6,700,000 Shares
XXXXX XXXXX INC.
Common Stock
UNDERWRITING AGREEMENT
February ___, 1998
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
XXXXX XXXXXX INC.
As representatives of the
several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxx Xxxxx Inc., a Delaware corporation (the "Company"),
proposes to issue and sell 6,700,000 shares of its common stock, $0.01 par
value per share (the "Firm Shares"), to the several underwriters named in
Schedule I hereto (the "Underwriters"). In addition, certain stockholders of
the Company named in Schedule II hereto (the "Selling Stockholders") propose to
sell to the Underwriters not more than an additional 1,005,000 shares of the
common stock of the Company, $0.01 par value per share (the "Additional
Shares"), in the amount set forth opposite each of such Selling Stockholder's
name in Schedule II hereto, if requested by the Underwriters as provided in
Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter
referred to collectively as the "Shares". The shares of common stock of the
Company to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the "Common Stock". The Company and the Selling
Stockholders are hereinafter sometimes referred to collectively as the
"Sellers."
The Company is concurrently executing and delivering to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ") an underwriting
agreement, dated of even date herewith (the "Debt Underwriting Agreement"),
with respect to the sale by the Company to DLJ of $80.0 million aggregate
principal amount of the Company's __% Senior Subordinated Notes due 2008 (the
"Notes").
SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The Company
has prepared and filed with the Securities and Exchange Commission (the
"Commission"), in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1, including a
prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Act, is hereinafter referred to as the "Registration
Statement"; and the prospectus in the form first used to confirm sales of
Shares is hereinafter referred to as the "Prospectus". If the Company has filed
or is required pursuant to the terms hereof to file a registration statement
pursuant to Rule 462(b) under the Act registering additional shares of Common
Stock (a "Rule 462(b) Registration Statement"), then, unless otherwise
specified, any reference herein to the term "Registration Statement" shall be
deemed to include such Rule 462(b) Registration Statement.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE; LOCK-UP
AGREEMENTS; QIU. On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to issue and sell, and each Underwriter agrees, severally and not jointly, to
purchase from the Company at a price per Share of $________ (the "Purchase
Price") the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Selling
Stockholders agree to sell the Additional Shares and the Underwriters shall
have the right to purchase, severally and not jointly, up to 1,005,000
Additional Shares from the Selling Stockholders at the Purchase Price.
Additional Shares may be purchased solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. The
Underwriters may exercise their right to purchase Additional Shares in whole or
in part from time to time by giving written notice thereof to the Attorneys (as
hereinafter defined) within 30 days after the date of this Agreement. You shall
give any such notice on behalf of the Underwriters and such notice shall
specify the aggregate number of Additional Shares to be purchased pursuant to
such exercise and the date for payment and delivery thereof, which date shall
be a business day (i) no earlier than two business days after such notice has
been given (and, in any event, no earlier than the Closing Date (as hereinafter
defined)) and (ii) no later than ten business days after such notice has been
given. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees
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to purchase from the Selling Stockholders the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) which bears the same proportion to the total number of Additional
Shares to be purchased from the Selling Stockholders as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I bears to
the total number of Firm Shares.
Each Seller hereby agrees not to (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other arrangement that transfers
all or a portion of the economic consequences associated with the ownership of
any Common Stock (regardless of whether any of the transactions described in
clause (i) or (ii) is to be settled by the delivery of Common Stock, or such
other securities, in cash or otherwise), except to the Underwriters pursuant to
this Agreement and the Custody Agreement, for a period of 180 days after the
date of the Prospectus without the prior written consent of DLJ.
Notwithstanding the foregoing, during such period (i) the Company may grant
stock options pursuant to the Company's existing stock option plans and (ii)
the Company may issue shares of Common Stock upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof. The
Company also agrees not to file any registration statement with respect to any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock for a period of 180 days after the date of the
Prospectus without the prior written consent of DLJ. The Company shall, prior
to or concurrently with the execution of this Agreement, deliver an agreement
executed by (i) each of the directors and officers of the Company and (ii) each
stockholder listed on Annex I hereto to the effect that such person will not,
during the period commencing on the date such person signs such agreement and
ending 180 days after the date of the Prospectus, without the prior written
consent of DLJ, (A) engage in any of the transactions described in the first
sentence of this paragraph or (B) make any demand for, or exercise any right
with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
The Company hereby confirms its engagement of Xxxxxxx, Xxxxx
& Co. ("GS&Co.") as, and GS&Co. hereby confirms its agreement with the Company
to render services as, a "qualified independent underwriter", within the
meaning of Section (b)(15) of Rule 2720 of the National Association of
Securities Dealers, Inc. (the "NASD") with respect to the offering and sale of
the Shares. GS&Co., solely in its capacity as the qualified independent
underwriter and not otherwise, is referred to herein as the "QIU". As
compensation for the services of the QIU hereunder, the Company agrees to pay
the QIU $10,000 on the Closing Date. The price at which the Shares will be sold
to the public shall not be higher than the maximum price recommended by the
QIU.
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SECTION 3. TERMS OF PUBLIC OFFERING. The Company is advised
by you that the Underwriters propose (i) to make a public offering of their
respective portions of the Shares as soon after the execution and delivery of
this Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
SECTION 4. DELIVERY AND PAYMENT. Delivery to the Underwriters
of and payment for the Firm Shares shall be made at 9:00 A.M., New York City
time, on February__, 1998 (the "Closing Date") at the offices of Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as
you shall designate. The Closing Date and the location of delivery of and
payment for the Firm Shares may be varied by agreement between you and the
Company.
