Xxxxxx Financial, Inc.
Class A Common Stock
(par value $0.25 per share)
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Underwriting Agreement
(U.S. Version)
----------------------
April .., 1998
Xxxxxxx, Sachs & Co.,
X.X. Xxxxxx Securities Inc.,
BT Alex. Xxxxx Incorporated,
Xxxxxx Brothers Inc.,
Xxxxxxx, Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Xxxxxx Financial, Inc., a Delaware corporation (the "Company") and a
wholly-owned subsidiary of Fuji America Holdings, Inc., a Delaware corporation
("FAHI"), which in turn is a wholly-owned subsidiary of The Fuji Bank, Limited,
a Japanese banking corporation ("Fuji Bank"), 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 30,150,000 shares (the
"Firm Shares") and, at the election of the Underwriters, up to 4,522,500
additional shares (the "Optional Shares") of Class A Common Stock, par value
$0.25 per share ("Stock"), of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof
being collectively called the "Shares").
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 3,852,500
shares of Stock (the "International Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters outside the United
States (the "International Underwriters"), for whom Xxxxxxx Sachs International,
X.X. Xxxxxx Securities Ltd., BT Alex. Xxxxx International, A Division of Bankers
Trust International PLC, Xxxxxx Brothers International (Europe) and Xxxxxxx
Xxxxx International are 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. Except as used in Sections 2, 3, 4,
9 and 11 herein, and except as the context may otherwise require, references
hereinafter to the Shares shall include all the shares of Stock which may be
sold pursuant to 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.
1. (a) Each of the Company and Fuji Bank represents and warrants to, and
agrees with, each of the Underwriters that:
(i) A registration statement on Form S-2 (File No. 333-46915) (as
amended by any pre-effective amendments, the "Initial Registration
Statement") in respect of the Shares has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration Statement
and any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto but including all
documents incorporated by reference in the prospectus contained therein, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which becomes effective upon filing, no other
document with respect to the Initial Registration Statement or any document
incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including (i) the information contained in the form of
final prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule
430A under the Act to be part of the Initial Registration Statement at the
time it was declared effective and (ii) the documents incorporated by
reference in the prospectus contained in the Initial Registration Statement
at the time [such part of] the Initial Registration Statement became
effective or the Rule 462(b) Registration Statement, if any, becomes
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, [becomes] effective, are hereinafter
collectively called the "Registration Statement"; such final prospectus, in
the form first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus"; and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-2
under the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be);
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus distributed by the Underwriters, 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
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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;
(iii) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of the
Prospectus or any amendment or supplement thereto as to the Prospectus or
any such amendment or supplement, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Xxxxxxx,
Sachs & Co. expressly for use therein;
(v) The financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the financial position, results of operations and changes in financial
position of the corporations to which they relate, as of the respective
dates of, or for the respective periods indicated, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved;
(vi) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any 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, which loss or interference
is material to the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as contemplated or set
forth in the Registration Statement and the Prospectus, (i) there has not
been any material adverse change in the financial condition, earnings,
business or properties of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course of
business, (ii) neither the Company nor any of its subsidiaries have entered
into any transaction not in the ordinary course of business material to the
Company and its subsidiaries taken as a whole and (iii) neither the Company
nor any of its subsidiaries have incurred any liabilities or obligations,
direct or contingent, not in the ordinary course of business which are
material in relation to the Company and its subsidiaries taken as a whole.
