1
EXHIBIT 1.1
3,030,400 Shares
PRIMARK CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
(U.S. Version)
___________ ___, 1995
PAINEWEBBER INCORPORATED
ALEX. XXXXX & SONS INCORPORATED
X.X. XXXXXXX & SONS, INC.
As Representatives of the
several U.S. Underwriters
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Primark Corporation, a Michigan corporation (the "Company"),
and the persons named in Schedule I (the "Selling Shareholders"), propose to
sell an aggregate of 3,030,400 shares (the "U.S. Firm Shares") of the Company's
Common Stock, without par value (the "Common Stock"), of which 2,800,000 shares
are to be issued and sold by the Company and an aggregate of 230,400 shares are
to be sold by the Selling Shareholders in the respective amounts set forth
opposite their respective names in Schedule I, to you and to the several other
U.S. Underwriters named in Schedule II hereto (collectively, the "U.S.
Underwriters"), for whom you are acting as representatives (the
"Representatives"), in connection with the offering and sale of such shares of
Common Stock in the United States and Canada to United States and Canadian
Persons (as hereinafter defined). The Company has also agreed to grant to you
and the other U.S. Underwriters an option (the "Option") to purchase up to an
additional 568,200 shares of Common Stock (the "Option Shares") on the terms
and for the purposes set forth in Section 1(b). The U.S. Firm Shares and the
Option Shares are referred to collectively herein as the "U.S. Shares", and the
International Shares (as hereinafter defined) and the U.S. Shares are referred
to collectively herein as the "Shares". It is understood that the Company and
the Selling Shareholders are concurrently entering into an agreement (the
"International
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Underwriting Agreement") providing for the sale by the Company and the
Selling Shareholders of an aggregate of 757,600 shares of Common Stock
(the "International Shares"), through arrangements with certain underwriters
outside the United States (the "International Underwriters"), for whom
PaineWebber International (U.K.) Limited, Alex. Xxxxx & Sons Incorporated, and
X.X. Xxxxxxx & Sons, Inc. are acting as lead managers (the "Managers"), in
connection with the offering and the sale of such shares of Common Stock
outside the United States and Canada to persons other than United States and
Canadian Persons. As used herein, "United States or Canadian Person" shall
mean any individual who is resident in the United States or Canada or any
corporation, pension, profit- sharing or other trust or other entity organized
under or governed by the laws of the United States or Canada or of any
political subdivision thereof (other than the foreign branch of any United
States or Canadian Person), and shall include any United States or Canadian
branch of a person other than a United States or Canadian Person; and "United
States" shall mean the United States of America, its territories, possessions
and all areas subject to its jurisdiction.
The U.S. Underwriters have entered into an agreement with the
International Underwriters (the "Agreement Between U.S. Underwriters and
International Underwriters") contemplating the coordination of certain
transactions between the U.S. Underwriters and the International Underwriters
and any such transactions between the U.S. Underwriters and the International
Underwriters shall be governed by the Agreement Between U.S. Underwriters and
International Underwriters and shall not be governed by the terms of this
Agreement.
The initial public offering price per share for the U.S.
Shares and the purchase price per share for the U.S. Shares to be paid by the
several U.S. Underwriters shall be agreed upon by the Company, the Selling
Shareholders and the Representatives, acting on behalf of the several U.S.
Underwriters, and such agreement shall be set forth in a separate written
instrument substantially in the form of Exhibit A hereto (the "U.S. Price
Determination Agreement"). The U.S. Price Determination Agreement may take the
form of an exchange of any standard form of written telecommunication among the
Company, the Selling Shareholders and the Representatives and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering
of the U.S. Shares will be governed by this Agreement, as supplemented by the
U.S. Price Determination Agreement. From and after the date of execution and
delivery of the U.S. Price Determination Agreement, this Agreement shall be
deemed to incorporate, and, unless the context otherwise indicates, all
references contained herein to "this Agreement" and to the phrase "herein"
shall be deemed to include the U.S. Price Determination Agreement. The initial
public
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offering price per share and the purchase price per share for the International
Shares to be paid by the several International Underwriters pursuant to the
International Underwriting Agreement shall be set forth in a separate agreement
(the "International Price Determination Agreement"), the form of which is
attached to the International Underwriting Agreement. From and after the date
of the execution and delivery of the International Price Determination
Agreement, unless the context otherwise indicates, all references contained
herein to the "International Underwriting Agreement" shall be deemed to include
the International Price Determination Agreement. The purchase price per share
for the International Shares to be paid by the several International
Underwriters shall be identical to the purchase price per share for the U.S.
Shares to be paid by the several U.S. Underwriters hereunder.
Each Selling Shareholder has executed and delivered a Custody
Agreement and a Power of Attorney in the form attached hereto as Exhibit B
(collectively, the "Agreement and Power of Attorney") pursuant to which each
Selling Shareholder has placed his U.S. Firm Shares and International Shares in
custody and appointed the persons designated therein as a committee (the
"Committee") with authority to execute and deliver this Agreement and the
International Underwriting Agreement on behalf of such Selling Shareholder and
to take certain other actions with respect thereto and hereto.
The Company and the Selling Shareholders confirm as follows
their respective agreements with the Representatives and the several other U.S.
Underwriters.
1. Agreement to Sell and Purchase.
-------------------------------
(a) On the basis of the respective representations,
warranties and agreements of the Company and the Selling Shareholders
herein contained and subject to all the terms and conditions of this
Agreement, (i) the Company and each of the Selling Shareholders,
severally and not jointly, agree to sell to the several U.S.
Underwriters and (ii) each of the U.S. Underwriters, severally and not
jointly, agrees to purchase from the Company and the Selling
Shareholders at the purchase price per share for the U.S. Firm Shares
to be agreed upon by the Representatives, the Company and the Selling
Shareholders in accordance with Section 1(c) or 1(d) and set forth in
the U.S. Price Determination Agreement, the number of U.S. Firm Shares
set forth opposite the name of such U.S. Underwriter in Schedule II,
plus such additional number of U.S. Firm Shares which such U.S.
Underwriter may become obligated to purchase pursuant to Section 9
hereof. If the Company elects to rely
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on Rule 430A (as hereinafter defined), Schedule II may be attached to
the U.S. Price Determination Agreement.
(b) Subject to all the terms and conditions of this
Agreement, the Company grants the Option to the several U.S.
Underwriters to purchase, severally and not jointly, up to 568,200
Option Shares from the Company at the same price per share as the U.S.
Underwriters shall pay for the U.S. Firm Shares. The Option may be
exercised only to cover over- allotments in the sale of the U.S. Firm
Shares by the U.S. Underwriters and may be exercised in whole or in
part at any time on or before the 30th day after the date of this
Agreement (or, if the Company has elected to rely on Rule 430A, on or
before the 30th day after the date of the U.S. Price Determination
Agreement), upon written or telegraphic notice (the "Option Shares
Notice") by the Representatives to the Company no later than 12:00
noon, New York City time, at least two and no more than five business
days before the date specified for closing in the Option Shares Notice
(the "Option Closing Date") setting forth the aggregate number of
Option Shares to be purchased and the time and date for such purchase.
On the Option Closing Date, the Company will issue and sell to the
U.S. Underwriters the number of Option Shares set forth in the Option
Shares Notice, and each U.S. Underwriter will purchase such percentage
of the Option Shares as is equal to the percentage of U.S. Firm Shares
that such U.S. Underwriter is purchasing, as adjusted by the
Representatives in such manner as they deem advisable to avoid
fractional shares.
(c) If the Company has elected not to rely on Rule 430A, the
initial public offering price per share for the U.S. Firm Shares and
the purchase price per share for the U.S. Firm Shares to be paid by
the several U.S. Underwriters shall be agreed upon and set forth in
the U.S. Price Determination Agreement, which shall be dated the date
hereof, and an amendment to the Registration Statement (as hereinafter
defined) containing such per share price information shall be filed
before the Registration Statement becomes effective.
(d) If the Company has elected to rely on Rule 430A, the
initial public offering price per share for the U.S. Firm Shares and
the purchase price per share for the U.S. Firm Shares to be paid by
the several U.S. Underwriters shall be agreed upon and set forth in
the U.S. Price Determination Agreement. In the event that the U.S.
Price Determination Agreement has not been executed by the close of
business on the fourteenth business day following the date on which
the initial registration statement (as defined below) becomes
effective, this Agreement shall terminate forthwith, without
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liability of any party to any other party except that Section 7 shall
remain in effect.
2. DELIVERY AND PAYMENT. Delivery of the U.S. Firm Shares
shall be made to the Representatives for the accounts of the U.S. Underwriters
against payment of the purchase price by credit to the account of the Company,
for itself and on behalf of each of the Selling Shareholders, with the
Depository Trust Company. Such payment shall be made at 10:00 a.m., New York
City time, on the fourth business day following the date of this Agreement or,
if the Company has elected to rely on Rule 430A, the fourth business day after
the date on which the first bona fide offering of the U.S. Shares to the public
is made by the U.S. Underwriters or at such time on such other date as may be
agreed upon by the Company and the Representatives (such date is hereinafter
referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option
Shares against payment by the U.S. Underwriters (in the manner specified above)
will take place at the time and date (which may be the Closing Date) specified
in the Option Shares Notice.
The cost of original issue tax stamps, if any, in connection
with the issuance and delivery of the U.S. Firm Shares and Option Shares by the
Company to the respective U.S. Underwriters shall be borne by the Company. The
cost of tax stamps, if any, in connection with the sale of the U.S. Firm Shares
by the Selling Shareholders shall be borne by the Selling Shareholders. The
Company and the Selling Shareholders will pay and save each U.S. Underwriter
and any subsequent holder of the U.S. Shares harmless from any and all
liabilities with respect to or resulting from any failure or delay in paying
Federal and state stamp and other transfer taxes, if any, which may be payable
or determined to be payable in connection with the original issuance or sale to
such U.S. Underwriter of the U.S. Firm Shares and Option Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents, warrants and covenants to each U.S. Underwriter that:
(a) The Company meets the requirements for use of Form S-3.
A registration statement (Registration No. 33-_______) on Form S-3
relating to the Shares (the "initial registration statement"),
including a preliminary prospectus and such amendments to such
registration statement, as may have been required to the date of this
Agreement, has been prepared by the Company under the provisions of
the Securities Act of 1933, as amended (the
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"Act"), and the rules and regulations (collectively referred to as the
"Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder, and has been filed with the Commission.
If the Company elects to rely on Rule 462(b) of the Rules and
Regulations ("Rule 462(b)") to register a portion of the Shares, a
registration statement on Form S-3 relating to the Shares (the "Rule
462 registration statement") has been or will be prepared by the
Company under the provisions of the Act and the Rules and Regulations
and has been or will be filed with the Commission. The initial
registration statement and the Rule 462 registration statement contain
forms of two preliminary prospectuses to be used in connection with
the offering and sale of the Shares: a United States preliminary
prospectus (the "United States Preliminary Prospectus") relating to
the U.S. Shares and an international preliminary prospectus (the
"International Preliminary Prospectus"; the United States Preliminary
Prospectus and the International Preliminary Prospectus are referred
to collectively herein as the "preliminary prospectus") relating to
the International Shares. The International Preliminary Prospectus is
identical to the United States Preliminary Prospectus, except for
differences in the outside front cover page, the back cover page and
the text of the section headed "Underwriting" and except for the
inclusion in the International Preliminary Prospectus of a section
headed "United States Taxation of Non-U.S. Shareholders." The term
"preliminary prospectus" as used herein means a preliminary prospectus
as contemplated by Rule 430 or Rule 430A ("Rule 430A") of the Rules
and Regulations included at any time as part of the initial
registration statement. Copies of the initial registration statement
and amendments thereto and the Rule 462 registration statement, if
any, have been delivered to the Representatives and the Managers,
copies of each related United States Preliminary Prospectus have been
delivered to the Representatives of the U.S. Underwriters and copies
of each related International Preliminary Prospectus have been
delivered to the Managers. If the initial registration statement has
not become effective, a further amendment to the initial registration
statement, including a form of final prospectus, necessary to permit
the initial registration statement to become effective will be filed
promptly by the Company with the Commission. If the initial
registration statement has become effective, a final prospectus
containing information permitted to be omitted at the time of
effectiveness of the initial registration statement by Rule 430A will
be filed by the Company with
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the Commission in accordance with Rule 424(b) of the Rules and Regulations
("Rule 424(b)") promptly after execution and delivery of the U.S. Price
Determination Agreement. The term "Registration Statement" means,
collectively, (i) the initial registration statement as amended at the time it
becomes or became effective (the "Effective Date"), including financial
statements and all exhibits and any information deemed to be included by Rule
430A, and (ii) if the Company elects to rely on Rule 462(b) to register a
portion of the Shares, the Rule 462 registration statement at the time it
becomes or became effective (the "Rule 462 Effective Date"). The term
"Prospectus" means, collectively, (i) a prospectus relating to the U.S. Shares
in the form it is first filed with the Commission pursuant to Rule 424(b), or
if the Company elects to rely on Rule 434(c) of the Rules and Regulations
("Rule 434(c)"), the United States Preliminary Prospectus and abbreviated term
sheet in the form such term sheet is first filed with the Commission pursuant
to Rule 424(b) (the "United States Prospectus") and (ii) a prospectus relating
to the International Shares in the form it is first filed with the Commission
pursuant to Rule 424(b), or if the Company elects to rely on Rule 434(c), the
International Preliminary Prospectus and abbreviated term sheet in the form
such term sheet is first filed with the Commission pursuant to Rule 424(b) (the
"International Prospectus"), or, if such filings under Rule 424(b) are not
required, the forms of final prospectuses included in the Registration
Statement at the Effective Date and the Rule 462 Effective Date, if applicable.