Delivery to the Underwriters of and payment for any
Additional Shares to be purchased by the Underwriters shall be made at such
place as you shall designate at 9:00 A.M., New York City time, on the date
specified in the applicable exercise notice given by you pursuant to Section 2
(an "Option Closing Date"). Any such Option Closing Date and the location of
delivery of and payment for such Additional Shares may be varied by agreement
between you and the Company.
The Company authorizes DLJ to register the Shares in the name
of Cede & Co., a nominee of the Depositary Trust Company ("DTC"), or such other
name as DLJ shall determine prior to the Closing Date or an Option Closing
Date, as the case may be. On the Closing Date or the applicable Option Closing
Date, as the case may be, with any transfer taxes thereon duly paid by the
Company against payment to the Company by the several Underwriters of the
Purchase Price for the Shares in immediately available funds, the Company will
cause DTC to credit the Shares to the account of DLJ at DTC for the benefit of
the several Underwriters. Certificates representing the Shares shall be made
available to the Underwriters for inspection not later than 9:30 a.m., New York
City time, on the business day immediately preceding the Closing Date or any
Option Closing Date, as applicable.
SECTION 5. AGREEMENTS OF THE COMPANY. The Company agrees
with you:
(a) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Shares for offering or
sale in any jurisdiction, or the initiation of any proceeding for such
purposes, (iii) when any amendment to the Registration Statement becomes
effective, (iv) if the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, when the Rule 462(b)
Registration Statement has become effective and (v) of the happening of any
event during the period referred to in Section
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5(d) below which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which requires any additions
to or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Company will use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish to you four signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits, and to furnish to you and each Underwriter designated
by you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, without exhibits, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of
which shall be satisfactory to you, and to file the Prospectus in such form
with the Commission within the applicable period specified in Rule 424(b) under
the Act; during the period specified in Section 5(d) below, not to file any
further amendment to the Registration Statement and not to make any amendment
or supplement to the Prospectus of which you shall not previously have been
advised or to which you shall reasonably object after being so advised; and,
during such period, to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which may be necessary or advisable in connection
with the distribution of the Shares by you, and to use its best efforts to
cause any such amendment to the Registration Statement to become promptly
effective.
(d) Prior to 10:00 A.M., New York City time, on the first
business day after the date of this Agreement and from time to time thereafter
for such period as in the opinion of counsel for the Underwriters a prospectus
is required by law to be delivered in connection with sales by an Underwriter
or a dealer, to furnish in New York City to each Underwriter and any dealer as
many copies of the Prospectus (and of any amendment or supplement to the
Prospectus) as such Underwriter or dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Prospectus to comply with applicable law, forthwith to
prepare and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law, and
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to furnish to each Underwriter and to any dealer as many copies thereof as such
Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters in connection with the registration
or qualification of the Shares for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such registration or
qualification in effect so long as required for distribution of the Shares and
to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that the Company shall not be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general consent to
service of process or taxation other than as to matters and transactions
relating to the Prospectus, the Registration Statement, any preliminary
prospectus or the offering or sale of the Shares, in any jurisdiction in which
it is not now so subject.
(g) To mail and make generally available to its stockholders
as soon as practicable an earnings statement covering the twelve-month period
ending February __, 1999 that shall satisfy the provisions of Section 11(a) of
the Act, and to advise you in writing when such statement has been so made
available.
(h) During the period of three years after the date of this
Agreement, to furnish to you as soon as available copies of all reports or
other communications furnished to the record holders of Common Stock or
furnished to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed and such other
publicly available information concerning the Company and its subsidiaries as
you may reasonably request.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to
be paid all expenses incident to the performance of its obligations under this
Agreement, including: (i) the reasonable fees and the disbursements and
expenses of the Company's counsel, the Company's accountants in connection with
the registration and delivery of the Shares under the Act and all other fees
and expenses in connection with the preparation, printing, filing and
distribution of the Registration Statement (including financial statements and
exhibits), any preliminary prospectus, the Prospectus and all amendments and
supplements to any of the foregoing, including the mailing and delivering of
copies thereof to the Underwriters and dealers in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Shares to the Underwriters, including any transfer or other taxes payable
thereon, (iii) all costs of printing or producing this Agreement and any other
agreements or documents in connection with the offering, purchase, sale or
delivery of the Shares, (iv) all expenses in connection with the
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registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the filing fees and disbursements of counsel
for the Underwriters in connection with the review and clearance of the
offering of the Shares by the NASD, (vi) all fees and expenses in connection
with the preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to the listing
of the Shares on the New York Stock Exchange (the "NYSE"), (vii) the cost of
printing certificates representing the Shares, (viii) the costs and charges of
any transfer agent, registrar and/or depositary, (ix) the fees and expenses of
the QIU (including the fees and disbursements of counsel to the QIU), and (x)
all other costs and expenses incident to the performance of the obligations of
the Company and the Selling Stockholders hereunder for which provision is not
otherwise made in this Section. The provisions of this Section shall not
supersede or otherwise affect any agreement that the Company and the Selling
Stockholders may otherwise have for allocation of such expenses among
themselves.
(j) To use its best efforts to list, subject to notice of
issuance, the Shares on the NYSE and to maintain the listing of the Shares on
the NYSE for a period of three years after the date of this Agreement.
(k) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company on or prior to the Closing Date or any Option Closing Date, as the case
may be, and to satisfy all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the
effectiveness of this Agreement does not cover all of the Shares, to file a
Rule 462(b) Registration Statement with the Commission registering the Shares
not so covered in compliance with Rule 462(b) by 10:00 P.M., New York City
time, on the date of this Agreement and to pay to the Commission the filing fee
for such Rule 462(b) Registration Statement at the time of the filing thereof
or to give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act.
