liabilities of a
surviving corporation set forth in Section 259 of the Delaware General
Corporation Law (the "DGCL"); and the Merger was duly authorized by all
necessary corporate and stockholder action on the part of each
constituent corporation and complied with all applicable provisions of
the DGCL and the Illinois Business Corporation Act of 1983 (the
"IBCA").
8
9
2. The Principal Stockholder represents and warrants to, and agrees with, each
of the Underwriters that:
(a) The Principal Stockholder has been duly incorporated and
is validly existing as a company in good standing under the laws of
Mexico;
(b) The issue and sale of the Shares by the Company hereunder
and under the International Underwriting Agreement and the compliance
by the Company and the Principal Stockholder with all of the provisions
of this Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Principal Stockholder or any of
its subsidiaries is a party or by which the Principal Stockholder or
any of its subsidiaries is bound or to which any of the property or
assets of the Principal Stockholder or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions
of the charter or by-laws of the Principal Stockholder or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Principal Stockholder or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company and the Principal
Stockholder of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except the registration under the
Act of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the International
Underwriters;
(c) The Principal Stockholder has not taken nor will it take,
directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Class A Common Stock;
(d) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by the
Principal Stockholder; and
(e) The representations and warranties of the Company
contained in Section 1 of this Agreement are true and correct.
3. Subject to the terms and conditions herein set forth, (a) the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase
price per share of $[ ], the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto and (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional Shares as
provided below, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share set forth in clause
(a) of this Section 3, that portion of the number of Optional Shares as to which
such election shall have been ex-
9
10
ercised (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying such number of Optional Shares by a fraction, the numerator of
which is the maximum number of Optional Shares which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum number of Optional
Shares that all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 1,650,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the purpose of covering sales of shares in
excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 6 hereof)
or, unless you and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
4. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
5. (a) The Company hereby confirms its engagement of the services of
the Independent Underwriter as, and the Independent Underwriter hereby confirms
its agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720 with respect to
the offering and sale of the Shares.
(b) The Independent Underwriter hereby represents and warrants to,
and agrees with, the Company and the Underwriters that with respect to the
offering and sale of the Shares as described in the Prospectus:
(i) The Independent Underwriter constitutes a
"qualified independent underwriter" within the meaning of
Section (b)(15) of Rule 2720;
(ii) The Independent Underwriter has participated in
the preparation of the Registration Statement and the
Prospectus and has exercised the usual standards of "due
diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the
legal responsibilities and liabilities of an underwriter under
the Act specifically including those inherent in Section 11
thereof;
(iv) Based upon (A) a review of the Company,
including an examination of the Registration Statement,
information regarding the earnings, assets, capital structure
and growth rate of the Company and other pertinent financial
and statistical data, (B) inquiries of and conferences with
the management of the Company and its counsel and independent
public accountants regarding the business and operations of
the Company, (C) consideration of
10
11
the prospects for the industry in which the Company competes,
estimates of the business potential of the Company,
assessments of its management, the general condition of the
securities markets, market prices of the capital stock and
debt securities of, and financial and operating data
concerning, companies believed by the Independent Underwriter
to be comparable to the Company with equity securities of
maturity and seniority similar to the Shares and the demand
for securities of comparable companies similar to the Shares,
and (D) such other studies, analyses and investigations as the
Independent Underwriter has deemed appropriate, and assuming
that the offering and sale of the Shares is made as
contemplated herein and in the Prospectus, the Independent
Underwriter recommends, as of the date of the execution and
delivery of this Agreement, that the initial public offering
price of the Shares be not lower than $[ ], which offering
price should in no way be considered or relied upon as an
indication of the value of the Shares; and
(v) Subject to the provisions of Section 10 hereof,
the Independent Underwriter will furnish to the Underwriters
and to the NASD at the Time of Delivery a letter, dated the
Time of Delivery, in form and substance satisfactory to the
Underwriters, to the effect of clauses (i) through (iv) above.