Any reference herein to the Registration Statement, any preliminary prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the Effective Date, the Rule 462 Effective Date, or the
date of such preliminary prospectus or the Prospectus, as the case may be. Any
reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date, the Rule 462 Effective Date, or the date
of any preliminary prospectus or the Prospectus, as the case may be, and deemed
to be incorporated therein by reference.
(b) On the Effective Date, the Rule 462 Effective Date, the
date the Prospectus is first filed with the
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Commission pursuant to Rule 424(b) (if required), at all times
subsequent to and including the Closing Date and, if later, the Option
Closing Date and when any post-effective amendment to the Registration
Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, the Registration Statement
and the Prospectus (as amended or as supplemented if the Company shall
have filed with the Commission any amendment or supplement thereto),
including the financial statements included or incorporated by
reference in the Prospectus, did or will comply with all applicable
provisions of the Act, the Exchange Act, the rules and regulations
thereunder (the "Exchange Act Rules and Regulations") and the Rules
and Regulations and will contain all statements required to be stated
therein in accordance with the Act, the Exchange Act, the Exchange Act
Rules and Regulations and the Rules and Regulations. On the Effective
Date, the Rule 462 Effective Date, and when any post-effective
amendment to the Registration Statement becomes effective, no part of
the Registration Statement or any such amendment did or will contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading. At the Effective Date, the Rule
462 Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and at the
Closing Date and, if later, the Option Closing Date, the Prospectus
did not or will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The foregoing representations and warranties in this
Section 3(b) do not apply to any statements or omissions made in
reliance on and in conformity with information relating to any U.S.
Underwriter or International Underwriter furnished in writing to the
Company by the Representatives or the Managers specifically for
inclusion in the Registration Statement or Prospectus or any amendment
or supplement thereto. For all purposes of this Agreement, the
amounts of the selling concession and reallowance set forth in the
Prospectus constitute the only information relating to any U.S.
Underwriter furnished in writing to the Company by the Representatives
on behalf of the U.S. Underwriters expressly for inclusion in the
United States Preliminary Prospectus, the Registration Statement or
the United States Prospectus. The Company has not distributed any
offering material in connection with the
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offering or sale of the Shares other than the Registration Statement,
the preliminary prospectus, and the Prospectus.
(c) The documents which are incorporated by reference in the
preliminary prospectus and the Prospectus or from which information is
so incorporated by reference, when they become effective or were filed
with the Commission, as the case may be, complied in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, the Exchange Act Rules and Regulations and the Rules and
Regulations; and any documents so filed and incorporated by reference
subsequent to the Effective Date shall, when they are filed with the
Commission, conform in all material respects with the requirements of
the Act and the Exchange Act, as applicable, the Exchange Act Rules
and Regulations and the Rules and Regulations.
(d) The only subsidiaries (as defined in the Rules and
Regulations) of the Company are the subsidiaries listed on Exhibit C
attached hereto (the "subsidiaries"). The Company and each of its
subsidiaries is, and at the Closing Date will be, a corporation duly
organized, validly existing and, except for subsidiaries organized
under the laws of England and Wales or Hong Kong [OTHERS?], in good
standing under the laws of its jurisdiction of incorporation. The
Company and each of its subsidiaries has, and at the Closing Date will
have, full power and authority to conduct all the activities conducted
by it, to own or lease all the assets owned or leased by it and to
conduct its business as described in the Registration Statement and
the Prospectus. The Company and each of its subsidiaries is, and at
the Closing Date will be, duly licensed or qualified to do business
and in good standing as a foreign corporation in all jurisdictions in
which the nature of the activities conducted by it or the character of
the assets owned or leased by it makes such licensing or qualification
necessary except where the failure to be so qualified, considering all
such cases in the aggregate, does not involve a material risk to the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries. Except for the stock of its subsidiaries and as
disclosed in the Registration Statement, the Company does not own, and
at the Closing Date will not own, directly or indirectly, any shares
of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm,
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partnership, joint venture, association or other entity. Complete and
correct copies of the charter documents, by- laws, and other governing
instruments of the Company and each of its subsidiaries and all
amendments thereto have been delivered to the Representatives and the
Managers, and no changes therein will be made subsequent to the date
hereof and prior to the Closing Date or, if later, the Option Closing
Date.
(e) The outstanding shares of Common Stock have been, and the
Shares to be issued and sold by the Company upon such issuance will
be, duly authorized, validly issued, fully paid and nonassessable and
will not be subject to any preemptive or similar right. The
description of the Common Stock contained or incorporated by reference
in the Registration Statement and the Prospectus is, and at the
Closing Date will be, complete and accurate in all material respects.
Except as set forth in the Prospectus, the Company does not have
outstanding, and at the Closing Date will not have outstanding, any
options to purchase, or any rights or warrants to subscribe for, or
any securities or obligations convertible into, or any contracts or
commitments to issue or sell, any shares of Common Stock, any shares
of capital stock of any subsidiary or any such warrants, convertible
securities or obligations. All of the issued and outstanding shares
of capital stock of, or other ownership interests in, each subsidiary
of the Company have been duly and validly authorized and issued, are
fully paid and nonassessable, and, except as disclosed in the
Prospectus as of the Closing Date and, if later, the Option Closing
Date, all of the shares of capital stock of, or other ownership
interests in, each subsidiary of the Company will be owned, directly
or through subsidiaries of the Company, by the Company free and clear
of any security interest, mortgage, pledge, claim, lien or encumbrance
other than as created by the Company's $75,000,000 Credit Agreement
dated June 29, 1995 (the "Credit Agreement"). No subsidiary of the
Company is prohibited, directly or indirectly, from paying any
dividends to the Company or any other subsidiary of the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company or any other subsidiary of the Company, any
loans or advances to such subsidiary from the Company or form
transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in
or contemplated by the Prospectus.
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(f) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the
Prospectus present fairly the consolidated financial condition of the
Company as of the respective dates thereof and the consolidated
results of operations and cash flows of the Company for the respective
periods covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
entire period involved, except as otherwise disclosed in the
Prospectus. No other financial statements or schedules of the Company
are required by the Act, the Exchange Act, the Rules and Regulations,
or the Exchange Act Rules and Regulations to be included in the
Registration Statement or the Prospectus. Deloitte & Touche LLP, who
have reported on such financial statements and schedules, are
independent accountants with respect to the Company as required by the
Act and the Rules and Regulations. The financial statements of
Disclosure, Inc. and its affiliates ("Disclosure") incorporated by
reference in the Registration Statement present fairly the combined
financial condition of Disclosure as of the respective dates thereof
and the combined results of operations and cash flows of Disclosure
for the respective periods covered thereby, all in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed
in therein. No other financial statements or schedules of any
subsidiary are required by the Act, the Exchange Act, the Rules and
Regulations, or the Exchange Act Rules and Regulations to be included
in the Registration Statement or the Prospectus. Xxxxxx Xxxxxx and
Company, P.C. (together with Deloitte & Touche LLP, the
"Accountants"), who have reported on such financial statements and
schedules of Disclosure, are independent accountants with respect to
the Company and Disclosure as required by the Act and the Rules and
Regulations. The statements included in the Registration Statement
with respect to each of the Accountants pursuant to Rule 509 of
Regulation S-K of the Rules and Regulations are true and correct in
all material respects.
(g) The pro forma financial statements and related notes
included or incorporated by reference in the Registration Statement or
the Prospectus have been prepared in accordance with the applicable
requirements of the Act and include all adjustments necessary to
present fairly the pro forma financial condition and results of
operations at the respective dates and for the
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respective periods indicated and all assumptions used in preparing the
pro forma financial statements are reasonable.
(h) The Company 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 authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (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 existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(i) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and prior to the Closing Date, except as set forth in or contemplated
by the Registration Statement and the Prospectus, (i) there has not
been and will not have been any change in the capitalization of the
Company (other than shares issued pursuant to exercise of currently
outstanding employee or director stock options), or any material
adverse change in the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the
Company and its subsidiaries, arising for any reason whatsoever, (ii)
neither the Company nor any of its subsidiaries has incurred nor will
it incur any material liabilities or obligations, direct or
contingent, nor has it entered into nor will it enter into any
material transactions other than pursuant to this Agreement and the
transactions referred to herein and (iii) the Company has not and will
not have paid or declared any dividends or other distributions of any
kind on any class of its capital stock.
(j) Neither the Company nor any subsidiary is an "investment
company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
(k) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits, or proceedings (including
compliance audits and
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investigations) pending or, to the knowledge of the Company and each
of its subsidiaries, threatened against or affecting the Company or
any of its subsidiaries or any of their respective directors or
officers in his capacity as such, before or by any Federal or state
court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling,
decision or finding might materially and adversely affect the Company
or any of its subsidiaries or its business, properties, business
prospects, condition (financial or otherwise) or results of
operations.
(l) The Company and each of its subsidiaries has, and at the
Closing Date will have, (i) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to
carry on its business as contemplated in the Prospectus, (ii) all
security clearances necessary to complete all current contracts or
agreements between the Company or any of its subsidiaries, on the one
hand, and any Federal or state regulatory body, administrative agency
or other governmental body, domestic or foreign, on the other hand,
(iii) complied in all respects with all laws, regulations and orders
applicable to it or its business and (iv) performed all its
obligations required to be performed by it, and is not, and at the
Closing Date will not be, in default, under any indenture, mortgage,
deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract or other agreement or
instrument (collectively a "contract or other agreement") to which it
is a party or by which its property is bound or affected. To the best
knowledge of the Company and each of its subsidiaries, no other party
under any contract or other agreement to which it is a party is in
default in any respect thereunder. Neither the Company nor any of its
subsidiaries is, nor at the Closing Date will any of them be, in
violation of any provision of its charter documents, by-laws, or other
governing instruments.
(m) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body
is required for the consummation by the Company of the transactions on
its part contemplated herein and in the International Underwriting
Agreement, except such as have been obtained under the Act or the
Rules and Regulations and such as may be required under state
securities or Blue Sky laws or the by-laws and rules of the National
Association of
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Securities Dealers, Inc. (the "NASD") in connection with the purchase
and distribution by the U.S. Underwriters of the U.S. Shares to be
sold by the Company.
(n) The Company has full corporate power and authority to
enter into this Agreement and the International Underwriting
Agreement. Each of this Agreement and the International Underwriting
Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company
and is enforceable against the Company in accordance with the terms
hereof and thereof. The performance of this Agreement and the
International Underwriting Agreement and the consummation of the
transactions contemplated hereby and thereby will not result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets of the Company or any of its subsidiaries pursuant to the
terms or provisions of, or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or give any
other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, the charter
documents, by-laws, or other governing instruments of the Company or
any of its subsidiaries, any contract or other agreement 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 its properties is bound or
affected, or violate or conflict with any judgment, ruling, decree,
order, statute, rule or regulation of any court or other governmental
agency or body applicable to the business or properties of the Company
or any of its subsidiaries.
(o) The Company and each of its subsidiaries has good and
marketable title to all properties and assets described in the
Prospectus as owned by them, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the
Prospectus or are not material to the business of the Company or its
subsidiaries. The Company and each of its subsidiaries has valid,
subsisting and enforceable leases for the properties described in the
Prospectus as leased by it, with such exceptions as are not material
and do not materially interfere with the use made and proposed to be
made of such properties by the Company and such subsidiaries.
(p) There is no document or contract of a character required
to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the
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Registration Statement which is not described or filed as required.
All such contracts to which the Company or any of its subsidiaries is
a party have been duly authorized, executed and delivered by the
Company or such subsidiary, constitute valid and binding agreements of
the Company or such subsidiary and are enforceable against the Company
or such subsidiary in accordance with the terms thereof. Neither the
Company nor any of its subsidiaries is aware of any material contract
to which the Company or any of its subsidiaries is a party that is
terminable within the next twelve months and that will not be renewed
by the other party to such contract in the ordinary course.