(m) That it will, for so long as any of the Common Stock is
outstanding and if, in the reasonable judgment of any Underwriter (after
consultation with counsel), such Underwriter or any of its affiliates (as
defined in the Act) is required by the Act to deliver a prospectus in
connection with sales of Common Stock, (i) periodically amend the Registration
Statement so that the information contained in the Registration Statement
complies with the requirements of Section 10(a) of the Act, (ii) amend the
Registration Statement or amend or supplement the Prospectus when necessary to
reflect any material changes in the information provided therein and promptly
file such amendment or
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supplement with the Commission, (iii) provide such Underwriter with copies of
each amendment or supplement so filed and such other documents, including
opinions of counsel and "comfort" letters, as such Underwriter may reasonably
request and (iv) indemnify such Underwriter and if applicable, contribute to
any amount paid or payable by such Underwriter in a manner substantially
similar to that specified in Section 8 hereof (with appropriate modifications).
(n) That it will, on or as soon as practicable following the
Closing Date, apply the proceeds of the offerings contemplated by this
Agreement and the Debt Underwriting Agreement as set forth in the Prospectus
under the caption "Use of Proceeds".
(o) That it will comply with applicable laws and the rules of
the NASD in connection with the reserved share program described in the
Prospectus under the caption "Underwriting".
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other
than any Rule 462(b) Registration Statement to be filed by the Company after
the effectiveness of this Agreement); any Rule 462(b) Registration Statement
filed after the effectiveness of this Agreement will become effective no later
than 10:00 P.M., New York City time, on the date of this Agreement; and no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement (other than any Rule
462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement), when it became effective, did not contain
and, as amended, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the Registration
Statement (other than any Rule 462(b) Registration Statement to be filed by the
Company after the effectiveness of this Agreement) and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Act, (iii) if the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such Rule
462(b) Registration Statement and any amendments thereto, when they become
effective (A) will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (B) will comply in all material respects
with the Act, and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances
8
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in the Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in any preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly
organized and is validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, as the case may be, and has the
corporate or partnership, as the case may be, power and authority to carry on
its business as described in the Prospectus and to own, lease and operate its
properties, and each of the Company and the subsidiaries that are corporations
is duly qualified and is in good standing as a foreign corporation, authorized
to do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole (a "Material Adverse Effect").
The Company has no subsidiaries except as listed on Exhibit 21 to the
Registration Statement.
(e) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens granted or
issued by the Company or any of its subsidiaries relating to or entitling any
person to purchase or otherwise to acquire any shares of the capital stock (or
other equity ownership or partnership interests) of the Company or any of its
subsidiaries, except as disclosed in the Registration Statement.
(f) All the outstanding shares of capital stock of the
Company (including the Additional Shares to be sold by the Selling
Stockholders) have been duly authorized and validly issued in accordance with
all applicable laws and the Company's certificate of incorporation and by-laws,
and are fully paid, non-assessable and not subject to any preemptive or similar
rights; and the Shares have been duly authorized and, when issued and delivered
to the Underwriters against payment therefor as provided by this
9
Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar
rights.
(g) All of the outstanding shares of capital stock of each of
the Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature. The
Company, through its direct wholly-owned subsidiary Daboco Inc., a New York
corporation ("Daboco"), and Daboco's direct wholly-owned subsidiary DRI I Inc.,
a Delaware corporation ("DRII"), owns all of the partnership interests in Xxxxx
Xxxxx, a New York general partnership ("DR"), free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature except as
set forth in the Prospectus.
(h) The authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the Prospectus in all
material respects.
(i) Neither the Company nor any of its subsidiaries is in
violation of its respective charter, by-laws or partnership agreement, or,
except as could not reasonably be expected to have a Material Adverse Effect,
is in default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or any of their respective
property is bound.
(j) The execution, delivery and performance of this Agreement
by the Company, the compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby (including
application of the proceeds of the offerings contemplated by this Agreement and
the Debt Underwriting Agreement as set forth in the Prospectus under the
caption "Use of Proceeds") will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required from the NASD or
under the securities or Blue Sky laws of the various states), (ii) conflict
with, constitute a breach of, default under or accelerate the rights or
obligations of any person or entity under, any provision of the charter,
by-laws or partnership agreement of the Company or any of its subsidiaries or,
except as could not reasonably be expected to have a Material Adverse Effect or
materially adversely effect the ability of the Company and its subsidiaries to
consummate the transactions contemplated hereby, any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the
Company and its subsidiaries to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries or any of their
respective property is bound, (iii) violate or conflict with any applicable law
or any rule, regulation, judgment,
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order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its subsidiaries or their respective
property except as could not reasonably be expected to have a Material Adverse
Effect or materially adversely effect the ability of the Company and its
subsidiaries to consummate the transactions contemplated hereby or (iv) result
in the suspension, termination or revocation of any Authorization (as defined
in Section 6(m) below) of the Company or any of its subsidiaries or any other
impairment of the rights of the holder of any such Authorization except as
could not reasonably be expected to have a Material Adverse Effect or
materially adversely effect the ability of the Company and its subsidiaries to
consummate the transactions contemplated hereby.
(k) There are no legal or governmental proceedings pending
or, to the knowledge of the Company, threatened to which the Company or any of
its subsidiaries is or is reasonably likely to be a party or to which any of
their respective property is or is reasonably likely to be subject that are
required to be described in the Registration Statement or the Prospectus and
are not so described; nor are there any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required.
(l) Neither the Company nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or
any Authorization, any related constraints on operating activities and any
potential liabilities to third parties) which could, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(m) Each of the Company and its subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without
limitation, under any applicable Environmental Laws, as are necessary to own,
lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to make
any such filing or notice could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Authorization is valid
and in full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions
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thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; and such
Authorizations contain no restrictions that are unreasonably burdensome to the
Company or any of its subsidiaries; except where such failure to be valid and
in full force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(n) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), together with related schedules and notes, present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated therein at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; the supporting schedules, if
any, included in the Registration Statement present fairly in accordance with
generally accepted accounting principles the information required to be stated
therein; and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company. The pro forma financial information and data, and the
related notes thereto, set forth in the Registration Statement and the
Prospectus (and any supplement or amendment thereto) are, in all material
respects, accurately presented and are prepared on a basis consistent with the
historical financial statements of the Company and its subsidiaries.