(vii) Each of the Company and its subsidiaries has good and
marketable title in fee simple to all real property, and good and
marketable title to all personal property, owned by it and material to the
Company and its subsidiaries, taken as a whole, in each case free and clear
of all liens,
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encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company or any of its subsidiaries and material to the
Company and its subsidiaries, taken as a whole, are held by it 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 or any of its subsidiaries;
(viii) The Company and each of its subsidiaries (other than
subsidiaries which, considered in the aggregate as a single subsidiary,
would not constitute a "significant subsidiary" as defined in Rule 1-02(v)
of Regulation S-X promulgated by the Commission) have been duly
incorporated and are validly existing as corporations in good standing
under the laws of the respective jurisdictions of their incorporation; each
of the Company and such subsidiaries is duly licensed and duly qualified to
do business as a foreign corporation and is in good standing in all the
jurisdictions in which it owns or leases substantial property or in which
the conduct of its business requires such qualification, except where the
failure to be so qualified, considering all such cases in the aggregate,
would not have a material adverse effect on the business, properties,
financial position or results of operations of the Company and its
subsidiaries, taken as a whole; and each of the Company and such
subsidiaries has all necessary corporate power and authority to own its
properties and conduct its business as described in the Prospectus; all the
outstanding shares of capital stock of each such subsidiary have been duly
and validly authorized and issued and are fully paid and nonassessable and
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest and any
other security interests, claims, liens or encumbrances (except for
directors' qualifying shares and except as disclosed in the Prospectus);
and no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body that has
not been obtained is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(ix) 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 such capital stock
contained in the Prospectus;
(x) The Shares have been duly authorized and, when issued and
delivered against payment therefor as provided herein and in the
International Underwriting Agreement, will be validly issued and fully paid
and non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(xi) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(xii) The Company has all requisite power and authority (corporate
and other) to execute, deliver and perform its obligations under this
Agreement and the International Underwriting Agreement, to consummate the
transactions contemplated hereby and thereby, including without limitation,
the power and authority to issue, sell and deliver the Shares, as provided
herein and therein, and to comply with the terms of this Agreement and the
International Underwriting Agreement;
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(xiii) The issue, sale and delivery of the Shares by the Company
hereunder and under the International Underwriting Agreement, the
compliance by the Company with all of the provisions of this Agreement and
the International Underwriting Agreement, the consummation of the
transactions herein and therein contemplated and the application of the
proceeds thereof as contemplated in the Prospectus (collectively, the
"Transactions") will not result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, except for
such breaches, violations or defaults which, individually or in the
aggregate, would not have a material adverse effect on the Transactions or
on the business, properties, financial position or results of operations of
the Company and its subsidiaries taken as a whole and would not prevent the
Company from performing its obligations hereunder or under the
International Underwriting Agreement, nor will such action result in any
violation of the provisions of the Amended and Restated Certificate of
Incorporation, By-laws or other organizational documents of the Company or
any of its subsidiaries or any statute or, to the knowledge of the Company,
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 respective 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 and the
application of the proceeds thereof as contemplated in the Prospectus,
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;
(xiv) Each of the Company and its subsidiaries has complied in all
respects with all laws, regulations and orders applicable to it or its
businesses the violation of which, individually or in the aggregate, would
have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(xv) Neither the Company nor any of its subsidiaries is in
violation of its Amended and Restated Certificate of Incorporation, By-laws
or other organizational documents, or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, except for such violations or defaults
which, individually or in the aggregate, would not have a material adverse
effect on the business, properties, financial position or results of
operations of the Company and its subsidiaries, taken as a whole;
(xvi) Except as would not, individually or in the aggregate, have a
material adverse effect on the Company and its subsidiaries taken as a
whole, (i) each of the Company and its subsidiaries has all certificates,
consents, exemptions, orders, permits, licenses, authorizations or other
approvals (each, an "Authorization") of and from, and has made all
declarations and filings with, all Federal, state, local and foreign
governmental authorities, all self-regulatory organizations and all courts
and other tribunals, necessary or required to engage in the business
currently conducted by it in the manner described in the Prospectus; (ii)
all Authorizations required pursuant to clause (i) of this paragraph are
valid and in full force and effect; and (iii) each of the Company and its
subsidiaries is in compliance in all material respects with the terms and
conditions of all such Authorizations and with
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the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto;