(q) No statement, representation, warranty or covenant made
by the Company in this Agreement or in the International Underwriting
Agreement or made in any certificate or document required by this
Agreement or the International Underwriting Agreement to be delivered
to the Representatives or the Managers was or will be, when made,
inaccurate, untrue or incorrect.
(r) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action
intended, or which might reasonably be expected, to cause or result,
under the Act or otherwise, in, or which has constituted,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(s) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of
the Registration Statement.
(t) The Shares are duly authorized for listing, subject to
official notice of issuance, on the New York and Pacific Stock
Exchanges.
(u) Neither the Company nor any of its subsidiaries is
involved in any material labor dispute nor, to the knowledge of the
Company and each of its subsidiaries, is any such dispute threatened.
(v) The Company and its subsidiaries own, or are licensed or
otherwise have the full exclusive right to use, all material patents,
trademarks, trade names, and other items of intellectual property
which are used in or necessary for the conduct of their respective
businesses as described in the Prospectus. No claims have been
asserted by any person with respect to such patents,
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trademarks, trade names, or other items of intellectual property or
challenging or questioning the validity or effectiveness of any such
patents, trademarks, trade names, or other items of intellectual
property. The use, in connection with the business and operations of
the Company and its subsidiaries, of such patents, trademarks, trade
names, or other items of intellectual property does not, to the
Company's knowledge, infringe on the rights of any person.
(w) Neither the Company nor any of its subsidiaries nor,
to the Company's knowledge, any employee or agent of the Company or
any subsidiary has made any payment of funds of the Company or any
subsidiary or received or retained any funds in violation of any law,
rule or regulation which payment, receipt or retention is of a
character required to be disclosed in the Prospectus.
(x) The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
and have paid all taxes shown as due thereon except where extensions
have been obtained or a failure to file a return would not have a
material adverse effect on the condition (financial or otherwise) or
the results of operations of the Company and its subsidiaries, taken
as a whole; and the Company and each of its subsidiaries has no
knowledge of any tax deficiency which has been or might be asserted or
threatened against the Company or any of its subsidiaries which could
materially and adversely affect the condition (financial or otherwise)
or the results of operations of the Company and its subsidiaries,
taken as a whole.
(y) All material transactions between the Company and its
subsidiaries and the officers, directors and major stockholders of the
Company have been accurately disclosed in the Registration Statement
and the terms of each such transaction are fair to the Company and
comparable to the terms that could have been obtained from unrelated
parties.
(z) The Company and its subsidiaries maintain in full
force and effect insurance of the types and in the amounts generally
deemed adequate for their businesses, including, but not limited to,
insurance covering real and personal property owned or leased by them
against theft, damage, destruction, acts of vandalism and all other
risks customarily insured against except where the failure to maintain
such insurance would not have a material adverse effect on the
condition (financial or
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otherwise) of the Company and its subsidiaries, taken as a whole.
(aa) Neither the Company nor any of its subsidiaries has
at any time during the last five years made any payment to any
government officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or
permitted by laws of the United States or any jurisdiction thereof.
(bb) All offers and sales by the Company and each of its
subsidiaries of their securities, including but not limited to their
capital stock and options to purchase their capital stock, prior to
the date hereof were made in compliance with the Act, the Rules and
Regulations, and all other federal, state, and foreign laws and
regulations.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING
SHAREHOLDERS. Each of the Selling Shareholders, severally and not jointly,
represents, warrants and covenants to each Underwriter that:
(a) Such Selling Shareholder has full power and authority to
enter into this Agreement and the International Underwriting
Agreement. All authorizations and consents necessary for the
execution and delivery by such Selling Shareholder of the Agreement
and Power of Attorney, and for the execution of this Agreement and the
International Underwriting Agreement on behalf of such Selling
Shareholder, have been given. Each of the Agreement and Power of
Attorney, this Agreement and the International Underwriting Agreement
has been duly authorized, executed and delivered by or on behalf of
such Selling Shareholder and constitutes a valid and binding agreement
of such Selling Shareholder and is enforceable against such Selling
Shareholder in accordance with the terms thereof and hereof.
(b) Such Selling Shareholder now has, and at the time of
delivery thereof hereunder will have, (i) good and marketable title to
the Shares to be sold by such Selling Shareholder hereunder and under
the International Underwriting Agreement, free and clear of all liens,
encumbrances and claims whatsoever (other than pursuant to the
Agreement and Power of Attorney), and (ii) full legal right and power,
and all authorizations and approvals required by law, to sell,
transfer and deliver such Shares to the U.S. Underwriters hereunder
and to the International Underwriters under the International
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Underwriting Agreement and to make the representations, warranties and
agreements made by such Selling Shareholder herein and therein. Upon
the delivery of and payment for such Shares hereunder and under the
International Underwriting Agreement, such Selling Shareholder will
deliver good and marketable title thereto, free and clear of all
liens, encumbrances and claims whatsoever.
(c) On the Closing Date or the Option Closing Date, as the
case may be, all stock transfer or other taxes (other than income
taxes) which are required to be paid in connection with the sale and
transfer of the Shares to be sold by such Selling Shareholder to the
several Underwriters hereunder and to the International Underwriters
under the International Underwriting Agreement will have been fully
paid or provided for by such Selling Shareholder and all laws imposing
such taxes will have been fully complied with.
(d) The performance of this Agreement and the International
Underwriting Agreement and the consummation of the transactions
contemplated hereby and thereby will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets
of such Selling Shareholder pursuant to the terms or provisions of, or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the acceleration of any
obligation under, any contract or other agreement to which such
Selling Shareholder is a party or by which such Selling Shareholder or
any of its property is bound or affected, or under any ruling, decree,
judgment, order, statute, rule or regulation of any court or other
governmental agency or body having jurisdiction over such Selling
Shareholder or the property of such Selling Shareholder.
(e) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body
is required for the consummation by such Selling Shareholder of the
transactions on its part contemplated herein, in the International
Underwriting Agreement and in the Agreement and Power of Attorney,
except such as have been obtained under the Act or the Rules and
Regulations and such as may be required under state securities or Blue
Sky laws or the by-laws and rules of the NASD in connection with the
purchase and distribution by the U.S. Underwriters of the U.S. Shares
to be sold by such Selling Shareholder.
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(f) Such Selling Shareholder has no knowledge of any material
fact or condition not set forth in the Registration Statement or the
Prospectus which has adversely affected, or may adversely affect, the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company, and the sale of
the Shares proposed to be sold by such Selling Shareholder is not
prompted by any such knowledge.
(g) With respect to all information pertaining to such
Selling Shareholder contained in the Registration Statement and the
Prospectus (as amended or supplemented, if the Company shall have
filed with the Commission any amendment or supplement thereto), the
Registration Statement and Prospectus complied and will comply with
all applicable provisions of the Act and the Rules and Regulations,
contain and will contain all statements required to be stated therein
in accordance with the Act and the Rules and Regulations, and does not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading.
(h) To the best knowledge of such Selling Shareholder, the
representations and warranties of the Company contained in Section 3
are true and correct.
(i) Other than as permitted by the Act and the Rules and
Regulations, such Selling Shareholder has not distributed and will not
distribute any preliminary prospectus, the Prospectus or any other
offering material in connection with the offering and sale of the
Shares. Such Selling Shareholder has not taken, directly or
indirectly, any action intended, or which might reasonably be
expected, to cause or result in, under the Act or otherwise, or which
has constituted, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares.
(j) Certificates in negotiable form for the U.S. Firm Shares
to be sold hereunder and the International Shares to be sold under the
International Underwriting Agreement by such Selling Shareholder have
been placed in custody, for the purpose of making delivery of such
U.S. Firm Shares and International Shares under this Agreement and the
International Underwriting Agreement, under the Agreement and Power of
Attorney which appoints _______ as custodian (the "Custodian") for
each Selling Shareholder.
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Such Selling Shareholder agrees that the Shares represented by the
certificates held in custody for him or it under the Agreement and
Power of Attorney are for the benefit of and coupled with and subject
to the interest hereunder and under the International Underwriting
Agreement of the Custodian, the Committee, the U.S. Underwriters, the
International Underwriters, each other Selling Shareholder and the
Company, that the arrangements made by such Selling Shareholder for
such custody and the appointment of the Custodian and the Committee by
such Selling Shareholder are irrevocable, and that the obligations of
such Selling Shareholder hereunder and under the International
Underwriting Agreement shall not be terminated by operation of law,
whether by the death, disability, or incapacity of any Selling
Shareholder or the occurrence of any other event. If any Selling
Shareholder should die, become disabled or incapacitated or if any
other such event should occur before the delivery of the U.S. Firm
Shares hereunder and the International Shares under the International
Underwriting Agreement, certificates for the U.S. Firm Shares and
International Shares shall be delivered by the Custodian in accordance
with the terms and conditions of this Agreement and the International
Underwriting Agreement and actions taken by the Committee and the
Custodian pursuant to the Agreement and Power of Attorney shall be as
valid as if such death, incapacity or other event had not occurred,
regardless of whether or not the Custodian or the Committee, or either
of them, shall have received notice thereof.
5. AGREEMENTS OF THE COMPANY AND THE SELLING SHAREHOLDERS.
The Company and the Selling Shareholders (as to Sections 5(i), (j), (k), (n),
(o), (p) and (q)) agree, severally and not jointly, with the several U.S.
Underwriters as follows:
(a) The Company will not, either prior to the Effective Date
or thereafter during such period as the Prospectus is required by law
to be delivered in connection with sales of the Shares by a U.S.
Underwriter, International Underwriter or dealer, file any amendment
or supplement to the Registration Statement or the Prospectus, unless
a copy thereof shall first have been submitted to the Representatives
and the Managers within a reasonable period of time prior to the
filing thereof and the Representatives and the Managers shall have not
objected thereto in good faith.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective, and will
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notify the Representatives and the Managers promptly, and will confirm
such advice in writing (1) when the Registration Statement (including
the Rule 462 registration statement, if any) has become effective and
when any post-effective amendment thereto becomes effective, (2) of
any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information, (3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof,
(4) of the happening of any event during the period mentioned in the
second sentence of Section 5(e) that in the judgment of the Company
makes any statement made in the Registration Statement or the
Prospectus untrue or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they are
made, not misleading and (5) of receipt by the Company or any
representative or attorney of the Company of any other communication
from the Commission relating to the Company, the Registration
Statement, any preliminary prospectus or the Prospectus. If at any
time the Commission shall issue any order suspending the effectiveness
of the Registration Statement, the Company will make every reasonable
effort to obtain the withdrawal of such order at the earliest possible
moment. If the Company has omitted any information from the
Registration Statement pursuant to Rule 430A, the Company will use its
best efforts to comply with the provisions of and make all requisite
filings with the Commission pursuant to said Rule 430A and to notify
the Representatives and the Managers promptly of all such filings.
(c) The Company will furnish to the Representatives and the
Managers, without charge, two signed copies of the Registration
Statement and of any post-effective amendment thereto, including
financial statements and schedules, and all exhibits thereto
(including any document filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus), and will furnish to
the Representatives and the Managers, without charge, for transmittal
to each of the other U.S. Underwriters and International Underwriters,
a copy of the Registration Statement and any post-effectiveness
amendment thereto, including financial statements and schedules but
without exhibits.
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(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time,
the Company will deliver (i) to each of the U.S. Underwriters, without
charge, as many copies of the United States Prospectus or any
amendment or supplement thereto as the Representatives may reasonably
request and (ii) to each of the International Underwriters, without
charge, as many copies of the International Prospectus or any
amendment or supplement thereto as the Managers may reasonably
request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the several U.S. Underwriters and
the International Underwriters and by all dealers to whom the Shares
may be sold, both in connection with the offering or sale of the
Shares and for any period of time thereafter during which the
Prospectus is required by law to be delivered in connection therewith.
If during such period of time any event shall occur which in the
judgment of the Company or counsel to the U.S. Underwriters or counsel
to the International Underwriters should be set forth in the
Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made, not misleading, or if it is
necessary to supplement or amend the Prospectus to comply with law,
the Company will forthwith prepare and duly file with the Commission
an appropriate supplement or amendment thereto, and will deliver to
each of the U.S. Underwriters, without charge, such number of copies
of such supplement or amendment to the U.S. Prospectus as the
Representatives may reasonably request and will deliver to each of the
Managers, without charge, such number of copies of such supplement or
amendment to the International Prospectus as the Managers may
reasonably request. The Company shall not file any document under the
Exchange Act before the termination of the offering of the Shares by
the U.S. Underwriters and the Managers if such document would be
deemed to be incorporated by reference into the Prospectus which is
not approved by the Representatives and the Managers after reasonable
notice thereof.