(c) The Independent Underwriter hereby agrees with the Company, the
Principal Stockholder and the Underwriters that, as part of its services
hereunder, in the event of any amendment or supplement to the Prospectus,
the Independent Underwriter will render services as a "qualified independent
underwriter" within the meaning of Section (b)(15) of Rule 2720 with respect
to the offering and sale of the Shares as described in the Prospectus as so
amended or supplemented that are substantially the same as those services
being rendered with respect to the offering and sale of the Shares as
described in the Prospectus (including those described in subsection (b)
above).
(d) The Company, the Principal Stockholder, the Underwriters and the
Independent Underwriter agree to comply in all material respects with all of
the requirements of Rule 2720 applicable to them in connection with the
offering and sale of the Shares. The Company agrees to cooperate with the
Underwriters and the Independent Underwriter to enable the Underwriters to
comply with Rule 2720 and the Independent Underwriter to perform the
services contemplated by this Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, the Company agrees to pay the Independent Underwriter $10,000 at
the First Time of Delivery. In addition, the Company agrees promptly to
reimburse the Independent Underwriter for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in
connection with this Agreement and the services to be rendered hereunder.
(f) The Independent Underwriter hereby consents to the references to it
as set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 7(a) hereof.
11
12
6. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as Xxxxxxx, Xxxxx & Co. may request upon at least
forty-eight hours' prior notice to the Company, shall be delivered by
or on behalf of the Company to Xxxxxxx, Sachs & Co., through the
facilities of the Depository Trust Company, ("DTC") for the account of
such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co.
at least forty-eight hours in advance. The Company will cause the
certificates representing the Shares to be made available for checking
and packaging at least twenty-four hours prior to the Time of Delivery
(as defined below) with respect thereto at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares,
9:30 a.m., New York City time, on June [ ], 1999 or such other time and
date as Xxxxxxx, Sachs & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York time, on
the date specified by Xxxxxxx, Xxxxx & Co. in the written notice given
by Xxxxxxx, Sachs & Co. of the Underwriters' election to purchase such
Optional Shares, or such other time and date as Xxxxxxx, Xxxxx & Co.
and the Company may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "First Time of
Delivery," such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called the "Second Time of
Delivery," and each such time and date for delivery is herein called a
"Time of Delivery."
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 10 hereof,
including the cross receipt for the Shares and any additional documents
requested by the Underwriters pursuant to SECTIONS 10(o) AND 10(p)
hereof, will be delivered at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and the
Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 5:00 p.m.,
New York City time, on the New York Business Day next preceding such
Time of Delivery, at which meeting the final drafts of the documents to
be delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Section 6, "New
York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to
close.
7. The Company covenants and agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been
12
13
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies
thereof; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process or
become subject to taxation in any such jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the Act, to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
13
14
Section 11(a) of the Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder and under the International
Underwriting Agreement, any securities of the Company that are
substantially similar to the Shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing
on, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without your
prior written consent; provided, however, that the Company may issue
shares of Stock as consideration for any future acquisition after the
date of the Prospectus, provided that any person that receives such
Stock delivers to the Underwriters executed copies of an agreement
substantially to the effect set forth in this subsection (e) in form
and substance satisfactory to you;
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), to make available to its stockholders consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed, and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on The Nasdaq National Market ("Nasdaq");
(j) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 under the Act;
14
15
(k) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act; and
(l) Not to, without your prior written consent, waive or
amend, rescind or otherwise modify Section 4(c) of the Registration
Rights Agreement dated as of October 31, 1995 by and among the
Predecessor Company and the shareholders of the Predecessor Company
signatory thereto.