(xvii) The statements set forth in the Prospectus [under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock,] under the caption "Certain
United States Tax Consequences to Non-United States Holders" in the
prospectus relating to the International Shares, and under the caption
"Certain Relationships and Related Transactions", insofar as they purport
to describe the provisions of the laws and documents referred to therein,
are accurate and complete in all material respects;
(xviii) 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 reasonably be
expected, individually or in the aggregate, to have a material adverse
effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(xix) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(xx) There are no holders of securities of the Company or any of
its subsidiaries who, by reason of the execution of this Agreement or the
International Underwriting Agreement by the Company or the consummation of
the transactions contemplated hereby and thereby, have the right to request
or demand the Company or any of its subsidiaries to register under the Act
or analogous foreign laws and regulations any securities held by them;
(xxi) The Amended and Restated Keep Well Agreement, dated as of
April __, 1998 (the "Keep Well Agreement"), between the Company and Fuji
Bank has been duly authorized, executed and delivered by[, and constitutes
the valid and binding obligation of,] the Company enforceable against it in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar laws
affecting the rights and remedies of creditors generally and the effects of
general principles of equity, whether applied by a court of law or equity;
and
(xxii) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(b) Fuji Bank represents and warrants to, and agrees with, each
of the Underwriters that:
(i) Fuji Bank has been duly incorporated and is validly existing
as a banking corporation under the laws of Japan, 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;
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(ii) FAHI has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, 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;
(iii) Fuji Bank has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and the
International Underwriting Agreement, to consummate the transactions
contemplated hereby and thereby, and to comply with the terms of this
Agreement and the International Underwriting Agreement;
(iv) The issuance, sale and delivery of the Shares by the Company
hereunder and under the International Underwriting Agreement, the
compliance by Fuji Bank and the Company with all of the provisions of this
Agreement and the International Underwriting Agreement, the consummation of
the transactions herein and therein contemplated and the application of the
proceeds thereof as contemplated in the Prospectus will not result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Fuji Bank or any of its subsidiaries
is a party or by which Fuji Bank or any of its subsidiaries is bound or to
which any of the property or assets of Fuji Bank or any of its subsidiaries
is subject, except for such breaches, violations or defaults which,
individually or in the aggregate, would not have a material adverse effect
on the Transactions or on the business, properties, financial position or
results of operations of the Company and its subsidiaries taken as a whole
and would not prevent Fuji Bank or the Company from performing its
obligations hereunder or under the International Underwriting Agreement,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation, By-laws or other organizational documents of
Fuji Bank or any of its subsidiaries or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over Fuji Bank 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 Fuji Bank and 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;
(v) All of the issued shares of capital stock of FAHI have been
duly authorized and validly issued and are fully paid and non-assessable;
all of the issued shares of capital stock of FAHI are owned directly by
Fuji Bank, free and clear of all liens, encumbrances, equities or claims;
and all issued shares of Class B Common Stock, par value $0.25 per share
(the "Class B Common Stock"), of the Company are owned directly by FAHI,
free and clear of all liens, encumbrances, equities or claims.
(vi) Each of this Agreement and the International Underwriting
Agreement has been duly authorized, executed and delivered by Fuji Bank;
and
(vii) The Keep Well Agreement has been duly authorized, executed
and delivered by [and constitutes the valid and binding obligation of,]
Fuji Bank enforceable against it in accordance with its terms, subject to
the effects of bankruptcy, insolvency, reorganization, receivership,
moratorium
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and other similar laws affecting the rights and remedies of creditors
generally and the effects of general principles of equity, whether applied
by a court of law or equity.
2. 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 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 4,522,500 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the 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 4
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.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (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, Sachs & 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, Xxxxx & 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 an account specified by the Company. 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 ______,
1998 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 City 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 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(i) hereof, will be delivered at the offices of Xxxxxx
Xxxxxx
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& Zavis, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Closing
Location"), and the Shares will be delivered at the Designated Office against
payment therefor, all at such Time of Delivery. A meeting will be held at the
Closing Location at 2:00 p.m., New York City time, on the 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 or their representatives.