(f) Prior to any public offering of the Shares, the Company
will cooperate with the Representatives and the Managers and counsel
to the Underwriters and the Managers in connection with the
registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
Representatives and the Managers may request, including,
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without limitation, the provinces and territories of Canada and other
jurisdictions outside the United States; provided, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the
Effective Date, the Company will furnish to the Representatives, the
Managers and each other U.S. Underwriter or International Underwriter
who may so request copies of such financial statements and other
periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock,
and will furnish to the Representatives, the Managers and each other
U.S. Underwriter or International Underwriter who may so request a
copy of each annual or other report it shall be required to file with
the Commission.
(h) The Company will make generally available to holders of
its securities as soon as may be practicable but in no event later
than the last day of the fifteenth full calendar month following the
calendar quarter in which the Effective Date falls, an earnings
statement (which need not be audited but shall be in reasonable
detail) for a period of 12 months ended commencing after the Effective
Date, and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this
Agreement or the International Underwriting Agreement are consummated
or this Agreement or the International Underwriting Agreement is
terminated, the Company and the Selling Shareholders, jointly and
severally, will pay, or reimburse if paid by the Representatives or
the Managers, all costs and expenses incident to the performance of
the obligations of the Company and the Selling Shareholders under this
Agreement and the International Underwriting Agreement, including but
not limited to costs and expenses of or relating to (1) the
preparation, printing and filing of the Registration Statement and
exhibits to it, each preliminary prospectus, Prospectus and any
amendment or supplement to the Registration Statement or Prospectus,
(2) the preparation and delivery of certificates representing the
Shares, (3) the printing of this Agreement, the Agreement Between U.S.
Underwriters and
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International Underwriters, the International Underwriting Agreement,
the Agreement Among Underwriters, the Agreement among International
Underwriters, any Dealer Agreements, any Underwriters' Questionnaire
and the Agreement and Power of Attorney, (4) furnishing (including
costs of shipping and mailing) such copies of the Registration
Statement, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may be requested for use in
connection with the offering and sale of the Shares by the U.S.
Underwriters, the International Underwriters or by dealers to whom
Shares may be sold, (5) the listing of the Shares on the New York and
Pacific Stock Exchanges, (6) any filing fees required to be made by
the U.S. Underwriters and the International Underwriters with the
NASD, and the fees, disbursements and other charges of counsel for the
U.S. Underwriters and International Underwriters in connection
therewith, (7) the registration or qualification of the Shares for the
offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 5(f), including the fees,
disbursements and other charges of counsel (including counsel in
Canadian provinces and territories) to the U.S. Underwriters and
International Underwriters in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue
Sky memoranda, (8) counsel to the Company and the Selling Stockholders
and (9) the transfer agent and registrar for the Shares.
(j) If this Agreement or the International Underwriting
Agreement shall be terminated by the Company or the Selling
Shareholders pursuant to any of the provisions hereof or thereof
(otherwise than pursuant to Section 9 hereof and Section 9 thereof) or
if for any reason the Company or any Selling Shareholder shall be
unable to perform its obligations hereunder or thereunder, the Company
and the Selling Shareholders, jointly and severally, will reimburse
the several U.S. Underwriters and International Underwriters for all
out-of-pocket expenses (including the fees, disbursements and other
charges of counsel to the U.S. Underwriters and International
Underwriters) reasonably incurred by them in connection herewith.
(k) The Company and the Selling Shareholders will not at any
time, directly or indirectly, take any action intended, or which might
reasonably be expected, to cause or result in, or which will
constitute, stabilization of
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the price of the shares of Common Stock to facilitate the sale or
resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering
and sale of the Shares to be sold by the Company in the manner set
forth in the Prospectus under "Use of Proceeds".
(m) The Company will not, and will cause each of its
executive officers and directors to enter into agreements with the
Representatives and the Managers in the form set forth in Exhibit D to
the effect that they will not, for a period of 180 days after the
commencement of the public offering of the Shares, without the prior
written consent of the Representatives and the Managers (i) directly
or indirectly, assign, transfer, offer, sell, agree to sell, issue,
hypothecate, or otherwise dispose of any shares of Common Stock, or
securities convertible into or exchangeable for or any rights to
acquire shares of Common Stock, or (ii) in any way reduce his risk of
ownership or investment in any shares of Common Stock.
(n) The Selling Shareholders will not, for a period of 180
days after the commencement of the public offering of the Shares,
without the prior written consent of the Representatives and the
Managers, (i) directly or indirectly, assign, transfer, offer, sell,
agree to sell, issue, hypothecate, or otherwise dispose of any shares
of Common Stock, or securities convertible into or exchangeable for or
any rights to acquire shares of Common Stock, or (ii) in any way
reduce his risk of ownership or investment in any shares of Common
Stock.
(o) The Selling Shareholders will not, without the prior
written consent of the Representatives, make any bid for or purchase
any shares of Common Stock during the 120-day period following the
date hereof.
(p) As soon as any Selling Shareholder is advised thereof,
such Selling Shareholder will advise the Representatives and the
Managers and confirm such advice in writing, (1) of receipt by such
Selling Shareholder, or by any representative of such Selling
Shareholder, of any communication from the Commission relating to the
Registration Statement, the Prospectus or any preliminary prospectus,
or any notice or order of the Commission relating to the Company or
any of the Selling Shareholders in connection with the transactions
contemplated by this Agreement or the International
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Underwriting Agreement and (2) of the happening of any event during
the period from and after the Effective Date that in the judgment of
such Selling Shareholder makes any statement made in the Registration
Statement or the Prospectus untrue or that requires the making of any
changes in the Registration Statement or the Prospectus in order to
make the statements therein, in light of the circumstances in which
they were made, not misleading.
(q) The Selling Shareholders will deliver to the
Representatives and the Managers prior to or on the Closing Date a
properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
6. CONDITIONS OF THE OBLIGATIONS OF THE U.S. UNDERWRITERS.
In addition to the execution and delivery of the U.S. Price Determination
Agreement, the obligations of each U.S. Underwriter hereunder are subject to
the following conditions:
(a) Notification that the Registration Statement has become
effective shall be received by the Representatives and the Managers
not later than 5:00 p.m., New York City time, on the date of this
Agreement and the International Underwriting Agreement or at such
later date and time as shall be consented to in writing by the
Representatives and the Managers and all filings required by Rules 424
and 462 of the Rules and Regulations and Rule 430A shall have been
made.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall be pending or threatened by the Commission, (ii) no
order suspending the effectiveness of the Registration Statement or
the qualification or registration of the Shares under the securities
or Blue Sky laws of any jurisdiction shall be in effect and no
proceeding for such purpose shall be pending before or threatened or
contemplated by the Commission or the authorities of any such
jurisdiction, (iii) any request for additional information on the part
of the staff of the Commission or any such authorities shall have been
compiled with to the satisfaction of the staff of the Commission or
such authorities and (iv) after the date hereof no amendment or
supplement to the Registration Statement or the Prospectus shall have
been filed unless a copy thereof was first submitted to the
Representatives and the Managers and the Representatives and the
Managers did not object thereto in good faith,
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and the Representatives and the Managers shall have received
certificates, dated the Closing Date and the Option Closing Date and
signed by the Chief Executive Officer or the Chairman of the Board of
Directors of the Company and the Chief Financial Officer of the
Company (who may, as to proceedings threatened, rely upon the best of
their information and belief), to the effect of clauses (i), (ii) and
(iii).
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there
shall not have been a material adverse change in the general affairs,
business, business prospects, properties, management, condition
(financial or otherwise) or results of operations of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, in each case other
than as set forth in or contemplated by the Registration Statement and
the Prospectus and (ii) neither the Company nor any of its
subsidiaries shall have sustained any material loss or interference
with its business or properties from fire, explosion, flood or other
casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action,
order or decree, which is not set forth in the Registration Statement
and the Prospectus, if in the judgment of the Representatives any such
development makes it impracticable or inadvisable to consummate the
sale and delivery of the Shares by the U.S. Underwriters and the
International Underwriters at the initial public offering price.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall
have been no litigation or other proceeding (including any
investigation) instituted against or with respect to the Company or
any of its subsidiaries or any of their respective officers or
directors in their capacities as such, before or by any Federal, state
or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or
proceeding an unfavorable ruling, decision or finding (including any
disqualification under any current or future contract) would
materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations
of the Company and its subsidiaries taken as a whole.
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(e) Each of the representations and warranties of the Company
and the Selling Shareholders contained herein shall be true and
correct in all material respects at the Closing Date and, with respect
to the Option Shares, at the Option Closing Date as if made at the
Closing Date and, with respect to the Option Shares, at the Option
Closing Date, and all covenants and agreements contained herein and in
the International Underwriting Agreement to be performed on the part
of the Company and the Selling Shareholders and all conditions
contained herein and in the International Underwriting Agreement to be
fulfilled or complied with by the Company and the Selling Shareholders
at or prior to the Closing Date and, with respect to the Option
Shares, at or prior to the Option Closing Date, shall have been duly
performed, fulfilled or complied with.
(f) The Representatives and the Managers shall have received
opinions, each dated the Closing Date and, with respect to the Option
Shares, the Option Closing Date, and satisfactory in form and
substance to counsel for the U.S. Underwriters and International
Underwriters, from Skadden, Arps, Slate, Xxxxxxx & Xxxx, counsel to
the Company and the Selling Shareholders, Xxxxxxx X. Xxxxxxx, Esq.,
General Counsel to the Company, [OTHER SPECIAL COUNSEL], each to the
effect set forth in Exhibit E.
(g) The Representatives and the Managers shall have received
an opinion, dated the Closing Date and the Option Closing Date, from
XxXxxxxxx, Will & Xxxxx, counsel to the U.S. Underwriters, with
respect to the Registration Statement, the Prospectus and this
Agreement, which opinion shall be satisfactory in all respects to the
Representatives and the Managers.
(h) Concurrently with the execution and delivery of this
Agreement and the International Underwriting Agreement, or, if the
Company elects to rely on Rule 430A, on the date of the United States
Prospectus, each of the Accountants shall have furnished to the
Representatives and the Managers a letter, dated the date of its
delivery, addressed to the Representatives and the Managers and in
form and substance satisfactory to the Representatives and the
Managers, confirming that they are independent accountants with
respect to the Company and Disclosure as required by the Act and the
Rules and Regulations and with respect to certain financial and other
statistical and numerical information contained in the Registration
Statement or incorporated by reference therein. At the Closing Date
and, as to the Option
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Shares, the Option Closing Date, each of the Accountants shall have
furnished to the Representatives and the Managers another letter,
dated the date of its delivery, which shall confirm, on the basis of a
review in accordance with the procedures set forth in the letter
referred to in the prior sentence, that nothing has come to each of
their attention during the period from the date of the letter referred
to in the prior sentence to a date (specified in the subsequent
letter) not more than five days prior to the Closing Date and the
Option Closing Date, as the case may be, which would require any
change in the letter referred to in the prior sentence dated the date
hereof if it were required to be dated and delivered at the Closing
Date and the Option Closing Date.
(i) Concurrently with the execution and delivery of this
Agreement and the International Underwriting Agreement, or, if the
Company elects to rely on Rule 430A, on the date of the Prospectus,
and at the Closing Date and, as to the Option Shares, the Option
Closing Date, there shall be furnished to the Representatives and the
Managers an accurate certificate, dated the date of its delivery,
signed by each of the Chief Executive Officer and the Chief Financial
Officer of the Company, in form and substance satisfactory to the
Representatives and the Managers, to the effect that:
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus
(including any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus)
and (A) as of the date of such certificate, such documents are
true and correct in all material respects and do not omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein not untrue
or misleading and (B) in the case of the certificate delivered
at the Closing Date and the Option Closing Date, since the
Effective Date no event has occurred as a result of which it
is necessary to amend or supplement the Prospectus in order to
make the statements therein not untrue or misleading in any
material respect and there has been no document required to be
filed under the Exchange Act and the Exchange Act Rules and
Regulations that upon such filing would be deemed to be
incorporated by
-29-
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reference into the Prospectus that has not been so filed.
(ii) Each of the representations and warranties of
the Company contained in this Agreement were, when originally
made, and are, at the time such certificate is dated, true and
correct in all material respects.
(iii) Each of the covenants required to be performed
by the Company herein and in the International Underwriting
Agreement on or prior to the date of such certificate has been
duly, timely and fully performed and each condition herein
required to be satisfied or fulfilled on or prior to the date
of such certificate has been duly, timely and fully satisfied
or fulfilled.
(j) Concurrently with the execution and delivery of this
Agreement and the International Underwriting Agreement and at the
Closing Date and, as to the Option Shares, the Option Closing Date,
there shall have been furnished to the Representatives and the
Managers an accurate certificate, dated the date of its delivery,
signed by the Committee on behalf of each of the Selling Shareholders,
in form and substance satisfactory to the Representatives and the
Managers, to the effect that the representations and warranties of
each of the Selling Shareholders contained herein are true and correct
in all material respects on and as of the date of such certificate as
if made on and as of the date of such certificate, and each of the
covenants and conditions required herein and in the International
Underwriting Agreement to be performed or complied with by the Selling
Shareholders on or prior to the date of such certificate has been
duly, timely and fully performed or complied with.