8. The Principal Stockholder covenants and agrees with each of the
Underwriters that, during the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to (a) offer, sell, contract to sell, pledge, grant any option to purchase,
make any short sale or otherwise dispose of any shares of Stock of the Company,
or any options or warrants to purchase any shares of Stock of the Company, or
any securities convertible into, exchangeable for or that represent the right to
receive shares of Stock of the Company, whether now owned or hereinafter
acquired, owned directly by the Principal Stockholder (including holding as a
custodian) or with respect to which the Principal Stockholder has beneficial
ownership within the rules and regulations of the Commission or (b) make any
demand for or exercise any right with respect to, the registration of any shares
of Stock of the Company, or any securities convertible into, exchangeable for or
that represent the right to receive shares of Stock of the Company, without your
prior written consent; provided, however, that this Section 8 shall not prohibit
any transaction required by the Note Acquisition Agreement dated as of March 22,
1999 by and among the Principal Stockholder, DNAP Holding Corporation, the
Holders referred to therein, Xxxxxx Guaranty Trust Company of New York,
Citibank, N.A. and Bankers Trust Company.
9. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the International Underwriting
Agreement, the Agreement Between Syndicates, the Selling Agreement, the Blue Sky
Memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 7(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing of the Shares on Nasdaq;
(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to
15
16
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 9. It is understood, however, that,
except as provided in this Section 9, and Sections 11 and 14 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
10. The respective obligations of the Underwriters and the Independent
Underwriter hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, in the discretion of the Representatives and the
Independent Underwriter, as the case may be, to the condition that all
representations and warranties and other statements of the Company and the
Principal Stockholder herein are, at and as of such Time of Delivery, true and
correct, the condition that the Company and the Principal Stockholder shall have
performed all of their respective obligations hereunder theretofore to be
performed, and the condition (in the case of the Underwriters) that the
Independent Underwriter shall have furnished to the Underwriters and the NASD
the letter referred to in clause (v) of Section 5(b) hereof, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters,
shall have furnished to you such written opinion (a draft of such
opinion is attached as Annex I(a) hereto), dated such Time of Delivery,
with respect to the matters covered in paragraphs (i), (iii), (iv) and
(viii) of subsection (d) below as well as such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxxx Xxxxxx, Esq., General Counsel for the Company,
shall have furnished to you his opinion (a draft of such opinion is
attached as Annex I(b) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Each of the Material Subsidiaries of the Company
has been duly organized and is validly existing as a
corporation or other business entity in good standing under
the laws of its jurisdiction of formation; and all of the
issued shares of capital stock of each such Material
Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable, and (except for directors'
qualifying shares and except as otherwise set forth in the
Prospectus) are owned directly or indirectly by the Company,
free and clear of
16
17
all liens, encumbrances, equities or claims (such counsel
being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect to
matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state
that he believes that both you and he are justified in relying
upon such opinions and certificates and that copies of such
opinions and certificates be delivered to you upon your
request);
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of failure to be so
qualified in any such jurisdiction (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that
such counsel shall state that he believes that both you and he
are justified in relying upon such opinions and certificates
and that copies of such opinions and certificates be delivered
to you upon your request);
(iii) The Company and its subsidiaries have good and
marketable title in fee simple to all real property owned by
them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed
to be made of such property by the Company and its
subsidiaries; and any real property (other than purchase money
liens) and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material
and do not materially interfere with the use made and proposed
to be made of such property and buildings by the Company and
its subsidiaries (in giving the opinion in this clause, such
counsel may state that no examination of record titles for the
purpose of such opinion has been made, and that he is relying
upon a general review of the titles of the Company and its
subsidiaries, upon opinions of local counsel and abstracts,
reports and policies of title companies rendered or issued at
or subsequent to the time of acquisition of such property by
the Company or its subsidiaries, upon opinions of counsel to
the lessors of such property and, in respect to matters of
fact, upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that he
believes that both you and he are justified in relying upon
such opinions, abstracts, reports, policies and certificates
and that copies of such opinions, abstracts, reports, policies
and certificates be delivered to you upon your request);