(o) Price Waterhouse LLP are independent public accountants
with respect to the Company and its subsidiaries as required by the Act.
(p) No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or any
of its subsidiaries on the other hand, which is required by the Act to be
described in the Registration Statement or the Prospectus which is not so
described.
(q) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will
12
not be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
(r) Except as set forth in the Prospectus with respect to the
persons and entities listed on Annex I hereto, each of whom shall deliver the
agreement described in the third paragraph of Section 2 hereof, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(s) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and its subsidiaries, taken as a whole, (ii) there has not been any
material adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the Company or
any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(t) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or such
as do not materially interfere with the use made and proposed to be made of
such property by the Company or its subsidiaries, as applicable; and any real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries, in each case, except as described in the Prospectus.
(u) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all trademarks, service marks, trade names,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
patents, patent rights, licenses and inventions (collectively, "intellectual
property") currently employed by them in connection with the business now
operated by them except where the failure to own or possess or otherwise be
able to acquire such intellectual property could not reasonably be expected to,
singly or in the aggregate, have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of infringement of
or conflict with
13
asserted rights of others with respect to any of such intellectual property
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could reasonably be expected to have a Material Adverse
Effect.
(v) There is no (i) significant unfair labor practice
complaint, grievance or arbitration proceeding pending or, to the knowledge of
the Company, threatened against the Company or any of its subsidiaries before
the National Labor Relations Board or any state or local labor relations board
or (ii) strike, labor dispute, slowdown or stoppage pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries or, except for such actions specified in clause (i) or (ii) above,
which, singly or in the aggregate, could not reasonably be expected to, have a
Material Adverse Effect.
(w) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other than
those being contested in good faith and for which adequate reserves have been
provided.
(x) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which
they are engaged; and neither the Company nor any of its subsidiaries (i) has
received notice from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to be made in
order to continue such insurance or (ii) has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers at a cost that
could not reasonably be expected to have a Material Adverse Effect.
(y) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
14
(z) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida), or is and at all
relevant times has been duly exempt from complying therewith.
(aa) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act has indicated to the Company or any of its subsidiaries that it is
considering (i) the downgrading, suspension or withdrawal of, or any review for
a possible change that does not indicate the direction of the possible change
in, any rating assigned to the Company or any of its subsidiaries or any
securities of the Company or any of its subsidiaries or (ii) any adverse change
in the outlook for any rating of the Company or any of its subsidiaries or any
securities of the Company or any of its subsidiaries.
(bb) This Agreement and the Debt Underwriting Agreement have
each been duly authorized, executed and delivered by the Company and its
subsidiaries.
(cc) Each certificate signed by any officer of the Company
and delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the Underwriters
as to the matters covered thereby.
SECTION 7. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF
THE SELLING STOCKHOLDERS. Each Selling Stockholder represents and warrants to
each Underwriter that:
(a) Such Selling Stockholder is the lawful owner of the
Additional Shares to be sold by such Selling Stockholder pursuant to this
Agreement and has, and on the Option Closing Date will have, good and clear
title to such Additional Shares, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims whatsoever.
(b) The Additional Shares to be sold by such Selling
Stockholder have been duly authorized and are validly issued, fully paid and
non-assessable.
(c) Such Selling Stockholder has, and on the Option Closing
Date will have, full legal right, power and authority, and all authorization
and approval required by law, to enter into this Agreement, the Custody
Agreement signed by such Selling Stockholder and BankBoston, N.A., as
Custodian, relating to the deposit of the Additional Shares to be sold by such
Selling Stockholder (the "Custody Agreement") and the Power of Attorney of such
Selling Stockholder appointing certain individuals as such Selling
Stockholder's attorneys-in-fact (the "Attorneys") to the extent set forth
therein, relating to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement (the "Power of Attorney") and
to sell, assign, transfer and deliver the Additional Shares to be sold by such
Selling Stockholder in the manner provided herein and therein.
15
(d) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(e) The Custody Agreement of such Selling Stockholder has
been duly authorized, executed and delivered by such Selling Stockholder and is
a valid and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms.
(f) The Power of Attorney of such Selling Stockholder has
been duly authorized, executed and delivered by such Selling Stockholder and is
a valid and binding instrument of such Selling Stockholder, enforceable in
accordance with its terms, and, pursuant to such Power of Attorney, such
Selling Stockholder has, among other things, authorized the Attorneys, or any
one of them, to execute and deliver on such Selling Stockholder's behalf this
Agreement and any other document that they, or any one of them, may deem
necessary or desirable in connection with the transactions contemplated hereby
and thereby and to deliver the Additional Shares to be sold by such Selling
Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Additional Shares to
be sold by such Selling Stockholder pursuant to this Agreement, good and clear
title to such Additional Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security interests, equities and
claims whatsoever.
(h) The execution, delivery and performance of this Agreement
and the Custody Agreement and Power of Attorney of such Selling Stockholder by
or on behalf of such Selling Stockholder, the compliance by such Selling
Stockholder with all the provisions hereof and thereof and the consummation of
the transactions contemplated hereby and thereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the organizational documents of such Selling Stockholder, if such Selling
Stockholder is not an individual, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder or any property of such Selling
Stockholder is bound or (iii) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over such Selling Stockholder
or any property of such Selling Stockholder except in each case as would not
adversely affect the ability of such Selling Stockholder to consummate the
transactions contemplated hereby.