(k) On or prior to the Closing Date, the Representatives and
the Managers shall have received the executed agreements referred to
in Section 5(n).
(l) The Shares shall be qualified for sale in such
jurisdictions as the Representatives and the Managers may reasonably
request, and each such qualification shall be in effect and not
subject to any stop order or other proceeding on the Closing Date or
the Option Closing Date.
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(m) Prior to the Closing Date, the Shares shall have been
duly authorized for listing by the New York and Pacific Stock
Exchanges upon official notice of issuance.
(n) The Company and the Selling Shareholders shall have
furnished to the Representatives and the Managers such certificates,
in addition to those specifically mentioned herein, as the
Representatives or the Managers may have reasonably requested as to
the accuracy and completeness at the Closing Date and the Option
Closing Date of any statement in the Registration Statement or the
Prospectus or any documents filed under the Exchange Act and deemed to
be incorporated by reference into the Prospectus, as to the accuracy
at the Closing Date and the Option Closing Date of the representations
and warranties of the Company and the Selling Shareholders herein and
in the International Underwriting Agreement, as to the performance by
the Company and the Selling Shareholders of its and their respective
obligations hereunder and under the International Underwriting
Agreement, or as to the fulfillment of the conditions concurrent and
precedent to the obligations hereunder and under the International
Underwriting Agreement of the Representatives and the Managers.
(o) The closing of the purchase and sale of the International
Shares pursuant to the International Underwriting Agreement shall
occur concurrently with the closing of the purchase and sale of the
U.S. Firm Shares hereunder.
7. Indemnification.
----------------
(a) Each of the Company and the Selling Shareholders, jointly
and severally, will indemnify and hold harmless each U.S. Underwriter,
the directors, officers, employees and agents of each U.S. Underwriter
and each person, if any, who controls each U.S. Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, liabilities, expenses and
damages (including any and all investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted),
to which they, or any of them, may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, liabilities,
expenses or damages arise out of or are based on any untrue statement
or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration
-31-
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Statement, or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus, or in any documents filed
under the Exchange Act and deemed to be incorporated by reference into
the Prospectus, or the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to
make the statements in it not misleading, provided that the Company
and the Selling Shareholders will not be liable to the extent that
such loss, claim, liability, expense or damage arises from the sale of
the U.S. Shares in the public offering to any person by a U.S.
Underwriter and is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity
with information relating to any U.S. Underwriter furnished in writing
to the Company by the Representatives on behalf of any U.S.
Underwriter expressly for inclusion in the Registration Statement, the
United States Preliminary Prospectus or the United States Prospectus.
This indemnity agreement will be in addition to any liability that the
Company or any Selling Shareholder might otherwise have.
(b) Each U.S. Underwriter will indemnify and hold harmless
the Company, the Selling Shareholders, each person, if any, who
controls the Company or the Selling Shareholders within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each director
of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity
from the Company and the Selling Shareholders to each U.S.
Underwriter, but only insofar as losses, claims, liabilities, expenses
or damages arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance on
and in conformity with information relating to any U.S. Underwriter
furnished in writing to the Company by the Representatives on behalf
of such U.S. Underwriter expressly for use in the Registration
Statement, the United States Preliminary Prospectus or the United
States Prospectus. This indemnity will be in addition to any
liability that each U.S. Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of
notice of commencement of any action against such party in respect of
which a claim is to be made against an indemnifying party or parties
under this Section 7, notify each such indemnifying party of the
commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve
it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 7 unless, and only to the
extent that, such omission results in the forfeiture of
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33
substantive rights or defenses by the indemnifying party. If any such
action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after
receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel
satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume
the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided
below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the
defense. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges
of such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party
will not have the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they
are incurred. An indemnifying party will not be liable for any
settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution
in circumstances in which the indemnification
-33-
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provided for in the foregoing paragraphs of this Section 7 is
applicable in accordance with its terms but for any reason is held to
be unavailable from the Company, the Selling Shareholders or the U.S.
Underwriters, the Company, the Selling Shareholders and the U.S.
Underwriters will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting any contribution received by the Company
or the Selling Shareholders from persons other than the U.S.
Underwriters, such as persons who control the Company or the Selling
Shareholders within the meaning of the Act, officers of the Company
who signed the Registration Statement and directors of the Company,
who also may be liable for contribution) to which the Company or the
Selling Shareholders and any one or more of the U.S. Underwriters may
be subject in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and Selling Shareholders on
the one hand and the U.S. Underwriters on the other. The relative
benefits received by the Company and the Selling Shareholders, on the
one hand, and the U.S. Underwriters, on the other, shall be deemed to
be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling
Shareholders bear to the total underwriting discounts and commissions
received by the U.S. Underwriters, in each case as set forth in the
table on the cover page of the United States Prospectus. If, but only
if, the allocation provided by the foregoing sentence is not permitted
by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only the relative
benefits referred to in the foregoing sentence but also the relative
fault of the Company and the Selling Shareholders, on the one hand,
and the U.S. Underwriters, on the other, with respect to the
statements or omissions which resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by
the Company, the Selling Shareholders, or the Representatives on
behalf of the U.S. Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company, the Selling
Shareholders and the U.S. Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 7(d) were to
be determined by pro rata allocation (even if the U.S.
-34-
35
Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred
to above in this Section 7(d) shall be deemed to include, for purposes
of this Section 7(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 7(d), no U.S. Underwriter shall be required to contribute
any amount in excess of the underwriting discounts received by it and
no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) will be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The U.S. Underwriters' obligations to contribute
as provided in this Section 7(d) are several in proportion to their
respective underwriting obligations and not joint. For purposes of
this Section 7(d), any person who controls a party to this Agreement
within the meaning of the Act will have the same rights to
contribution as that party, and each officer of the Company who signed
the Registration Statement will have the same rights to contribution
as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 7(d), will
notify any such party or parties from whom contribution may be sought,
but the omission so to notify will not relieve the party or parties
from whom contribution may be sought from any other obligation it or
they may have under this Section 7(d). No party will be liable for
contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Company
and the Selling Shareholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
investigation made by or on behalf of the U.S. Underwriters, (ii)
acceptance of any of the U.S. Shares and payment therefor or (iii)
any termination of this Agreement.
(f) Notwithstanding any other provision contained in this
Agreement, the maximum amount for which any Selling Shareholder shall
be liable under this Section 7 shall be the
-35-
36
net proceeds from the offering (before deducting expenses) received by
such Selling Shareholder.
8. TERMINATION. The obligations of the several U.S.
Underwriters under this Agreement may be terminated at any time on or prior to
the Closing Date (or, with respect to the Option Shares, on or prior to the
Option Closing Date), by notice to the Company and the Committee from the
Representatives, without liability on the part of any U.S. Underwriter to the
Company or any Selling Shareholder, if, prior to delivery and payment for the
U.S. Shares (or the Option Shares, as the case may be), in the sole judgment of
the Representatives, (i) trading in any of the equity securities of the Company
shall have been suspended by the Commission, by the New York Stock Exchange or
by the Pacific Stock Exchange, (ii) trading in securities generally on the New
York Stock Exchange shall have been suspended or limited or minimum or maximum
prices shall have been generally established on such exchange, or additional
material governmental restrictions, not in force on the date of this Agreement,
shall have been imposed upon trading in securities generally by such exchange
or by order of the Commission or any court or other governmental authority,
(iii) a general banking moratorium shall have been declared by either Federal
or New York State authorities, (iv) a moratorium in foreign exchange trading by
major international banks shall have been declared or (v) any material adverse
change in the financial or securities markets in the United States or Europe or
in political, financial or economic conditions in the United States or Europe
or any outbreak or material escalation of hostilities or declaration by the
United States of a national emergency or war or other calamity or crisis shall
have occurred, the effect of any of which is such as to make it, in the sole
judgment of the Representatives, impracticable or inadvisable to market the
Shares on the terms and in the manner contemplated by the Prospectus.
9. SUBSTITUTION OF UNDERWRITERS. If any one or more of the
U.S. Underwriters shall fail or refuse to purchase any of the U.S. Firm Shares
which it or they have agreed to purchase hereunder, and the aggregate number of
U.S. Firm Shares which such defaulting U.S. Underwriter or U.S. Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of U.S. Firm Shares, the other U.S. Underwriters shall be
obligated, severally, to purchase the U.S. Firm Shares which such defaulting
U.S. Underwriter or U.S. Underwriters agreed but failed or refused to purchase,
in the proportions which the number of U.S. Firm Shares which they have
respectively agreed to purchase pursuant to Section 1 bears to the aggregate
number of U.S. Firm Shares which all such non-defaulting U.S. Underwriters have
so agreed to purchase, or in such other proportions as the Representatives may
specify; provided that in no event shall the maximum number of U.S. Firm Shares
which any U.S. Underwriter has
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37
become obligated to purchase pursuant to Section 1 be increased pursuant to
this Section 9 by more than one-ninth of the number of U.S. Firm Shares agreed
to be purchased by such U.S. Underwriter without the prior written consent of
such U.S. Underwriter. If any U.S. Underwriter or U.S. Underwriters shall fail
or refuse to purchase any U.S. Firm Shares and the aggregate number of U.S.
Firm Shares which such defaulting U.S. Underwriter or U.S. Underwriters agreed
but failed or refused to purchase exceeds one-tenth of the aggregate number of
the U.S. Firm Shares and arrangements satisfactory to the Representatives, the
Company and the Committee for the purchase of such U.S. Firm Shares are not
made within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting U.S. Underwriter, or the Company or
any Selling Shareholder for the purchase or sale of any U.S. Shares under this
Agreement. In any such case either the Representatives or the Company and the
Committee 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 in the United States Prospectus or in any documents
or arrangements may be effected. Any action taken pursuant to this Section 9
shall not relieve any defaulting U.S. Underwriter from liability in respect of
any default of such U.S. Underwriter under this Agreement.
10. U.S. DISTRIBUTION. Each U.S. Underwriter represents and
agrees that, except for (x) sales between the U.S. Underwriters and the
International Underwriters pursuant to Section 1 of the Agreement Between U.S.
and International Underwriters and (y) stabilization transactions contemplated
in Section 3 thereof conducted as part of the distribution of the Shares, (a)
it is not purchasing any of the U.S. Shares for the account of anyone other
than a United States or Canadian Person and (b) it has not offered or sold, and
will not offer or sell, directly or indirectly, any of the U.S. Shares or
distribute any prospectus relating to the U.S. Shares outside the United States
or Canada to anyone other than a United States or Canadian Person, and any
dealer to whom it may sell any of the U.S. Shares will represent that it is not
purchasing any of the U.S. Shares for the account of anyone other than a United
States or Canadian Person and will agree that it will not offer or resell such
U.S. Shares directly or indirectly outside the United States or Canada or to
anyone other than a United States or Canadian Person or to any other dealer who
does not so represent and agree.
The U.S. Underwriters further confirm that in determining
their net commitment for short account pursuant to Section 7 of the Amended and
Restated Master Agreement Among Underwriters dated as of June 11, 1984, there
shall be subtracted any Shares purchased for such U.S. Underwriter's account
pursuant to Section 1 of the Agreement Between U.S. and International
Underwriters.
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11. MISCELLANEOUS. Notice given pursuant to any of the
provisions of this Agreement shall be in writing and, unless otherwise
specified, shall be mailed or delivered (a) if to the Company, at the office of
the Company, 0000 Xxxxxx Xxxxxx, Xxxxx 0000X, Xxxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxx, Esq., (b) if to any Selling Shareholder,
______________________, or (c) if to the U.S. Underwriters, to the
Representatives at the offices of PaineWebber Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department.
Any such notice shall be effective only upon receipt. Any notice under Section
8 or 9 may be made by telex or telephone, but if so made shall be subsequently
confirmed in writing.
This Agreement has been and is made solely for the benefit of
the several U.S. Underwriters, the Company and the Selling Shareholders and of
the controlling persons, directors and officers referred to in Section 7, and
their respective successors and assigns, and, except as set forth in the
International Underwriting Agreement, no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns"
as used in this Agreement shall not include a purchaser, as such purchaser, of
U.S. Shares from any of the several U.S. Underwriters.
With respect to any obligation of the Company and the Selling
Shareholders hereunder to make any payment, to indemnify for any liability or
to reimburse for any expense, notwithstanding the fact that such obligation is
a joint and several obligation of the Company and the Selling Shareholders, the
U.S. Underwriters (or any other person to whom such payment, indemnification or
reimbursement is owed) may pursue the Company with respect thereto prior to
pursuing any Selling Shareholder.
Any action required or permitted to be taken by the
Representatives under this Agreement may be taken by them jointly or by
PaineWebber Incorporated.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
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39
The Company, the Selling Shareholders and the U.S.