(iv) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which,
if
17
18
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(v) The issue and sale of the Shares being delivered
at such Time of Delivery by the Company and the compliance by
the Company with all of the provisions of this Agreement and
the International Underwriting Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument known to such counsel
to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject; nor will such action result in
any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any Federal or
State of CALIFORNIA statute or any Federal or State of
California order, rule or regulation known to such counsel of
any Federal or State of CALIFORNIA court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties;
(vi) Neither the Company nor any of its subsidiaries
is in violation of its charter or by-laws or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement, lease or
other material agreement or instrument to which it is a party
or by which it or any of its properties may be bound;
(vii) The Company and each of its subsidiaries owns,
is licensed to use or otherwise possesses adequate rights to
use the Intellectual Property reasonably necessary to carry on
the business conducted by it, except to the extent that the
failure to own, be licensed to use or otherwise possess
adequate rights to use such Intellectual Property would not
have a Material Adverse Effect; the Company has not received
any notice of infringement of or conflict with, and to the
best of the such counsel's knowledge there is no infringement
of or conflict with, asserted rights of others with respect to
the Intellectual Property which could reasonably be expected
to result in a Material Adverse Effect; the discoveries,
inventions, products or processes of the Company referred to
in the Registration Statement and the Prospectus do not, to
the best of such counsel's knowledge, infringe or conflict
with any right or patent of any third party, or any discovery,
patent product or process which is the subject of a patent
application filed by any third party;
(viii) To the best of such counsel's knowledge, the
Company and each of its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and has made
all declarations and filings with, all federal, state, local
and other
18
19
governmental authorities (including foreign regulatory
agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to own or
lease, as the case may be, and to operate its properties and
to carry on its business as conducted as of the date hereof;
neither the Company nor any such subsidiary has received any
actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate,
consent, order, approval or other authorization, except (1) as
described in the Registration Statement and the Prospectus or
(2) where (a) the failure to obtain, or modification or
revocation of, any such license, permit, certificate, consent,
order, approval or authorization, or (b) the failure to make
any such declaration or filing, would not have a Material
Adverse Effect; and to the best of such counsel's knowledge
each of the Company and its subsidiaries is in compliance with
all laws and regulations relating to the conduct of its
business as conducted as of the date hereof, except where such
noncompliance would not have a Material Adverse Effect;
(ix) There are no existing or, to the best of such
counsel's knowledge, threatened labor disputes with the
employees of the Company or any of its subsidiaries which
could reasonably be expected to result in a Material Adverse
Effect; and
(x) To the best of such counsel's knowledge, the
Company and each of its subsidiaries are in compliance with
all Environmental Laws, except where such noncompliance would
not, individually or in the aggregate, have a Material Adverse
Effect; there are no legal or governmental proceedings pending
or, to the best of such counsel's knowledge, threatened
against or affecting the Company or any of its subsidiaries
under any Environmental Law which, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
State of California and the Federal law of the United States;
(d) Milbank, Tweed, Xxxxxx & XxXxxx LLP, special counsel for
the Company and the Principal Stockholder, shall have furnished to you
their opinion (a draft of such opinion is attached as Annex I(c)
hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company (but not including the Predecessor
Company) has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to
own its properties and conduct its business as described in
the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have
19
20
been duly and validly authorized and issued and are fully paid
and nonassessable; and the Shares conform to the description
of the Class A Common Stock contained in the Prospectus;
(iii) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Company;
(iv) The issue and sale of the Shares being delivered
at such Time of Delivery by the Company and the compliance by
the Company with all of the provisions of this Agreement and
the International Underwriting Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, (1) the
[Credit Agreement] dated as of the date hereof by and among
the Company and [ ], (2) the Collaboration Agreement dated as
of January 31, 1997 by and between THE PRINCIPAL STOCKHOLDER
(FORMERLY KNOWN AS Empresas La Moderna, S.A. de C.V. ("ELM"))
and Monsanto Company ("Monsanto"), (3) the Research Funding
and Commercialization Agreement dated as of October 31, 1997
by and between ELM and Mendel Biotechnology, Inc. ("Mendel"),
(4) the Technology Evaluation and Option Agreement dated as of
December 1, 1997 by and between ELM and Xxxx Xxxxx Centre
Innovations Limited, (5) the Long Term Funded Research
Agreement dated as of January 1, 1997 by and between DNA Plant
Technology Corporation and Seminis Vegetable Seeds, Inc.