5. (a) The Company agrees with each of the Underwriters:
(i) 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 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 the 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 the 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 the
Prospectus or suspending any such qualification, promptly to use its
reasonable best efforts to obtain the withdrawal of such order;
(ii) 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 to the extent necessary to permit the commencement and
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of process
in any jurisdiction;
(iii) Prior to 12:00 noon, New York City time, on the New York
Business Day (as defined below) 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
9
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;
(iv) 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), a consolidated earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations thereunder (including, at the option
of the Company, Rule 158);
(v) (i) After the end of each fiscal year, to furnish to its
stockholders an annual report (including a consolidated balance sheet and
consolidated statements of income, stockholders' equity and cash flows of
the Company and its subsidiaries certified by independent public
accountants) no later than required by the rules and regulations of the
Commission or any national securities exchange on which any securities of
the Company may be listed, (ii) after the end of each of the first three
quarters of each fiscal year, if so required by the rules and regulations
of the Commission or any national securities exchange on which any
securities of the Company may be listed (beginning with the fiscal quarter
ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail, no later than required
by such rules and regulations; and (iii) after the end of the first three
fiscal quarters of each fiscal year, upon the request of any holder of
Stock, a quarterly report satisfying the requirements of Form 10-Q for such
fiscal quarter, in the form filed by the Company with the Commission;
(vi) 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 furnished
generally to the stockholders of the Company or to 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);
(vii) 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";
(viii) To use its best efforts to list, subject to notice of issuance,
the Shares on the Exchange; and
(ix) If the Company elects to rely upon Rule 462(b), to file a Rule
462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement,
and at the time of filing either to pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act.
(b) Each of the Company and Fuji Bank, jointly and severally, 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 directly or indirectly offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder and under the International
Underwriting Agreement, any shares
10
of Stock or Class B Common Stock or any other securities of the Company that are
substantially similar to the Shares or the Class B Common Stock, including but
not limited to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Stock or Class B Common Stock or any such
substantially similar securities (other than pursuant to employee stock option
plans existing, or upon the conversion or exchange of convertible or
exchangeable securities outstanding, on the date of this Agreement), or enter
into any swap, option, future, forward or other agreement that transfers, in
whole or in part, the economic consequence of ownership of Stock or any
securities substantially similar to the Shares, without the prior written
consent of Xxxxxxx, Xxxxx & Co.
6. The Company covenants and agrees with the several Underwriters that it
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of its 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, closing documents (including compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Shares; (iii) all expenses, if any, in connection with the
qualification of the Shares for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky survey, if any; (iv) all fees and expenses in connection with
listing the Shares on the Exchange; (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 NASD 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
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 6. It is understood, however, that,
except as provided in this Section 6, and Sections 7 and 11 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. Fuji Bank
will pay or cause to be paid its own respective fees and expenses and those of
FAHI (including the fees, disbursements and expenses of their respective
counsel) in connection with the registration, offering and sale of the Shares.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
each of the Company and Fuji Bank herein are, at and as of such Time of
Delivery, true and correct, the condition that each of the Company and Fuji Bank
shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have furnished
to you such opinion or opinions, dated such Time of Delivery, with respect to
such matters as you may reasonably request, and
11
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) (i) Xxxxxx Xxxxxx & Zavis, counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(2) 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 been duly authorized and validly issued and are fully
paid and nonassessable; and the Shares conform to the description of
the Stock contained in the Prospectus;
(3) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of the State of Illinois;
(4) Such counsel shall confirm that, based on representations
made in an Officer's Certificate from the Company and a review of such
counsel's litigation docket, 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 seek to affect the enforceability of this Agreement or the
International Underwriting Agreement;
(5) The Company has the requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement
and the International Underwriting Agreement and to consummate the
transactions contemplated hereby and thereby, including without
limitation the requisite power and authority to issue, sell and
deliver the Shares as provided herein and therein;
(6) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(7) The issue, sale and delivery by the Company 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 result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument 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, except for such breaches, violations or defaults which,
individually or in the aggregate, would not have a material adverse
effect on the Transactions or on the business, properties, financial
position or results of operations of the Company and its subsidiaries
taken as a whole and would not prevent the Company from performing its
obligations hereunder or under the International Underwriting
Agreement, nor will such action result in any violation of the
provisions of the Amended and Restated Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
12
known to such counsel and to which the Company is subject, of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties,