Underwriters each hereby irrevocably waive any right they may have to a trial
by jury in respect of any claim based upon or arising out of this Agreement or
the transactions contemplated hereby.
* * * * *
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Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Shareholders and the several U.S.
Underwriters.
Very truly yours,
PRIMARK CORPORATION
By: _______________________________
Title:
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE I ATTACHED HERETO
By: The Committee
By: _______________________________
Title:
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
ALEX. XXXXX & SONS INCORPORATED
X.X. XXXXXXX & SONS, INC.
Acting on behalf of themselves and as the
Representatives of the other several U.S.
Underwriters named in Schedule II attached hereto.
By: PAINEWEBBER INCORPORATED
By: _________________________
Title:
By: ALEX. XXXXX & SONS INCORPORATED
By: _________________________
Title:
By: X.X. XXXXXXX & SONS, INC.
By: _________________________
Title:
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SCHEDULE I
SELLING SHAREHOLDERS
Total
Name of Number of U.S.
Selling Firm Shares
Shareholder to be Sold
----------- --------------
Xxxxxx X. Xxxxxxxx 129,600
Xxxx X. Xxxx 53,120
Xxxxxxx X. Xxxxxx 15,200
Xxxxxxx X. Xxxxxxx 24,160
Xxxxxxx X. Xxxxxxxx 8,320
------------
Total............................ 230,400
============
42
SCHEDULE II
U.S. UNDERWRITERS
Number of U.S.
Name of Firm Shares
U.S. Underwriters to be Purchased
----------------- -------------------
PaineWebber Incorporated
Alex. Xxxxx & Sons Incorporated
X.X. Xxxxxxx & Sons, Inc.
-----------------
Total............................ 3,030,400
=================
43
EXHIBIT A
PRIMARK CORPORATION
____________
U.S. PRICE DETERMINATION AGREEMENT
___________ ___, 1995
PAINEWEBBER INCORPORATED
ALEX. XXXXX & SONS INCORPORATED
X.X. XXXXXXX & SONS, INC.
As Representatives of the
several U.S. Underwriters
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the U.S. Underwriting Agreement, dated
_________ ___, 1995 (the "U.S. Underwriting Agreement"), among Primark
Corporation, a Michigan corporation (the "Company"), the Selling Shareholders
named in Schedule I thereto or hereto (the "Selling Shareholders"), and the
several U.S. Underwriters named in Schedule II thereto or hereto (the "U.S.
Underwriters"), for whom PaineWebber Incorporated, Alex. Xxxxx & Sons
Incorporated, and X.X. Xxxxxxx & Sons, Inc. are acting as representatives (the
"U.S. Representatives"). The U.S. Underwriting Agreement provides for the
purchase by the U.S. Underwriters from the Company and the Selling
Shareholders, subject to the terms and conditions set forth therein, of an
aggregate of 3,030,400 shares (the "U.S. Firm Shares") of the Company's Common
Stock, without par value. This Agreement is the U.S. Price Determination
Agreement referred to in the U.S. Underwriting Agreement.
Pursuant to Section 1 of the U.S. Underwriting Agreement, the
undersigned agree with the U.S. Representatives as follows:
1. The initial public offering price per share for the U.S.
Firm Shares shall be $_____.
2. The purchase price per share for the U.S. Firm Shares to
be paid by the several U.S. Underwriters shall be $_____
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44
representing an amount equal to the initial public offering price set forth
above, less $_______ per share.
The Company represents and warrants to each of the U.S.
Underwriters that the representations and warranties of the Company set forth
in Section 3 of the U.S. Underwriting Agreement are accurate as though
expressly made at and as of the date hereof.
The Selling Shareholders represent and warrant to each of the
U.S. Underwriters that the representations and warranties of the Selling
Shareholder set forth in Section 4 of the U.S. Underwriting Agreement are
accurate as though expressly made at and as of the date hereof.
As contemplated by the U.S. Underwriting Agreement, attached
as Schedule II is a completed list of the several U.S. Underwriters, which
shall be a part of this Agreement and the U.S. Underwriting Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of
the agreement among the U.S. Underwriters, the Company and the Selling
Shareholders, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts and together with the
U.S. Underwriting Agreement shall be a binding agreement among the U.S.
Underwriters, the Company and the Selling Shareholders in accordance with its
terms and the terms of the U.S. Underwriting Agreement.
* * *
A-2
45
Very truly yours,
PRIMARK CORPORATION
By: _______________________________
Title:
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE I ATTACHED TO THE U.S.
UNDERWRITING AGREEMENT
By: The Committee
By: _______________________________
Title:
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
ALEX. XXXXX & SONS INCORPORATED
X.X. XXXXXXX & SONS, INC.
Acting on behalf of themselves and as the
Representatives of the other several U.S.
Underwriters named in Schedule II attached
to the U.S. Underwriting Agreement.
By: PAINEWEBBER INCORPORATED
By: _________________________
Title:
By: ALEX. XXXXX & SONS INCORPORATED
By: _________________________
Title:
By: X.X. XXXXXXX & SONS, INC.
By: _________________________
Title:
A-3
46
EXHIBIT B
POWER OF ATTORNEY
PRIMARK CORPORATION
Common Stock
[Names and Addresses of Committee]
Dear Sirs:
The undersigned understands that Primark Corporation, a
Michigan corporation (the "Company"), intends to file a registration statement
(together with any subsequent registration statement filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act") relating to the
prior registration statement, being the "Registration Statement") under the
Act, in connection with the proposed public offering and sale by the Company,
the undersigned (the "Selling Shareholder") and certain other selling
shareholders (collectively, the "Selling Shareholders") of the Company's Common
Stock, without par value (the "Common Stock").
The Selling Shareholder desires to sell certain shares of
Common Stock and to include such shares among the shares covered by the
Registration Statement. The number of shares of Common Stock which the
undersigned desires to sell (the "Shares") are set forth beneath the signature
of the Selling Shareholder below.
Concurrently with the execution and delivery of this Power of
Attorney, the undersigned is delivering to you, or requesting the Company to
deliver to you, certificates for the Shares, which you are authorized to
deposit with __________, as custodian (the "Custodian"), pursuant to a custody
agreement in the form attached as Attachment A hereto (the "Custody
Agreement").
1. In connection with the foregoing, the Selling Shareholder
hereby makes, constitutes and appoints you collectively, and each of you,
individually (a "Member") and each of your respective substitutes under Section
3, the true and lawful attorneys-in-fact of the undersigned (the Members or any
of them or their respective substitutes, being herein referred to collectively
as the "Committee"), with full power and authority, in the name and on behalf
of the Selling Shareholder.
(a) To enter into the Custody Agreement and deposit with the
Custodian pursuant thereto the certificates for
B-1
47
the Shares delivered to the Committee concurrently herewith;
(b) For the purpose of effecting the sale of the Shares, to
execute and deliver (i) an Underwriting Agreement (the "U.S.
Underwriting Agreement"), by and among the Company, the other Selling
Shareholders and the representatives (the "Representatives"), selected
by the Company, of the several U.S. Underwriters (the "U.S.
Underwriters"), (ii) an Underwriting Agreement (the "International
Underwriting Agreement"), by and among the Company, the other Selling
Shareholders and the managers (the "Managers"), selected by the
Company, of the several International Underwriters (the "International
Underwriters"), (iii) a U.S. Price Determination Agreement (as defined
in the U.S. Underwriting Agreement), by and among the Company, the
other Selling Shareholders and the Representatives of the several U.S.
Underwriters and (iv) an International Price Determination Agreement
(as defined in the International Underwriting Agreement), by and among
the Company, the other Selling Shareholders and the Managers of the
several International Underwriters;
(c) To endorse, transfer and deliver certificates for the
Shares to or on the order of the Representatives, the Managers or to
their nominee or nominees, and to give such orders and instructions to
the Custodian as the Committee may in its sole discretion determine
with respect to (i) the transfer on the books of the Company of the
Shares in order to effect such sale (including the names in which new
certificates for such Shares are to be issued and the denominations
thereof); (ii) the delivery to or for the account of the
Representatives and the Managers of the certificates for the Shares
against receipt by the Custodian of the full purchase price to be paid
therefor; (iii) the remittance to the Selling Shareholder of the
Selling Shareholder's share of the proceeds, after payment of the
expenses described in the U.S. Underwriting Agreement, from any sale
of Shares; and (iv) the return to the Selling Shareholder of
certificates representing the number of Shares (if any) deposited with
the Custodian but not sold by the Selling Shareholder under the
Registration Statement for any reason;
(d) To retain Skadden, Arps, Slate, Xxxxxxx & Xxxx (who are
also counsel to the Company) as legal counsel for the Selling
Shareholders in connection with any and all matters referred to
herein;
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48
(e) To take for the Selling Shareholder all steps deemed
necessary or advisable by the Committee in connection with the
registration of the Shares under the Act, including without limitation
filing amendments to the Registration Statement, filing a registration
statement under Rule 462(b) relating to the Registration Statement,
requesting acceleration of effectiveness of the Registration
Statement, advising the Securities and Exchange Commission that the
reason the Selling Shareholder is offering the Shares for sale is to
diversify the Selling Shareholder's investments and to assist the
Company in enlarging the public market for the Common Stock, informing
said Commission that the Selling Shareholder has no knowledge of any
material adverse information with regard to the current and
prospective operations of the Company which is not stated in the
Registration Statement, and such other steps as the Committee may in
its absolute discretion deem necessary or advisable;
(f) To make, acknowledge, verify and file on the behalf of
the Selling Shareholder applications, consents to service of process
and such other undertakings or reports as may be required by law with
state commissioners or officers administering state securities or Blue
Sky laws and to take any other action required to facilitate the
qualification of the Shares under the securities or Blue Sky laws of
the jurisdictions in which the Shares are to be offered;
(g) If necessary, to endorse (in blank or otherwise) on
behalf of the Selling Shareholder the certificate or certificates
representing the Shares, or a stock power or powers attached to such
certificate or certificates; and
(h) To make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, instructions,
certificates, letters and other writings and, in general, to do all
things and to take all action which the Committee in its sole
discretion may consider necessary or proper in connection with or to
carry out the aforesaid sale of Shares, as fully as could the Selling
Shareholder if personally present and acting.
2. This Power of Attorney and all authority conferred hereby
is granted and conferred subject to and in consideration of the interest of the
Company, the Representatives, the Managers, the U.S. Underwriters, the
International Underwriters and the other Selling Shareholders and, for the
purpose of completing the
B-3
49
transactions contemplated by this Power of Attorney, this Power of Attorney and
all authority conferred hereby shall be irrevocable and shall not be terminated
by any act of the Selling Shareholder or by operation of law, whether by the
death, disability, or incapacity of the Selling Shareholder or by the
occurrence of any other event or events, and if, after the execution hereof,
the Selling Shareholder shall die or become disabled or incapacitated, or if
any other such event or events shall occur before the completion of the
transactions contemplated by this Power of Attorney, the Committee shall
nevertheless be authorized and directed to complete all such transactions as if
such death, disability, incapacity, or other event or events had not occurred
and regardless of notice thereof.
3. Each Member shall have the full power to make and
substitute any person in the place and stead of such Member, and the Selling
Shareholder hereby ratifies and confirms all that each Member or substitute or
substitutes shall do by virtue of these presents. All actions hereunder may be
taken by any one Member or his substitute. In the event of the death,
disability or incapacity of any Member, the remaining Member or Members shall
appoint a substitute therefor.