(i) The information in the Registration Statement under the
caption "Principal Stockholders" which specifically relates to such Selling
Stockholder does not, and will not on the Closing Date, contain any untrue
statement of a material fact or omit
16
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(j) At any time during the period described in Section 5(d),
if there is any change in the information referred to in Section 7(i), such
Selling Stockholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the Underwriters
shall be deemed to be a representation and warranty by such Selling Stockholder
to the Underwriters as to the matters covered thereby.
SECTION 8. INDEMNIFICATION. (a) Each of the Company, DRII and
DR hereby jointly and severally agrees to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished in writing to the Company by such
Underwriter through you expressly for use therein. Each Selling Stockholder
hereby jointly and severally agrees to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each Underwriter but only with reference to information relating to such
Selling Stockholder furnished in writing to the Company by such Selling
Stockholder expressly for use in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus. Notwithstanding the foregoing, the aggregate liability
of any Selling Stockholder pursuant to this Section 8(a) shall be limited to an
amount equal to the total proceeds (before deducting underwriting discounts and
commissions and expenses) received by such Selling Stockholder from the
Underwriters for the sale of the Additional Shares sold by such Selling
Stockholder hereunder.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement
17
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, each Selling Stockholder and
each person, if any, who controls such Selling Stockholder within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to such Underwriter but only with
reference to information relating to such Underwriter furnished in writing to
the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 8(a) or
8(b) (the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all reasonable fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and 8(b), the Underwriter shall
not be required to assume the defense of such action pursuant to this Section
8(c), but may employ separate counsel and participate in the defense thereof,
but the fees and expenses of such counsel, except as provided below, shall be
at the expense of such Underwriter). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified
parties and all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by DLJ, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case
of parties indemnified pursuant to Section 8(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without
its written consent if the settlement is entered into more than thirty business
days after the indemnifying party shall have received a request
18
from the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request (or shall
have failed to contest, in good faith, all portions of such fees and expenses
not so reimbursed). No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action 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 the indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of the Sellers on the one hand and the Underwriters
on the other hand in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the Offering (after
deducting underwriting discounts and commissions, but before deducting
expenses) received by the Sellers, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Sellers on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Stockholders, on the one
hand, or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Sellers and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata
19
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 in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) Each Selling Stockholder hereby designates [NAME OF
COMPANY], [ADDRESS OF COMPANY], as its authorized agent, upon which process may
be served in any action which may be instituted in any state or federal court
in the State of New York by any Underwriter, any director or officer of any
Underwriter or any person controlling any Underwriter asserting a claim for
indemnification or contribution under or pursuant to this Section 8, and each
Selling Stockholder will accept the jurisdiction of such court in such action,
and waives, to the fullest extent permitted by applicable law, any defense
based upon lack of personal jurisdiction or venue. A copy of any such process
shall be sent or given to such Selling Stockholder, at the address for notices
specified in Section 13 hereof.
SECTION 9. INDEMNIFICATION OF QIU. (a) Each of the Company,
DRII and DR hereby jointly and severally agrees to indemnify and hold harmless
the QIU, its directors, its officers and each person, if any, who controls the
QIU within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
judgments (including, without limitation, any legal or other expenses incurred
in connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) related to, based upon or arising out of (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any
20
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the QIU's activities as QIU under its
engagement pursuant to Section 2 hereof, except in the case of this clause (ii)
insofar as any such losses, claims, damages, liabilities or judgments are found
in a final judgment by a court of competent jurisdiction, not subject to
further appeal, to have resulted solely from the willful misconduct or gross
negligence of the QIU.
(b) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 9(a)
(the "QIU Indemnified Party"), the QIU Indemnified Party shall promptly notify
the person against whom such indemnity may be sought (the "QIU Indemnifying
Party") in writing and the QIU Indemnifying Party shall assume the defense of
such action, including the employment of counsel reasonably satisfactory to the
QIU Indemnified Party (which counsel shall not, except with the written consent
of the QIU Indemnified Party, be counsel to the QIU Indemnifying Party) and the
payment of all reasonable fees and expenses of such counsel, as incurred. Any
QIU Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of the QIU Indemnified Party unless (i)
the employment of such counsel shall have been specifically authorized in
writing by the QIU Indemnifying Party, (ii) the QIU Indemnifying Party shall
have failed to assume the defense of such action or employ counsel reasonably
satisfactory to the QIU Indemnified Party or (iii) the named parties to any
such action (including any impleaded parties) include both the QIU Indemnified
Party and the QIU Indemnifying Party, and the QIU Indemnified Party shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
the QIU Indemnifying Party (in which case the QIU Indemnifying Party shall not
have the right to assume the defense of such action on behalf of the QIU
Indemnified Party). In any such case, the QIU Indemnifying Party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all QIU Indemnified
Parties, which firm shall be designated by the QIU, and all such fees and
expenses shall be reimbursed as they are incurred. The QIU Indemnifying Parties
shall indemnify and hold harmless the QIU Indemnified Party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than thirty
business days after the QIU Indemnifying Party shall have received a request
from the QIU Indemnified Party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of the QIU
Indemnifying Party) and, prior to the date of such settlement, the Company
shall have failed to comply with such reimbursement request (or shall have
failed to contest, in
21
good faith, all portions of such fees and expenses not so reimbursed). The QIU
Indemnifying Party shall not, without the prior written consent of the QIU
Indemnified Party, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened action in respect
of which the QIU Indemnified Party is or could have been a party and indemnity
or contribution may be or could have been sought hereunder by the QIU
Indemnified Party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the QIU Indemnified Party from all liability on
claims that are or could have been the subject matter of such action 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 the QIU Indemnified Party.