"SVS"), (6) the Limited Liability Company Agreement of RDCO,
LLC dated as of May 29, 1998 by and between SVS and LSL
Biotechnologies, Inc., (7) the Share Sale and Purchase
Agreement dated as of June 17, 1998 by and between the Company
and Shareholders of Xxxxxx Xxx Seed Co., Ltd, (8) the Share
Sale and Purchase Agreement dated as of June 12, 1998 by and
between the Company and Shareholders of Hungnong Seed Co.,
Ltd, (9) the Seminis, Inc. 1998 Stock Option Plan (As Amended
and Restated) and (10) the Credit Agreement dated as of April
30, 1999 by and among the Company, Seminis Vegetable Seeds,
Inc., a wholly owned subsidiary of the Company, SVS Holland
B.V., a wholly owned subsidiary of the Company, Xxxxxx Trust
and Savings Bank and Bank of Montreal, Chicago Branch; nor
will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company or
the DGCL or any Federal statute or any Federal order, rule or
regulation known to such counsel of any Federal court or
governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties;
(v) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company and the
Principal Stockholder of the transactions contemplated by this
Agreement and the International Underwriting Agreement, except
the registration under the Act of the Shares, and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign
20
21
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters;
(vi) The statements set forth in the Prospectus under
the captions "Description of Capital Stock," "Certain
Relationships and Related Transactions" and "Shares Eligible
for Future Sale" and in the Registration Statement in Items 14
and 15, insofar as such statements constitute a summary of the
terms of the capital stock, legal matters, document or
proceedings referred to therein, are accurate, complete and
fair;
(vii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the rules and regulations thereunder, although they do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in
the opinion in subsection (vii) of this Section 10(d); they
have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time
of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed
or described as required;
(viii) The Company is not an "investment company," as
such term is defined in the Investment Company Act; and
(ix) The Company is the surviving corporation of the
Merger with the Predecessor Company and has the status, rights
and liabilities of a sur-
21
22
viving corporation set forth in Section 259 of the DGCL; and
the Merger was duly authorized by all necessary corporate and
stockholder action on the part of the Surviving Corporation
and complied with all applicable provisions of the DGCL.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
State of New York, the Federal laws of the United States and the DGCL;
(e) XXXX XXXX XXXXXXXX, special counsel for the Principal
Stockholder, shall have furnished to you their opinion (a draft of such
opinion is attached as Annex II(d) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Principal Stockholder has been duly
incorporated and is validly existing as a company in good
standing under the laws of Mexico;
(ii) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Principal Stockholder; and
(iii) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company hereunder
and the compliance by the Company and the Principal
Stockholder with all of the provisions of this Agreement and
the International Underwriting Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which the Principal
Stockholder or any of its subsidiaries (other than the
Company) is a party or by which the Principal Stockholder or
any of its subsidiaries (other than the Company) is bound or
to which any of the property or assets of the Principal
Stockholder or any of its subsidiaries (other than the
Company) is subject; nor will such action result in any
violation of the provisions of the charter or by-laws of the
Principal Stockholder or any statute or order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Principal Stockholder or any of its
subsidiaries (other than the Company) or any of their
properties.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside of Mexico.
(f) Xxxxx, Xxxxx & Xxxxx, Illinois counsel for the Company,
shall have furnished to you their opinion (a draft of such opinion is
attached as Annex II(e) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that the Merger was
duly authorized by all necessary corporate and stockholder action on
the part of the Predecessor Company and complied with all applicable
provisions of the IBCA.