4. The Selling Shareholder hereby represents, warrants and
covenants that:
(a) All information furnished to the Company by or on behalf
of the Selling Shareholder for use in connection with the preparation
of the Registration Statement is and will be true and correct in all
material respects and does not and will not omit any material fact
necessary to make such information not misleading;
(b) The Selling Shareholder, having full right, power and
authority to do so, has duly executed and delivered this Power and
Attorney;
(c) The Selling Shareholder has carefully reviewed the
Registration Statement and will carefully review each amendment
thereto immediately upon receipt thereof from the Company and will
promptly advise the Company in writing if:
(i) The name and address of the Selling Shareholder
is not properly set forth in each preliminary prospectus
(collectively, the "Preliminary Prospectus") contained in the
Registration Statement at the time it becomes effective;
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50
(ii) The Selling Shareholder has reason to believe
that (A) any information furnished to the Company by or on
behalf of the Selling Shareholder for use in connection with
the Registration Statement, the Preliminary Prospectus, or the
final prospectus (including the abbreviated term sheet, if
any) (the "Prospectus") is not true and complete; and (B) any
Preliminary Prospectus, the Prospectus and any supplements
thereto contain any untrue statement of a material fact or
omit to state any material fact required to be stated herein
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(iii) The Selling Shareholder knows of any material
adverse information with regard to the current or prospective
operations of the Company or any of its subsidiaries which is
not disclosed in any Preliminary Prospectus, the Prospectus or
the Registration Statement; or
(iv) Except as indicted in the Prospectus, the
Selling Shareholder knows of any arrangements made or to be
made by any person, or of any transaction already effected,
(A) to limit or restrict the sale of shares of the Common
Stock during the period of the public distribution, (B) to
stabilize the market for the Common Stock or (C) to withhold
commissions, or otherwise to hold any other person responsible
for the distribution of the Selling Shareholder's
participation;
(d) In connection with the offering of the Shares, the
Selling Shareholder has not taken and will not take, directly or
indirectly, any action intended to, or which might reasonably be
expected to, cause or result in stabilization or manipulation of the
price of the Shares to facilitate the sale or resale of the Shares;
(e) The Selling Shareholder has not distributed and will not
distribute any prospectus or other offering material in connection
with the offering and sale of the Shares other than a Preliminary
Prospectus, the Prospectus or other material permitted by the Act;
B-5
51
(f) The Selling Shareholder will notify the Company in
writing immediately of any changes in the foregoing information which
should be made as a result of developments occurring after the date
hereof and prior to the Closing Dates under the U.S. Underwriting
Agreement and under the International Underwriting Agreement, and the
Committee may consider that there has not been any such development
unless advised to the contrary;
(g) The Selling Shareholder has, and at the time of delivery
of the Shares to the Representatives and the Managers it will have,
full power and authority to enter into this Power of Attorney, to
carry out the terms and provisions hereof and to make all the
representations, warranties and covenants contained herein; and
(h) This Power of Attorney is the valid and binding agreement
of the Selling Shareholder and is enforceable against the Selling
Shareholder in accordance with its terms.
5. The representations, warranties and covenants of the
Selling Shareholder in this Power of Attorney are made for the benefit of, and
may be relied upon by, the other Selling Shareholders, the Committee, the
Company and its counsel, and their representatives, agents and counsel, the
Custodian, the U.S. Underwriters, the Representatives, the Managers and the
International Underwriters.
6. The Committee shall be entitled to act and rely upon any
statement, request, notice or instructions respecting this Power of Attorney
given to it by the Selling Shareholder, not only as to the authorization,
validity and effectiveness thereof, but also as to truth and acceptability of
any information therein contained.
It is understood that the Committee assumes no responsibility
or liability to any person other than to deal with the Shares deposited with it
and the proceeds from the sale of the Shares in accordance with the provisions
hereof. The Committee makes no representations with respect to and shall have
no responsibility for the Registration Statement, the Prospectus or any
Preliminary Prospectus nor, except as herein expressly provided, for any aspect
of the offering of Common Stock, and it shall not be liable for any error of
judgment or for any act done or omitted or for any mistake of fact or law
except for its own negligence or bad faith. The Selling Shareholder agrees to
indemnify the Committee for and to hold the Committee harmless against any
loss, claim, damage or liability incurred on its part arising out of or in
connection with it acting as the Committee
B-6
52
under this Power of Attorney, as well as the cost and expense of investigating
and defending against any such loss, claim, damage or liability, except to the
extent such loss claim, damage or liability is due to the negligence or bad
faith of the Member seeking indemnification. The Selling Shareholder agrees
that the Committee may consult with counsel of its own choice (who may be
counsel for the Company) and it shall have full and complete authorization and
protection for any action taken or suffered by it hereunder in good faith and
in accordance with the opinion of such counsel.
It is understood that the Committee may, without breaching any
express or implied obligation to the Selling Shareholder hereunder, release,
amend or modify any other Power of Attorney granted by any other Selling
Shareholder.
7. It is understood that the Committee shall serve entirely
without compensation.
8. THIS POWER OF ATTORNEY SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
This Power of Attorney may be signed in two or more
counterparts with the same effect as if the signature thereto and hereto upon
the same instrument.
In case any provision in this Power of Attorney shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
The Power of Attorney shall be binding upon the Committee and
the Selling Shareholder and the heirs, legal representatives, distributees,
successors and assigns of the Selling Shareholder.
* * *
B-7
53
Dated: ________ ___, 1995
Very truly yours,
___________________________________
___________________________________
Signature(s) of Selling
Shareholder(s)
___________________________________
SHARES TO BE SOLD:
______ shares of Common Stock
ACKNOWLEDGED AND ACCEPTED
THE COMMITTEE:
_______________________________
_______________________________
_______________________________
_______________________________
NOTE: SIGNATURES MUST BE NOTARIZED
Selling Shareholders should use the appropriate form
for the state in which they are located.
B-8
54
Attachment A
CUSTODY AGREEMENT
-----------------
CUSTODY AGREEMENT, dated _________ ___, 1995, among
______________________________, as Custodian (the "Custodian"), and the persons
listed on Annex I hereto (each a "Selling Shareholder" and collectively the
"Selling Shareholders").
Primark Corporation, a Michigan corporation (the "Company"),
intends to file a registration statement (together with any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act
of 1933, as amended (the "Act") relating to the prior registration statement,
being the "Registration Statement") with the Securities and Exchange Commission
to register for sale to the public under the Act, shares of the Company's
Common Stock, without par value (the "Common Stock").
The shares to be covered by the Registration Statement shall
consist of (a) up to ________ shares of Common Stock to be sold by the Company
and (b) up to _________ shares of Common Stock (the "Shares") to be sold by the
Selling Shareholders.
Each of the Selling Shareholders has executed and delivered a
Power of Attorney (the "Power of Attorney") naming __________, __________ and
__________, and each of them, as his attorney-in-fact (the "Committee"), for
certain purposes, including the execution, delivery and performance of this
Agreement in his name, place and xxxxx, in connection with the proposed sale by
each Selling Shareholder of the number of Shares set forth opposite such
Selling Shareholder's name in Annex A.
1. A custody arrangement is hereby established by the Selling
Shareholders with the Custodian with respect to the Shares, and the Custodian
is hereby instructed to act in accordance with this Agreement and any
amendments or supplements hereto authorized by the Committee.
2. There are herewith delivered to the Custodian, and the
Custodian hereby acknowledges receipt of, certificates representing the Shares,
which certificates have been endorsed in blank or are accompanied by duly
executed stock powers, in each case with all signatures guaranteed by a
commercial bank or trust company or by a member firm of the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. or a member of the National
Association of Securities Dealers, Inc. Such certificates are to be held by
the Custodian for the account of the Selling
A-1
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Shareholders and are to be disposed of by the Custodian in accordance with this
Agreement.
3. The Custodian is authorized and directed by the Selling
Shareholders:
(a) To hold the certificates representing the Shares
delivered by the Selling Shareholders in its custody;
(b) On or immediately prior to the statement date for any
Shares sold pursuant to the Registration Statement (the "Closing
Date"), to cause such Shares to be transferred on the books of the
Company into such names as the Custodian shall have been instructed by
the representatives (the "Representatives") of the several U.S.
Underwriters (the "U.S. Underwriters") and the Managers (the
"Managers") of the several International Underwriters (the
"International Underwriters"); to cause to be issued, against
surrender of the certificates for the Shares, a new certificate or
certificates for such Shares, free of any restrictive legend,
registered in such name or names; to deliver such new certificates
representing such Shares to the Representatives and the Managers, as
instructed by the Representatives and the Managers on the Closing Date
for their account or accounts against full payment therefor; and to
give receipt for such payment; and
(c) To disburse such payments in the following manner: (i) to
itself, as agent for the Selling Shareholders, a reserve amount to be
designated in writing by the Committee from which amount the Custodian
shall pay, as soon as reasonably practicable, (A) the Selling
Shareholders' proportionate share of all expenses of the offering and
sale of the Shares as provided in the Underwriting Agreement by and
among the Company, the Selling Shareholders and the Representatives,
(B) its reasonable disbursements for acting hereunder with respect to
the sale of the Shares and (C) any applicable stock transfer taxes;
and (ii) to each Selling Shareholder, pursuant to the written
instructions of the Committee, (A) on the Closing Date, a sum equal to
the share of the proceeds to which such Selling Shareholder is
entitled, as determined by the Committee, less the reserve amount
designated by any Committee, and (B) promptly after all proper
charges, disbursements, costs and expenses shall have been paid, any
remaining balance of the amount reserved under clause (i) above.
Before making any payment from the amount reserved under clause
A-2
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(i) above, except payments made pursuant to subclause (B) of clause
(ii) above, the Custodian shall request and receive the written
approval of the Committee. To the extent the expenses referred to in
subclause (A) of clause (i) above exceed the amount reserved, the
Selling Shareholders shall remain liable for their proportionate share
of such expenses.
4. Subject in each case to the indemnification obligations
set forth in Section 7, in the event Shares of any Selling Shareholder are not
sold prior to June 30, 1996, the Custodian shall deliver to such Selling
Shareholder as soon as practicable after the earlier to occur of such date and
termination of the offering of the Shares, certificates representing such
Shares deposited by such Selling Shareholder. Certificates returned to any
Selling Shareholder shall be returned with any related stock powers, and any
new certificates issued to the Selling Shareholders with respect to such Shares
shall bear any appropriate legend reflecting the unregistered status thereof
under the Act.
5. This Agreement is for the express benefit of the Company
and the Selling Shareholders, the U.S. Underwriters, the Representatives, the
International Underwriters and the Managers. The obligations and
authorizations of the Selling Shareholders hereunder are irrevocable and shall
not be terminated by any act of any Selling Shareholder or by operation of law,
whether by the death, disability, or incapacity of any Selling Shareholder or
by the occurrence of any other event or events, and if after the execution
hereof any Selling Shareholder shall die or become disabled or incapacitated,
or if any other event or events shall occur before the delivery of such Selling
Shareholder's Shares hereunder to the Representatives and the Managers, such
Shares shall be delivered to the Representatives and the Managers in accordance
with the terms and conditions of this Agreement, as if such event had not
occurred, regardless of whether or not the Custodian shall have received notice
of such event.
6. Until payment of the purchase price for the Shares has
been made to the Selling Shareholders or to the Custodian, the Selling
Shareholders shall remain the owner of (and shall retain the right to receive
dividends and distributions on, and to vote) the number of Shares delivered by
each of them to the Custodian hereunder. Until such payment in full has been
made or until the offering of Shares has been terminated, each Selling
Shareholder agrees that it will not give, assign, sell, agree to sell, pledge,
hypothecate, grant any lien on, transfer, or otherwise dispose of the Shares or
any interests therein.
X-0
00
0. The Custodian shall assume no responsibility to any person
other than to deal with the certificates for the Shares and the proceeds from
the sale of the Shares represented thereby in accordance with the provisions
hereof, and the Selling Shareholders, severally and not jointly, hereby agree
to indemnify the Custodian for and to hold the Custodian harmless against any
and all losses, claims, damages or liabilities incurred on its part arising out
or in connection with it acting as the Custodian pursuant hereto, as well as
the cost and expenses of investigating and defending any such losses, claims,
damages or liabilities, except to the extent such losses, claims, damages or
liabilities are due to the negligence or bad faith of the Custodian. The
Selling Shareholders agree that the Custodian may consult with counsel of its
own choice (who may be counsel for the Company), and the Custodian shall have
full and complete authorization and protection for any action taken or suffered
by the Custodian hereunder in good faith and in accordance with the opinion of
such counsel.
8. Each of the Selling Shareholders, jointly and not
severally, hereby represents and warrants that: (a) it has, and at the time of
delivery of its Shares to the Representatives and the Managers it will have,
full power and authority to enter into this Agreement and the Power of
Attorney, to carry out the terms and provisions hereof and thereof and to make
all of the representations, warranties and agreements contained herein and
therein; and (b) this Agreement and the Power of Attorney are the valid and
binding agreements of such Selling Shareholder and are enforceable against such
Selling Shareholder in accordance with their respective terms.
9. The Custodian's acceptance of this Agreement by the
execution hereof shall constitute an acknowledgment by the Custodian of the
authorization herein conferred and shall evidence the Custodian's agreement to
carry out and perform the Agreement in accordance with its terms.
10. The Custodian shall be entitled to act and rely upon any
statement, request, notice or instruction with respect to this Agreement given
to it on behalf of each of the Selling Shareholders if the same shall be made
or given to the Custodian by the Committee, not only as to the authorization,
validity and effectiveness thereof, but also as to the truth and acceptability
of any information therein contained.
11. This Agreement may be executed in two or more
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument. Execution by the Custodian of one counterpart hereof
and its delivery thereof to the Committee
A-4
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shall constitute the valid execution of this Agreement by the Custodian.
12. This Agreement shall be binding upon the Custodian, each
of the Selling Shareholders and the respective heirs, legal representatives,
distributees, successors and assigns of the Selling Shareholders.
13. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK.
14. Any notice given pursuant to this Agreement shall be
deemed given if in writing and delivered in person, or if given by telephone or
telegraph if subsequently confirmed by letter: (i) if to a Selling
Shareholder, to his address set forth in Annex I; and (ii) if to the Custodian,
to it at ______________.
* * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
---------------------------------
---------------------------------,
as Custodian
THE SELLING SHAREHOLDERS LISTED
IN ANNEX I HERETO:
By: The Committee
By:
-------------------------------
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Annex I
-------
Names and Address of
Selling Shareholders Shares to be Sold
-------------------- -----------------
-----------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
=================
A-7
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EXHIBIT C
SUBSIDIARIES
------------
C-1
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EXHIBIT D
____________ ___, 1995
PAINEWEBBER INCORPORATED
ALEX. XXXXX & SONS INCORPORATED
X.X. XXXXXXX & SONS, INC.
As Representatives of the several U.S. Underwriters
c/o PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PAINEWEBBER INTERNATIONAL (U.K.) LTD.
ALEX. XXXXX & SONS INCORPORATED
X.X. XXXXXXX & SONS, INC.
As Managers of the several International Underwriters
c/o PaineWebber International (U.K.) Ltd.
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX Xxxxxxx
Dear Sirs:
In consideration of the agreement of (i) the several U.S.
Underwriters for which PaineWebber Incorporated, Alex. Xxxxx & Sons
Incorporated, and X.X. Xxxxxxx & Sons, Inc. (the "Representatives") intend to
act as Representatives, and (ii) the several International Underwriters, for
which PaineWebber International (U.K.) Ltd., Alex. Xxxxx & Sons Incorporated,
and X.X. Xxxxxxx & Sons, Inc. (the "Managers") intend to act as Managers, to
underwrite a proposed public offering (the "Offering") of 3,778,000 shares of
Common Stock, without par value (the "Common Stock") of Primark Corporation, a
Michigan corporation, as contemplated by a registration statement with respect
to such shares filed with the Securities and Exchange Commission on Form S-3
(Registration No. 33-_______), the undersigned hereby agrees that the
undersigned will not, for a period of 180 days after the commencement of the
public offering of such shares, without the prior written consent of the
Representatives and the Managers, (i) directly or indirectly assign, transfer,
offer, sell, agree to sell, hypothecate, or otherwise dispose of any shares of
Common Stock, or securities convertible into or exchangeable for or any rights
to acquire shares of Common Stock, or (ii) in any way reduce his risk of
ownership or investment in any shares of Common Stock.
Very truly yours,
By:
------------------------------
Print Name:
----------------------
D-1
63
EXHIBIT E
Form of Opinion of
Counsel to the Company
and the Selling Shareholders
----------------------------
Relating to the Issuance and Sale by the Company:
-------------------------------------------------
1. The Company and each of its subsidiaries is a corporation
duly organized, validly existing and, except for subsidiaries organized under
the laws of England and Wales or Hong Kong [OTHERS?], in good standing under
the laws of the jurisdiction of its incorporation, is duly licensed or
qualified to do business and is in good standing as a foreign corporation in
all jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such license or
qualification necessary, has full corporate power and authority to conduct all
the activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration Statement
and the Prospectus and has all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to carry on its business
as contemplated in the Prospectus. The Company is the sole record and
beneficial owner of all of the capital stock of each of its subsidiaries.
2. All of the outstanding shares of Common Stock have been,
and the Shares when paid for by the U.S. Underwriters and the International
Underwriters in accordance with the terms of the Agreement and the
International Underwriting Agreement, respectively, will be, duly authorized,
validly issued, fully paid and nonassessable and will not be subject to any
preemptive or similar right.
3. No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is
required in connection with the authorization, issuance, transfer, sale or
delivery of the Shares by the Company, in connection with the execution,
delivery and performance of the Agreement or the International Underwriting
Agreement by the Company or in connection with the taking by the Company of any
action contemplated thereby, except such as have been obtained under the Act
and the Rules and Regulations and such as may be required by the by-laws and
rules of the NASD in connection with the purchase and distribution by the
Underwriters of the Shares to be sold by the Company. All references in this
opinion to the Agreement and the International Underwriting Agreement shall
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include the U.S. Price Determination Agreement and the International Price
Determination Agreement, respectively.
4. The authorized and outstanding capital stock of the
Company is as set forth in the Registration Statement and the Prospectus. The
description of the Common Stock contained in or incorporated by reference in
the Prospectus conforms to the terms thereof contained in the Company's
certificate of incorporation.
5. The Registration Statement and the Prospectus (including
any documents incorporated by reference into the Prospectus, at the time they
were filed) comply or complied in all material respects as to form with the
requirements of the Act, the Exchange Act, the Exchange Act Rules and
Regulations and the Rules and Regulations (except that we express no opinion as
to financial statements, schedules and other financial and statistical data
contained in the Registration Statement or the Prospectus or incorporated by
referenced therein).
6. We have participated in the preparation of the
Registration Statement and the Prospectus and nothing has come to our attention
which has caused us to believe that, as of the Effective Date, as of the Rule
462 Effective Date, as of the Closing Date, and as of the Option Closing Date,
the Registration Statement, or any amendment thereto, contained or contains any
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that any Prospectus or any amendment or supplement thereto
including and documents incorporated by reference into the Prospectus, at the
time such Prospectus was issued, at the time any such amended or supplemented
Prospectus was issued, at the Closing Date and the Option Closing Date,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not
misleading (except that we express no opinion as to financial statements,
schedules and other financial or statistical data contained in the Registration
Statement or the Prospectus or incorporated by reference therein).
7. The Registration Statement has become effective under the
Act and, to the best of our knowledge, no order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that purpose
has been instituted or is threatened, pending or contemplated.
8. We have reviewed all contracts, instruments or other
documents referred to in the Registration Statement and the Prospectus and such
contracts, instruments or other documents are fairly summarized or disclosed
therein, and filed as exhibits
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thereto as required, and, after due inquiry, we do not know of any contracts,
instruments or other documents required to be so summarized or disclosed or
filed or required to be filed under the Exchange Act if upon such filing they
would be incorporated, in whole or in part, by reference therein which have not
been so summarized or disclosed or filed.
9. All descriptions in the Prospectus of statutes,
regulations or legal or governmental proceedings are accurate and fairly
present the information required to be shown.
10. The Company has full corporate power and authority to
enter into the Agreement and the International Underwriting Agreement, and each
of the Agreement and the International Underwriting Agreement has been duly
authorized, executed and delivered by the Company, is a valid and binding
agreement of the Company and, except for the indemnification and contribution
provisions thereof, as to which we express no opinion, and subject to
applicable bankruptcy laws, is enforceable against the Company in accordance
with the terms thereof.
11. The execution and delivery of the Agreement and the
International Underwriting Agreement by the Company, the consummation by the
Company of the transactions therein contemplated and the compliance by the
Company with the terms of the Agreement and the International Underwriting
Agreement do not and will not result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default or
result in the acceleration of any obligation under, the charter documents,
by-laws, or other governing instruments of the Company or any of its
subsidiaries, any indenture, mortgage, deed of trust, voting trust agreement,
loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument known to us to
which the Company or any of its subsidiaries is a party or by which it or any
of its subsidiaries or any of its or any of its subsidiaries' properties is
bound or affected, or any judgment, ruling decree, order, statute, rule or
regulation of any court or other governmental agency or body applicable to the
business or properties of the Company or any of its subsidiaries (except that
we express no opinion as to the securities or Blue Sky laws of any jurisdiction
other than the United States).
12. Delivery of certificates for the Shares will transfer
valid and marketable title thereto to each U.S. Underwriter and International
Underwriter that has purchased such Shares in good faith and we are not aware,
after the inquiry, of
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any adverse claim with respect thereto, and such Shares are free and clear of
all liens, encumbrances and claims.
13. We known of no actions, suits or proceedings (including
compliance audits and investigations) pending or, to our knowledge, threatened
against or affecting the Company or any of its subsidiaries or the business,
properties, business prospects, condition (financial or otherwise) or results
of operations of the Company or any of its subsidiaries, or any of its or their
respective officers or directors in their capacities as such, before or by any
Federal, state or foreign court, commission, regulatory body, administrative
agency or other governmental body, wherein an unfavorable ruling, decision or
finding might materially and adversely affect the Company or any of its
subsidiaries or its business, properties, business prospects, condition
(financial or otherwise) or results of operations, except as set forth in or
contemplated by the Registration Statement and the Prospectus.
14. To the best of our knowledge, neither the Company nor any
of its subsidiaries is in violation of its charter documents, by-laws or other
governing instruments or in default (nor has an event occurred which with
notice or lapse of time or both would constitute a default or acceleration) in
the performance of any obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument known to us to which the company or
any of its subsidiaries is a party or by which it or any of its subsidiaries or
its or any of its subsidiaries' properties is bound or affected, and neither
the Company nor any of its subsidiaries is in violation of any judgment,
ruling, decree, order, franchise, license or permit known to us or any statute,
rule or regulation of any court or other governmental agency or body applicable
to the business or properties of the Company or any of its subsidiaries which
violation or default might have a material adverse effect on the business,
properties, business prospects, condition (financial or otherwise) or results
of operation of the Company or any of its subsidiaries.
15. The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act
of 1940, as amended.
16. The Shares have been duly authorized for listing by the
New York and Pacific Stock Exchanges upon official notice of issuance.
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00. All offers and sales by the Company and each of its
subsidiaries of their securities, including but not limited to their capital
stock and options to purchase their capital stock, prior to the date hereof
were made in compliance with the Act, the Rules and Regulations, and all other
federal, state, and foreign laws and regulations.
Relating to the Sale by the Selling Shareholders:
-------------------------------------------------
18. Each of the Selling Shareholders has full power and
authority to enter into the Agreement, the International Underwriting Agreement
and the Agreement and Power of Attorney and to sell, transfer and deliver such
Shares pursuant to the Agreement and the Agreement and Power of Attorney. All
authorizations and consents necessary for the execution and delivery of the
Agreement, the International Underwriting Agreement and the Agreement and Power
of Attorney on behalf of each of the Selling Shareholders has been given. The
delivery of the Shares on behalf of the Selling Shareholders pursuant to the
terms of the Agreement and the International Underwriting Agreement and payment
therefor by the U.S. Underwriters and the International Underwriters will
transfer good and marketable title to the Shares to the several U.S.
Underwriters and International Underwriters purchasing the Shares, free and
clear of all liens, encumbrances and claims whatsoever.
19. Each of the Agreement, the International Underwriting
Agreement and the Agreement and Power of Attorney has been duly authorized,
executed and delivered by or on behalf of each of the Selling Shareholders, is
a valid and binding agreement of each Selling Shareholder and, except for the
indemnification and contribution provisions of the Agreement and the
International Underwriting Agreement and subject to applicable bankruptcy laws,
the Agreement, the International Underwriting Agreement and the Agreement and
Power of Attorney are enforceable against each Selling Shareholder in
accordance with the terms thereof.
20. No consent, approval, authorization or order of, or any
filing or declaration with, any court of governmental agency or body is
required in connection with the authorization, issuance, transfer, sale or
delivery of the Shares by or on behalf of the Selling Shareholders, in
connection with the execution, delivery and performance of the Agreement, the
International Underwriting Agreement and the Agreement and Power of Attorney by
or on behalf of the Selling Shareholders or in connection with the taking by or
on behalf of the Selling Shareholders of any action contemplated thereby,
except such as have been obtained under the Act or the Rules and Regulations
and such as may be required by the by-laws and rules of the NASD in connection
with the purchase and
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distribution by the Underwriters of the Shares to be sold by the Selling
Shareholders.
21. The execution and delivery of the Agreement, the
International Underwriting Agreement and the Agreement and Power of Attorney by
the Selling Shareholders, the consummation by the Selling Shareholders of the
transactions therein contemplated and the compliance by the Selling
Shareholders with the terms thereof do not and will not result in the creation
or imposition of any lien, charge or encumbrance upon any of the assets of the
Selling Shareholders pursuant to the term or provisions of, or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under or result in the acceleration of any obligation under, the
charter documents, by-laws, or other governing instruments of any corporate
Selling Shareholder, any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument known to us to
which any Selling Shareholder is a party or by which it or any of its
properties is bound or affected, or any statute, judgment, ruling decree,
order, rule or regulation of any court or other governmental agency or body
applicable to any Selling Shareholder (except that we express no opinion to the
securities or Blue Sky laws of any jurisdiction other than the United States).
22. There are no transfer or similar taxes payable in
connection with the sale and delivery of the Shares by the Selling Shareholders
to the several U.S. Underwriters and International Underwriters, except as
specified in such opinion.
In rendering the foregoing opinions, counsel may rely, to the
extent they deem such reliance proper, on the opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to Underwriters' counsel as to matters governed by the laws of
jurisdictions other than the United States, and as to matters of fact, upon
certificates of officers of the Company and of government officials; provided
that such counsel shall state that the opinion of any other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, such counsel and
the Underwriters are justified in relying on such opinions of other counsel.
Copies of all such opinions and certificates shall be furnished to counsel to
the Underwriters on the Closing Date.
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