(c) To the extent the indemnification provided for in this
Section 8 is unavailable to a QIU Indemnified Party or insufficient in respect
of any losses, claims, damages, liabilities or judgments referred to therein,
then the QIU Indemnifying Party, in lieu of indemnifying such QIU Indemnified
Party, shall contribute to the amount paid or payable by such QIU Indemnified
Party as a result of such losses, claims, damages, liabilities and judgments
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the QIU on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 9(c)(i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 9(c)(i) above
but also the relative fault of the Company on the one hand and the QIU on the
other hand in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the QIU on the other hand shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company as set forth in the table on the
cover page of the Prospectus, and the fee received by the QIU pursuant to
Section 2 hereof, bear to the sum of such total net proceeds and such fee. The
relative fault of the Company on the one hand and the QIU on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
QIU and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission and whether the
QIU's activities as QIU under its engagement pursuant to Section 2 hereof
involved any willful misconduct or gross negligence on the part of the QIU.
The Company and the QIU agree that it would not be just and
equitable if contribution pursuant to this Section 9(c) were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by a QIU Indemnified Party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to
22
the limitations set forth above, any legal or other expenses incurred by such
QIU Indemnified Party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any QIU Indemnified Party at law or in equity.
SECTION 10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
several obligations of the Underwriters to purchase the Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b)
Registration Statement after the effectiveness of this Agreement, such Rule
462(b) Registration Statement shall have become effective by 10:00 P.M., New
York City time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or, to the knowledge of the Company, contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by Xxxxxxx X. Xxxx and Xxxxxxx Xxxxxxx, in their
capacities as the President and Chief Executive Officer and Senior Vice
President and Chief Financial Officer, respectively, of the Company, confirming
the matters set forth in Sections 6(s), 10(a) and 10(b) and that the Company
has complied with all of the agreements and satisfied all of the conditions
herein contained and required to be complied with or satisfied by the Company
on or prior to the Closing Date.
(d) Since the respective dates as of which information is
given in the Prospectus other than as set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there shall not have been any change or
any development involving a prospective change in the capital stock or in the
long-term debt of the Company or any of its subsidiaries and (iii) neither the
Company nor any of its
23
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 10(d)(i),
10(d)(ii) or 10(d)(iii), in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(e) All the representations and warranties of each Selling
Stockholder contained in this Agreement shall be true and correct on the Option
Closing Date with the same force and effect as if made on and as of the Option
Closing Date and you shall have received on the Option Closing Date a
certificate dated the Option Closing Date from each Selling Stockholder to such
effect and to the effect that such Selling Stockholder has complied with all of
the agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied by such Selling Stockholder on or
prior to the Option Closing Date.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxx & Xxxxxxx, counsel for the Company, to the effect that:
(i) Each of the Company and DRII has been duly
incorporated and is validly existing and is in good standing
under the laws of the state of Delaware, with corporate power
and authority to own, lease and operate their respective
properties and conduct their business as described in the
Prospectus; and DR has been duly formed as a general
partnership under the laws of the state of New York with the
partnership power and authority to own, lease and operate its
properties and conduct its business as described in the
Prospectus;
(ii) each of the Company and its subsidiaries is
duly qualified and is in good standing as a foreign
corporation or partnership, as the case may be, authorized to
do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires
such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of
the Company (including the Additional Shares to be sold by
the Selling Stockholders) have been duly authorized and
validly issued and are fully paid, non-assessable and, to the
knowledge of such counsel, have not been issued in violation
of any preemptive rights;
(iv) the Shares have been duly authorized and, when
issued and delivered to the Underwriters against payment
therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and, to the
24
knowledge of such counsel, the issuance of such Shares will
not be subject to any preemptive rights;
(v) all of the outstanding shares of capital stock
of DRII have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned of record by the
Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature, except
as discussed in the Prospectus; and all of the partnership
interests in DR are owned of record by the Company and DRII,
free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature, except as
disclosed in the Prospectus;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company, DRII and DR and by or
on behalf of each of DLJ Merchant Banking Partners II, L.P.,
a ________ limited partnership, and certain of its affiliates
listed in Schedule II hereto;
(vii) the Registration Statement has become
effective under the Act, and to the knowledge of such counsel
no stop order suspending its effectiveness has been issued
under the Act and no proceedings for that purpose are, to the
best of such counsel's knowledge after due inquiry, pending
before by the Commission;
(viii) the statements under the captions "Risk
Factors-Regulatory Matters", "Risk Factors-Shares Eligible
for Future Sale", "Dividend Policy", "Management's Discussion
and Analysis of Financial Condition and Results of
Operations-Tax Benefits From Net Operating Losses",
"Description of Capital Stock", "Shares Eligible for Future
Sale" and "Underwriting" in the Prospectus and Items 14 and
15 of Part II of the Registration Statement, insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, are accurate in
all material respects;
(ix) neither the Company nor any of its subsidiaries
is in violation of its respective charter, by-laws or
partnership agreement and, to the best of such counsel's
knowledge after due inquiry, neither the Company nor any of
its subsidiaries is in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries or any of their respective property is
bound;
25
(x) the execution, delivery and performance of this
Agreement by the Company, DRII and DR, the issuance and sale
of the shares by the Company pursuant to this Agreement and
the consummation of the Refinancing Plan (as such term is
defined in the Prospectus) will not (A) require any consent,
approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such
as has been obtained or as may be required from the NASD or
under the securities or Blue Sky laws of the various states),
(B) violate the charter or by-laws of the Company or any of
its subsidiaries or the partnership agreement of DR or any
indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries or any of their respective property is
bound or (C) violate or conflict with any applicable federal
or New York statute, law, rule, regulation, judgment, order
or decree of any court or any governmental body or agency
having jurisdiction over the Company, any of its subsidiaries
or their respective property;
(xi) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is or could be a party or
to which any of their respective property is or could be
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described, or of
any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement that are not so described or filed as required;
(xii) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of
the proceeds thereof as described in the Prospectus, will not
be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xiii) to the best of such counsel's knowledge after
due inquiry, except as disclosed in the Registration
Statement, there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Act with respect to any
securities of the Company or to require the Company to
include such securities with the Shares registered pursuant
to the Registration Statement; and
26
(xiv) the Registration Statement and the Prospectus
comply as to form in all material respects with the
requirements for registration statements on Form S-1 under
the Act; it being understood, however, that such counsel
expresses no opinion with respect to the financial data
included in the Registration Statement or the Prospectus.