22
23
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction outside the State
of Illinois;
(g) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, PricewaterhouseCoopers LLP shall have furnished
to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex II(a) hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex II(b)
hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex II(c)
hereto);
(h) On the date of the Prospectus at a time prior to the
execution of this Agreement, Seonjin Accounting Corporation shall have
furnished to you a letter, dated the date of delivery thereof, in form
and substance satisfactory to you, to the effect set forth in Annex
II(d) hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex II(e) hereto;
(i) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(j) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock;
(k) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or on
Nasdaq; (ii) a suspension or material limitation in trading in the
Company's securities on Nasdaq; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York
State authorities; or
23
24
(iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this clause (iv)
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(l) The Shares to be sold at such Time of Delivery shall have
been duly listed, subject to notice of issuance, on Nasdaq;
(m) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each of the directors and
executive officers of the Company, Asesorias Administrativas Moderna,
S.A. de C.V. and the stockholders of the Company listed on Schedule II
hereto, substantially to the effect set forth in subsection 7(e) hereof
in form and substance satisfactory to you;
(n) The Company shall have complied with the provisions of
Section 7(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
(o) The Company shall have furnished or caused to be furnished
to you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its obligations hereunder
to be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (i) of this Section 10 and as to such
other matters as you may reasonably request; and
(p) The Principal Stockholder shall have furnished or caused
to be furnished to you at such Time of Delivery certificates of
officers of the Principal Stockholder satisfactory to you as to the
accuracy of the representations and warranties of the Principal
Stockholder herein at and as of such Time of Delivery, as to the
performance by the Principal Stockholder of all of its obligations
hereunder to be performed at or prior to such Time of Delivery and as
to such other matters as you may reasonably request.
11. (a) The Company and the Principal Stockholder, jointly and
severally, will indemnify and hold harmless each Underwriter and the
Independent Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or the
Independent Underwriter, as the case may be, may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
or the Independent Underwriter, as the case may be, for any legal or
other expenses reasonably in-
24
25
curred by such Underwriter or the Independent Underwriter, as the case
may be, in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the
Company and the Principal Stockholder shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through
Xxxxxxx, Sachs & Co. or the Independent Underwriter expressly for use
therein or constitute a reference to the Independent Underwriter
consented to by it pursuant to Section 5(f) hereof.
(b) Each Underwriter will indemnify and hold harmless the
Company, the Principal Stockholder and the Independent Underwriter, as
the case may be, against any losses, claims, damages or liabilities to
which the Company, the Principal Stockholder or the Independent
Underwriter, as the case may be, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx &
Co. expressly for use therein; and will reimburse the Company, the
Principal Stockholder and the Independent Underwriter, as the case may
be, for any legal or other expenses reasonably incurred by the Company,
the Principal Stockholder or the Independent Underwriter, as the case
may be, in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) The Independent Underwriter will indemnify and hold
harmless the Company, the Principal Stockholder and each Underwriter
against any losses, claims, damages or liabilities to which the
Company, the Principal Stockholder or such Underwriter, as the case may
be, may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by the
Independent Underwriter expressly for use therein or constitutes
25
26
a reference to the Independent Underwriter consented to by it pursuant
to Section 5(f) hereof; and will reimburse the Company, the Principal
Stockholder or each Underwriter, as the case may be, for any legal or
other expenses reasonably incurred by the Company, the Principal
Stockholder or each Underwriter, as the case may be, in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 11 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company, the Principal Stockholder, the Underwriters and the
Independent Underwriter from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company,
the Principal Stockholder, the Underwriters and the Independent
Under-
26
27
a reference to the Independent Underwriter consented to by it pursuant
to Section 5(f) hereof; and will reimburse the Company, the Principal
Stockholder or each Underwriter, as the case may be, for any legal or
other expenses reasonably incurred by the Company, the Principal
Stockholder or each Underwriter, as the case may be, in connection with
investigating or defending any such action or claim as such expenses