provided, however, that except as specifically set forth in their
opinion, such counsel express no belief with respect to compliance by
the Company in the Prospectus with the disclosure requirements of the
Federal securities laws;
(8) No consent, approval, authorization, order, registration,
qualification, filing or license 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;
(9) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
a summary of the terms of the Stock, under the caption "Certain United
States Tax Consequences to Non-United States Holders" in the
prospectus relating to the International Shares, and under the caption
"Certain Relationships and Related Transactions", insofar as they
purport to describe the provisions of the laws and documents referred
to therein, are accurate and complete in all material respects;
(10) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(11) The Keep Well Agreement has been duly authorized, executed
and delivered by [, and constitutes the valid and binding obligation
of,] the Company and is enforceable against the Company in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws
affecting the rights and remedies of creditors generally and the
effects of general principles of equity, whether applied by a court of
law or equity; and
(12) The documents incorporated by reference in the Prospectus
(other than the financial statements, related schedules and notes and
other financial data therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder; and
they have no reason to believe that any of such documents, when such
documents were so filed, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
(13) In addition, such counsel shall confirm that such counsel
have reviewed the Registration Statement and the Prospectus and
participated in conferences with officers and representatives of the
Company, the Company's independent public accountants and you and your
counsel, at which the contents of the Registration Statement and the
Prospectus were discussed, and that 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, related schedules and notes and other financial data
13
therein, as to which such counsel need express no belief) 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 (9) of this
Section 7(c)(i); without assuming responsibility for the accuracy,
completeness or fairness of such statements except as specified in the
opinion in subsection (9) of this Section 7(c)(i), 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, related
statements and related schedules and notes and other financial data
therein, as to which such counsel need express no belief) 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, related
schedules and notes and other financial data therein, as to which such
counsel need express no belief) 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, related schedules
and notes and other financial data therein, as to which such counsel
need express no belief) 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 incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the State
of Illinois, the corporate laws of the State of Delaware, and the Federal
laws of the United States.
(ii) Xxxx X. Xxxxxxxx, Associate General Counsel of the Company and
FAHI, shall have furnished to you his written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(1) The Company and each of its subsidiaries (other than
subsidiaries which, considered in the aggregate as a single
subsidiary, would not constitute a "significant subsidiary" as defined
in Rule 1-02(v) of Regulation S-X promulgated by the Commission) have
been duly incorporated and are validly existing as corporations in
good standing under the laws of the respective jurisdictions of their
incorporation; each of the Company and such subsidiaries is duly
licensed and duly qualified to do business as a foreign corporation
and is in good standing in all the jurisdictions in which it owns or
leases substantial property or in which the conduct of its business
requires such qualification, except where the failure to be so
qualified, considering all such cases in the aggregate, would not have
a material adverse effect on the business, properties, financial
position or results of operations of the Company and its subsidiaries,
taken as a whole; and each of the Company and such subsidiaries has
the requisite corporate power and authority to own its properties and
14
conduct its business as described in the Prospectus; all the
outstanding shares of capital stock of each such subsidiary have been
duly authorized and validly issued and are fully paid and
nonassessable and except as disclosed in the Prospectus, are owned by
the Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest and any other security
interests, claims, liens or encumbrances; and no consent, approval,
authorization, order, registration or qualification, filing or license
of or with any court or governmental agency or body that has not been
obtained 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;
(2) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries would individually or in the aggregate be reasonably
likely to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole and,
to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(3) The issue, sale and delivery by the Company 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 result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or FAHI or any of their respective subsidiaries is a party or by which
the Company or FAHI or any of their respective subsidiaries is bound
or to which any of the property or assets of the Company or FAHI or
any of their respective subsidiaries is subject, except for such
breaches, violations or defaults which, individually or in the
aggregate, would not have a material adverse effect on the
Transactions or on the business, properties, financial position or
results of operations of the Company and its subsidiaries taken as a
whole and would not prevent the Company from performing its
obligations hereunder or under the International Underwriting
Agreement, nor will such action result in any violation of the
provisions of the Amended and Restated Certificate of Incorporation or
By-laws of the Company or FAHI or any statute or any order, rule or
regulation known to such counsel and to which the Company or FAHI is
subject of any court or governmental agency or body having
jurisdiction over the Company or FAHI or any of their respective
subsidiaries or any of their properties, provided, however, that
except as specifically set forth in his opinion, such counsel
expresses no belief with respect to the compliance by the Company in
the Prospectus with the disclosure requirements of the Federal
securities laws;
(4) Neither the Company nor any of its subsidiaries nor FAHI is
in violation of its Certificate of Incorporation, By-laws or other
organizational documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other
15
agreement or instrument to which it is a party or by which it or any
of its properties may be bound, except for such breaches or violations