In addition, such counsel has participated in
conferences with officers and other representatives of the
Company, representatives of the independent public
accountants for the Company, and your representatives, at
which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although
such counsel is not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or
Prospectus and have not made any independent check or
verification thereof, during the course of such
participation, no facts came to such counsel's attention that
caused such counsel to believe that the Registration
Statement, at the time it became effective, 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 the
Prospectus, as of its date and as of the Closing Date,
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, it being understood that such
counsel need not express any belief with respect to the
financial statements or other financial data included in the
Registration Statement or the Prospectus.
The opinion of Xxxxxx & Xxxxxxx described in Section 10(f)
above shall be rendered to you at the request of the Company and shall so state
therein.
(g) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Weil, Gotshal & Xxxxxx LLP, counsel for the
Underwriters, as to the matters referred to in Sections 10(f)(iv), 10(f)(vi)
(but only with respect to the Company), (10)(f)(viii) (but only with respect to
the statements under the caption "Description of Capital Stock" and
"Underwriting") and 10(f)(xiv).
In giving such opinions with respect to the matters covered
by Section 10(f) and 10(g), respectively, Xxxxxx & Xxxxxxx and Xxxx, Gotshal &
Xxxxxx LLP may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification except as
specified.
27
(h) You shall have received on the Option Closing Date an
opinion or opinions (satisfactory to you and counsel for the Underwriters),
dated the Option Closing Date, of counsel for each of the Selling Stockholders,
to the effect that:
(i) such Selling Stockholder is the lawful owner of
the Additional Shares to be sold by such Selling Stockholder
pursuant to this Agreement and has good and clear title to
such Additional Shares, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims
whatsoever;
(ii) such Selling Stockholder has full legal right,
power and authority, and all authorization and approval
required by law, to enter into this Agreement and the Custody
Agreement and the Power of Attorney of such Selling
Stockholder and to sell, assign, transfer and deliver the
Additional Shares to be sold by such Selling Stockholder in
the manner provided herein and therein;
(iii) the Custody Agreement of such Selling
Stockholder has been duly authorized, executed and delivered
by such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder, enforceable in
accordance with its terms;
(iv) the Power of Attorney of each Selling
Stockholder has been duly authorized, executed and delivered
by such Selling Stockholder and is a valid and binding
instrument of such Selling Stockholder, enforceable in
accordance with its terms, and, pursuant to such Power of
Attorney, such Selling Stockholder has, among other things,
authorized the Attorneys, or any one of them, to execute and
deliver on such Selling Stockholder's behalf this Agreement
and any other document they, or any one of them, may deem
necessary or desirable in connection with the transactions
contemplated hereby and thereby and to deliver the Additional
Shares to be sold by such Selling Stockholder pursuant to
this Agreement;
(v) upon delivery of and payment for the Additional
Shares to be sold by such Selling Stockholder pursuant to
this Agreement, good and clear title to such Additional
Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security
interests, equities and claims whatsoever; and
(vi) the execution, delivery and performance of this
Agreement and the Custody Agreement and Power of Attorney of
such Selling Stockholder by such Selling Stockholder, the
compliance by such Selling Stockholder
28
with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and
thereby will not (A) require any consent, approval,
authorization or other order of, or qualification with, any
court or governmental body or agency (except such as has been
obtained or as may be required from the NASD or under the
securities laws or Blue Sky laws of the various states), (B)
violate the organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an
individual, or any indenture, loan agreement, mortgage, lease
or other agreement or instrument to which such Selling
Stockholder is a party or by which any property of such
Selling Stockholder is bound or (C) violate or conflict with
any federal or New York State statute, law, regulation,
judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Selling
Stockholder or any property of such Selling Stockholder.
(i) Daboco shall have merged with and into the Company.
(j) You shall have received, on each of the date hereof and
the Closing Date, a letter dated the date hereof or the Closing Date, as the
case may be, in form and substance satisfactory to you, from Price Waterhouse
LLP, independent public accountants, containing the information and statements
of the type ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(k) The Company shall have delivered to you the agreements
specified in Section 2 hereof which agreements shall be in full force and
effect on the Closing Date.
(l) The Shares shall have been listed, subject to notice
of issuance, on the NYSE.
(m) The Company shall not have failed on or prior to the
Closing Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company on or prior to the
Closing Date.
(n) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice
have been given of any potential or intended downgrading, suspension or
withdrawal of, or of any review (or of any potential or intended review) for a
possible change that does not indicate the direction of the possible change in,
any rating of any securities of the Company or any of its subsidiaries
(including, without limitation, the placing of any of the foregoing ratings on
credit watch with negative or developing implications or under review with an
uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act and (ii) there shall not have occurred
29
any adverse change, nor shall any notice have been given of any potential or
intended change, in the outlook for any rating of the Company or any of its
subsidiaries or any securities of the Company or any of its subsidiaries.