are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 11 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company, the Principal Stockholder, the Underwriters and the
Independent Underwriter from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (d) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company,
the Principal Stockholder, the Underwriters and the Independent
Underwriter in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Principal Stockholder, the Underwriters and the Independent Under-
26
28
writer in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Principal Stockholder, the Underwriters and the Independent Under-
writer shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Shares (before deducting expenses)
received by the Company in the offering, the total underwriting
discounts and commissions payable to the Underwriters with respect to
the Shares purchased under this Agreement as set forth in the table on
the cover page of the Prospectus and the fee payable to the Independent
Underwriter pursuant to the first sentence of Section 5(e) hereof,
respectively, bear to the sum of the total proceeds from the sale of
the Shares (before deducting expenses) in the offering and the fee
payable to the Independent Underwriter pursuant to the first sentence
of Section 5(e) hereof. 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
and the Principal Stockholder on the one hand or either the
Underwriters or the Independent Underwriter on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, the Principal Stockholder, the Underwriters and the
Independent Underwriter agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro
rata allocation (even if the Underwriters and the Independent
Underwriter were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (e), no Underwriter
nor the Independent Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to
the public and the Independent Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by the Underwriters and distributed to
the public were offered to the public, exceeds the amount of any
damages which such Underwriter or the Independent Underwriter, as the
case may be, has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are
several in proportion to their respective underwriting obligations and
not joint.
(f) The obligations of the Company and the Principal
Stockholder under this Section 11 shall be in addition to any liability
which the Company and the Principal Stockholder may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter or the Independent Underwriter within
the meaning of the Act; the obligations of the Underwriters under
27
29
this Section 11 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company or the Independent
Underwriter within the meaning of the Act; and the obligations of the
Independent Underwriter under this Section 11 shall be in addition to
any liability which the Independent Underwriter may otherwise have and
shall extend, upon the same terms and conditions to each officer and
director of the Company and to each person, if any, who controls the
Company or any Underwriters within the meaning of the Act.
(g) Anything herein to the contrary notwithstanding, until two
business days after a claim for indemnification or contribution
pursuant to this Section 11 is made to the Company by any indemnified
party AND SUCH CLAIM IS NOT PAID, no claim shall be made to the
Principal Stockholder with regard to the subject of such claim.
(h) In no event shall the aggregate of (i) the amounts of any
obligations for indemnification or contribution paid by the Principal
Stockholder to any indemnified party pursuant to this Section 11 or
Section 10 of the International Underwriting Agreement and (ii) the
amounts paid by the Principal Stockholder to any Underwriter, any
International Underwriter or the Independent Underwriter due to a
breach of any representation or warranty herein or in the International
Underwriting Agreement other than those contained in subsection (a),
(b), (c) and (d) of Section 2 hereof or subsection (a), (b), (c) and
(d) of Section 2 of the International Underwriting Agreement, as the
case may be, exceed $40,000,000.
12. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time
of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Shares on the terms contained
herein. If within forty-eight hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then
the Company shall be entitled to a further period of forty-eight hours
within which to procure another party or other parties satisfactory to
you to purchase such Shares on such terms. In the event that, within
the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies
you that it has so arranged for the purchase of such Shares, you or the
Company shall have the right to postpone such Time of Delivery for a
period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains
28
30
unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company
shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Shares which such Underwriter agreed to purchase hereunder)
of the Shares of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh
of the aggregate number of all the Shares to be purchased at such Time
of Delivery, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell
the Optional Shares) shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Independent
Underwriter or the Company or the Principal Stockholder, except for the
expenses to be borne by the Company and the Underwriters as provided in
the second sentence of Section 5(e) hereof and in Section 9 hereof and
the indemnity and contribution agreements in Section 11 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
13. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Principal Stockholder, the several
Underwriters and the Independent Underwriter, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
the Independent Underwriter or any controlling person of any Underwriter or the
Independent Underwriter or the Company or the Principal Stockholder, or any
officer or director or controlling person of the Company or the Principal
Stockholder, and shall survive delivery of and payment for the Shares.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 11 hereof, the
representations and warranties in subsections (b) and (c) of Section 1 hereof
and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the
Company pursuant to Section 10 hereof, insofar as they may constitute a basis
for indemnification for liabilities (other than payment by the Company or the
Principal Stockholder of expenses incurred or paid in the successful defense of
any action, suit or proceeding) arising under the Act, shall not extend to the
extent of any interest therein of a controlling person or partner of an
Underwriter who is a director, officer or controlling person of the Company when
the Registration Statement has become effective, except in each case to the
extent that an interest of such character shall have been determined by a court
of appropriate jurisdiction as not against public policy as expressed in the
Act. Unless in the opinion
29
31
of counsel for the Company and the Principal Stockholder the matter has been
settled by controlling precedent, the Company and the Principal Stockholder
will, if a claim for such indemnification is asserted, submit to a court of
appropriate jurisdiction the question of whether such interest is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
14. If this Agreement shall be terminated pursuant to Section 12
hereof, the Company and the Principal Stockholder shall not then be under any
liability to any Underwriter or the Independent Underwriter except as provided
in the second sentence of Section 5(e) hereof and Sections 9 and 11 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through
you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company shall then be under no further liability to any Underwriter or
the Independent Underwriter in respect of the Shares not so delivered except as
provided in the second sentence of Section 5(e) hereof and Sections 9 and 11
hereof.
15. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters or the Independent Underwriter shall be
delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of Xxxxxxx, Sachs & Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, (facsimile: [ ]), Attention: Registration Department; if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Xxxxxx Xxxxxx; and if to the Principal Stockholder shall
be delivered or sent by mail, telex or facsimile transmission to it at its
office at Ave. Batallon de San Xxxxxxxx No. 111, Cuarto piso, Col. Xxxxx Oriente
C.D. 66269, San Xxxxx Xxxxx Xxxxxx, X.X. Mexico (facsimile: 528-399-5629),
Attention: Xxxx Xxxx Xxxxxxxx; provided, however, that any notice to an
Underwriter pursuant to Section 11(d) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company and the Principal Stockholder by you
upon request. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. Copies of notices given to the Company
and the Principal Stockholder shall be delivered or sent by mail, telex or
facsimile transmission to Milbank, Tweed, Xxxxxx & XxXxxx LLP, 0 Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (facsimile: 212-530-5219), Attention:
Xxxxxx X. Xxxxxxx, Esq.
16. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Independent Underwriter, the Principal
Stockholder, the Company and, to the extent provided in Sections 11 and 13
hereof, the officers and directors of the Company and each person who controls
the Company, the Independent Underwriter or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
30
32
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
19. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
31
33
If the foregoing is in accordance with your understanding, please sign
and return to us eleven counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters,
the Independent Underwriter, the Company and the Principal Stockholder. It is
understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters (U.S. Version), the form of which shall be submitted to the Company
for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
Seminis, Inc.
By:
----------------------------------
Name:
Title:
Xxxxx, X.X. de C.V.
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxx Securities Inc.
ING Baring Xxxxxx Xxxx LLC
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
VECTORMEX Incorporated
By:
------------------------------------------
(Xxxxxxx, Xxxxx & Co.)
Xxxxxxx, Sachs & Co.,
as Independent Underwriter
By:
------------------------------------------
(Xxxxxxx, Xxxxx & Co.)
32
34
SCHEDULE I
Number of Optional
Shares to be
Total Number of Firm Purchased if Maximum
Underwriter Shares to be Purchased Option Exercised
----------- ---------------------- --------------------
Xxxxxxx, Sachs & Co............................................
X.X. Xxxxxx Securities Inc.....................................
ING Baring Xxxxxx Xxxx LLC.....................................
Xxxxxx Xxxxxxx & Co. Incorporated..............................
Xxxxxxx Xxxxx Barney Inc.......................................
VECTORMEX Incorporated.........................................
---------------------- --------------------
Total........................................ 11,000,000 1,650,000
====================== ====================
35
SCHEDULE II