or defaults which, individually or in the aggregate, would not have a
material adverse effect on the Transactions or on the business,
properties, financial position or results of operations of the Company
and its subsidiaries taken as a whole and would not prevent the
Company from performing its obligations hereunder or under the
International Underwriting Agreement;
(5) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
a summary of the terms of the Stock and under the caption "Certain
Relationships and Related Transactions", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate and complete in all material respects;
(6) The documents incorporated by reference in the Prospectus
(other than the financial statements, related schedules and the note
and other financial data therein, as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents, when such documents were so filed, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(7) In addition, such counsel shall confirm that such counsel has
reviewed the Registration Statement and the Prospectus and
participated in conferences with officers and representatives of the
Company, the Company's independent public accountants and you and your
counsel, at which the contents of the Registration Statement and the
Prospectus were discussed, and that 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, related schedules and the notes and other financial data
therein, as to which such counsel need express no belief) complied as
to form in all material respects with the requirements of the Act and
the rules and regulations thereunder, although such counsel does 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
(6) of this Section 7(c)(ii), without assuming responsibility for the
accuracy, completeness or fairness of such statements (except for
those referred to in the opinion in subsection (6) of this Section
7(c)(ii), such counsel has 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, related schedules and
the notes and other financial data therein, as to which such counsel
need express no belief) 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 belief) 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
16
financial statements, related schedules and notes and other financial
data therein, as to which such counsel need express no belief)
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
she does 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 incorporated by reference into the
Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference or
described as required.
In giving such opinion, such counsel may state that such opinion is
limited to the laws of the State of Illinois, the corporate laws of the
State of Delaware, and the Federal laws of the United States, except that
such counsel expresses no opinion as to the securities or Blue Sky laws of
any state of the United States or the securities laws of any foreign
jurisdiction.
(iii) Tsunematsu Yonase & Sekine, Japanese counsel to Fuji Bank,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(1) Fuji Bank has been duly incorporated and is validly existing
as a banking corporation under the laws of Japan;
(2) Fuji Bank has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and
the International Underwriting Agreement and to consummate the
transactions contemplated hereby and thereby;
(3) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by Fuji Bank;
(4) The issuance, sale and delivery by the Company of the Shares
being delivered at such Time of Delivery, the consummation by Fuji
Bank of the transactions herein and therein contemplated and in the
manner herein and therein contemplated and compliance by Fuji Bank
with the terms of this Agreement and the International Underwriting
Agreement do not and will not violate, conflict with, or result in a
breach of, any of the terms or provisions of, or constitute a default
under, the organizational documents of Fuji Bank or any indenture or
other agreement or instrument known to such counsel to which Fuji Bank
is a party or by which Fuji Bank is bound or any law, rule,
regulation, judgment or order known to such counsel to be applicable
to Fuji Bank of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over Fuji Bank or
any of its properties;
(5) No consent, approval, authorization, order, registration,
qualification, filing or license of or with any court or governmental
agency or body is required for the issue and sale of the Shares or
the consummation by each of the Company and Fuji Bank of the
transactions contemplated by this Agreement and the International
Underwriting Agreement; and
(6) The Keep Well Agreement has been duly authorized, executed
and delivered by Fuji Bank; the choice of New York law to govern the
Keep Well Agreement would be
17
recognized under Japanese law as a valid choice of law; and the Keep
Well Agreement would not violate any Japanese law or public policy
known to such counsel.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of Japan.
(iv) Shearman & Sterling, special United States counsel to Fuji Bank,
shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that no
consent, approval, authorization, order, registration, qualification,
filing or license of any United States federal or state bank regulatory
body or authority is required for the issue and sale of the Shares or the
consummation by each of the Company and Fuji Bank of the transactions
contemplated by this Agreement and the International Underwriting
Agreement;
(d) 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 which includes or is deemed to
include or incorporates by reference a prospectus filed subsequent to the date
of this Agreement and also at each Time of Delivery, Xxxxxx Xxxxxxxx LLP shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, which loss or interference is material to the Company and its
subsidiaries taken as a whole, 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, short-term debt 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 of the Underwriters 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;
(f) 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 [Xxxxx'x
Investors Service, Inc., Standard & Poor's Ratings Group or Duff & Xxxxxx,
Inc.,] 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;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York [or
Illinois] State authorities; or (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;
18
(h) The Shares to be sold at such Time of Delivery shall have been duly
approved for listing, subject to notice of issuance, on the Exchange;
(i) Each of the Company, Fuji Bank and FAHI shall have furnished or caused
to be furnished to you at such Time of Delivery certificates of officers of each
of the Company, Fuji Bank and FAHI satisfactory to you as to the accuracy of the
representations and warranties of each of the Company and Fuji Bank herein at
and as of such Time of Delivery, as to the performance by each of the Company
and Fuji Bank of all of their respective obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (e) of this Section 7 and as to such other matters as you may reasonably
request.