(o) The closing under the Debt Underwriting Agreement shall
have occurred and the Company shall have (A) issued and sold to DLJ, and DLJ
shall have purchased from the Company, the Notes pursuant to the terms of the
Debt Underwriting Agreement, (B) entered into the New Credit Agreement (as
defined in, and on the terms described in, the Prospectus), and (C) to your
reasonable satisfaction, established the defeasance account and made such
arrangements with respect to the repayment of its outstanding indebtedness with
the proceeds of the sale of the Shares and the Notes as described in the
Prospectus under the caption "Use of Proceeds".
The several obligations of the Underwriters to purchase any
Additional Shares hereunder are subject to the delivery to you on the
applicable Option Closing Date of such documents as you may reasonably request
with respect to the good standing of the Company, the due authorization of such
Additional Shares and other matters related to such Additional Shares.
SECTION 11. EFFECTIVENESS OF AGREEMENT AND TERMINATION.
This Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to
the Closing Date by you by written notice to the Sellers if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions
or in the financial markets of the United States or elsewhere that, in your
judgment, is material and adverse and, in your judgment, makes it impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus, (ii) the suspension or material limitation of trading in securities
or other instruments on the NYSE, the American Stock Exchange, the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board
of Trade or the Nasdaq National Market or limitation on prices for securities
or other instruments on any such exchange or the Nasdaq National Market, (iii)
the suspension of trading of any securities of the Company on any exchange or
in the over-the-counter market, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order
of any court or other governmental authority which in the judgment of the
Underwriters causes, or will cause a Material Adverse Effect, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
30
If on the Closing Date or on an Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it has
or they have agreed to purchase hereunder on such date and the aggregate number
of Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the total number of Firm Shares or Additional Shares, as
the case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I bears
to the total number of Firm Shares which all the non-defaulting Underwriters
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm Shares or Additional Shares, as the case may be, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Firm Shares or
Additional Shares, as the case may be, which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 11
by an amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Firm Shares to be purchased by all Underwriters and arrangements satisfactory
to you and the Company for purchase of such Firm Shares are not made within 48
hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter and the Company. In any such case
which does not result in termination of this Agreement, either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such date, the non-defaulting Underwriters shall have the option
to (i) terminate their obligation hereunder to purchase such Additional Shares
or (ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
SECTION 12. AGREEMENTS OF THE SELLING STOCKHOLDERS. Each
Selling Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable
in connection with the transfer of the Additional Shares to be sold by such
Selling Stockholder to the Underwriters.
31
(b) To do and perform all things to be done and performed by
such Selling Stockholder under this Agreement prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Additional Shares to be
sold by such Selling Stockholder pursuant to this Agreement.
SECTION 13. MISCELLANEOUS. Notices given pursuant to any
provision of this Agreement shall be addressed as follows: (i) if to the
Company, to Xxxxx Xxxxx Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Chief Executive Officer, (ii) if to the Selling Stockholders, to
[NAME OF ATTORNEY-IN-FACT] c/o [ADDRESS OF ATTORNEY-IN-FACT] and (iii) if to
any Underwriter or to you, to you c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, the Selling
Stockholders and the several Underwriters set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Shares, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the officers or directors of any Underwriter, any person controlling any
Underwriter, any QIU Indemnified Party, the Company, the officers or directors
of the Company, any person controlling the Company, any Selling Stockholder or
any person controlling such Selling Stockholder, (ii) acceptance of the Shares
and payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on
behalf of any Seller as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 11), the Sellers agree to
reimburse the several Underwriters for all out-of-pocket expenses (including
the reasonable fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(i) hereof.
The Sellers also agree, jointly and severally, to reimburse the several
Underwriters, their directors and officers, any persons controlling any of the
Underwriters, and the QIU Indemnified Parties for any and all fees and expenses
(including, without limitation, the fees disbursements of counsel) incurred by
them in connection with enforcing their rights hereunder (including, without
limitation, pursuant to Sections 8 and 9 hereof).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Selling Stockholders, the Underwriters' directors and
officers, any controlling persons referred to herein, the QIU Indemnified
Parties, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any
32
right under or by virtue of this Agreement. The term "successors and assigns"
shall not include a purchaser of any of the Shares from any of the several
Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
[signature pages follow]
33
Please confirm that the foregoing correctly sets forth the
agreement between the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours,
XXXXX XXXXX INC.
By: ______________________________
Name:
Title:
Agreed, with respect to
Sections 7, 8 and 11:
DRI I INC.
By: ______________________________
Name:
Title:
XXXXX XXXXX
By: Daboco Inc., a general partner
By: _______________________________
Name:
Title:
By: DRI I Inc., a general partner
By: ___________________________
Name:
Title:
34
By: __________________________________
Title:
THE SELLING STOCKHOLDERS
NAMED IN SCHEDULE II HERETO,
ACTING SEVERALLY
By ________________________________
Attorney-in-fact
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX, SACHS & CO.
XXXXX XXXXXX INC.
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: _______________________________________
Name:
Title:
35
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------ ----------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
Xxxxxxx, Sachs & Co.
Xxxxx Xxxxxx Inc.
[Other Underwriters]
Total
36
SCHEDULE II
Selling Stockholders
Number of Additional Shares
Selling Stockholders to be Sold
-------------------- ---------------------------
DLJ Merchant Banking Partners II,
L.P. on behalf of itself and the following related
investors:
o DLJ Merchant Banking Partners II-A, L.P.
o DLJ Offshore Partners II, C.V.
o DLJ Diversified Partners, L.P.
o DLJ Diversified Partners-A, L.P.
o DLJMB Funding II, Inc.
o DLJ Millennium Partners, L.P.
o DLJ Millennium-A, L.P.
o DLJ EAB Partners, L.P.
o UK Investment Plan 1997 Partners
o DLJ First ESC L.P.
[Name of other Selling Stockholders]
Total
37
Annex I
[Stockholders of the Company who will be required to sign lock-ups]
38