(j) The Company shall have complied with the provisions of Section
5(a)(iii) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement.
8. (a) Each of the Company and Fuji Bank (each, a "Xxxxxx Party"), jointly
and severally, will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus distributed by the
Underwriters, 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 for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Xxxxxx Parties
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, distributed by the Underwriters, 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. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless each Xxxxxx Party
against any losses, claims, damages or liabilities to which such Xxxxxx Party
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 distributed by the Underwriters, 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 distributed by the
Underwriters, 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 such Xxxxxx Party for any legal or
other expenses reasonably incurred by such Xxxxxx Party in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) of this Section 8 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
19
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 such 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 such
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) of this Section 8 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 Xxxxxx Parties on the one hand and the Underwriters on
the other from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) of
this Section 8, 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
Xxxxxx Parties on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Xxxxxx Parties
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Shares purchased under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. 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 Xxxxxx
Parties on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Xxxxxx Parties and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). 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 (d) 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 (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the
20
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 (d) to contribute are several in
proportion to their respective underwriting obligations hereunder and not joint.
(e) The obligations of the Xxxxxx Parties under this Section 8 shall be in
addition to any liability which the Xxxxxx Parties may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls any Xxxxxx Party within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties reasonably 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 9 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) of this Section 9, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, then the
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) of this Section 9, 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) of this Section 9 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 Company, except for the expenses
to be borne by the Company, Fuji Bank and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
21
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and Fuji Bank, and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company or Fuji Bank, or any officer or director or controlling person of the
Company or Fuji Bank, and shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and Fuji Bank shall not then be under any liability to any
Underwriter except as provided in Sections 6 and 8 hereof; but if for any other
reason any Shares are not delivered by or on behalf of the Company as provided
herein, the Company and Fuji Bank will reimburse the Underwriters through you
for all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company and Fuji Bank shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Sachs & Co. on behalf of you as the
representatives of the Underwriters.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company or Fuji Bank shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company or Fuji Bank
(as the case may be) set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) 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 by you upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and Fuji Bank and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company or Fuji Bank
and each person who controls the Company or Fuji Bank or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business. As used herein, the term "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 City are generally
authorized or obligated by law or executive order to close.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
22
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
23
If the foregoing is in accordance with your understanding, please sign and
return to us seven counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and Fuji Bank. 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
furnished to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
Xxxxxx Financial, Inc.
By:....................................
Name:
Title:
The Fuji Bank, Limited
By:....................................
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
X.X. Xxxxxx Securities Inc.
BT Alex. Xxxxx Incorporated
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: ..................................
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
24
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
---------- --------------- ---------
Xxxxxxx, Xxxxx & Co.........................................................
X.X. Xxxxxx Securities Inc..................................................
BT Alex. Xxxxx Incorporated.................................................
Xxxxxx Brothers Inc.........................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated....................................................
[Names of other Underwriters]...............................................
Total.................................................................. --------------- ---------------
=============== ===============
25
SCHEDULE II
Principal Subsidiaries of the Company
Xxxxxx International Group, Inc.
Xxxxxx International Holdings, Inc.
Xxxxxx Holding France, S.A.
Factofrance Xxxxxx, X.X.
26
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been separately furnished to the representatives of the
Underwriters (the "Representatives") and are attached hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the
Representatives and are attached hereto; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and
1
its subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of officials
of the Company and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
2
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representatives
or in documents incorporated by reference in the Prospectus specified by
the Representatives, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
3
