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EXHIBIT 10.53
Quintiles Transnational Corp.
Common Stock, $.01 par value
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UNDERWRITING AGREEMENT
(U.S. VERSION)
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March 6, 1997
Xxxxxxx, Xxxxx & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Quintiles Transnational Corp., a North Carolina corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 1,132,000 shares of Common Stock, $.01 par
value ("Stock") of the Company and the shareholders of the Company named in
Schedule II hereto (the "Selling Shareholders") propose, subject to the terms
and conditions stated herein, to sell to the Underwriters an aggregate of
2,708,000 shares and, in the case of certain Selling Shareholders identified
with an asterisk in Schedule II hereto and at the election of the Underwriters,
up to 576,000 additional shares of Stock. The aggregate of 3,840,000 shares to
be sold by the Company and the Selling Shareholders hereto is herein called the
"Firm Shares" and the aggregate of 576,000 additional shares to be sold by the
Selling Shareholders identified with an asterisk in Schedule II hereto is
herein called the "Optional Shares". The Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares".
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It is understood and agreed to by all parties that the Company and
the Selling Shareholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Shareholders of up to a total of 1,104,000 shares of Stock (the
"International Shares"), including the overallotment option thereunder, through
arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom Xxxxxxx Xxxxx International, Xxxxxx
Xxxxxxx & Co. International Limited, Xxxxx Xxxxxx Inc. and Xxxxxxx Xxxxx &
Company, L.L.C. are acting as lead managers. Anything herein or therein to the
contrary notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Stock between the two
syndicates. Two forms of prospectus are to be used in connection with the
offering and sale of shares of Stock contemplated by the foregoing, one
relating to the Shares hereunder and the other relating to the International
Shares. The latter form of prospectus will be identical to the former except
for certain substitute pages as included in the registration statement and
amendments thereto as mentioned below. Except as used in Sections 2, 3, 4, 9
and 11 herein, and except as the context may otherwise require, references
hereinafter to the Shares shall include all the shares of Stock which may be
sold pursuant to either this Agreement or the International Underwriting
Agreement, and references herein to any prospectus whether in preliminary or
final form, and whether as amended or supplemented, shall include both the U.S.
and the international versions thereof.
1. (a) The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(i) A registration statement on Form S-3
(File No. 333-21393) (the "Initial Registration Statement") in
respect of the Shares has been filed with the Securities and
Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered to you, and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus
contained therein, delivered to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement increasing the size of the
offering, filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing
(the "Rule 462(b) Registration Statement"), no other document with
respect to the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement or
document incorporated by reference therein has heretofore been filed
with the Commission; and no stop order suspending the effectiveness
of the Initial Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant
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to Rule 424(a) of the rules and regulations of the Commission under
the Act is hereinafter called a "Preliminary Prospectus"); the
various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, including all exhibits thereto and
including (A) the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof and deemed by virtue
of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective and (B) the
documents incorporated by reference in the prospectus contained in
the Initial Registration Statement at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement became or hereafter becomes
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement became effective, are hereinafter
collectively called the "Registration Statement"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as
of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in
the Registration Statement;
(ii) No order preventing or suspending the
use of any Preliminary Prospectus has been issued by the Commission,
and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Xxxxxxx, Sachs & Co. expressly for use therein or by a Selling
Shareholder expressly for use in the preparation of the answers
therein to Item 7 of Form S-3;
(iii) The documents incorporated by
reference in the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange
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Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder 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 to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein;
(iv) The Registration Statement conforms,
and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as
of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxxx, Sachs &
Co. expressly for use therein or by a Selling Shareholder expressly
for use in the preparation of the answers therein to Item 7 of Form
S-3;
(v) Other than as set forth or
contemplated in the Prospectus, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company and its subsidiaries, taken as a
whole, or any material adverse change, or any development involving
a prospective material adverse change, in the condition (financial
or otherwise) or the earnings, business or operations of the Company
and its subsidiaries, taken as a whole;
(vi) The Company and each of its
subsidiaries possesses all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, and
neither the Company nor any such subsidiary has received any notice
of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the
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Company and its subsidiaries, taken as a whole, except as set forth
or contemplated by the Prospectus;
(vii) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of North Carolina, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. Each
Significant Subsidiary (as defined below) of the Company has been
duly incorporated or otherwise formed as a non-corporate entity, is
validly existing as a corporation or other entity, as the case may
be, in good standing under the laws of the jurisdiction of its
organization, with corporate or other organizational power and
authority to own its properties and to conduct its business as
described in the Prospectus and has been duly qualified as a foreign
corporation or other entity, as the case may be, for the transaction
of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole. As used in this Agreement, the term "Significant
Subsidiary" shall have the meaning set forth for the term
"Significant Subsidiary" in Rule 1-02(w) of Regulation S-X
promulgated pursuant to the Securities Act;
(viii) The Company has an authorized
capitalization as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and non-assessable and conform to the
description of the Stock contained in the Prospectus; and all of the
issued shares of capital stock of each Significant Subsidiary of the
Company have been duly authorized and validly issued, are fully paid
and non-assessable and (except for directors' qualifying shares and
except as set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(ix) The unissued Shares to be issued and
sold by the Company to the Underwriters hereunder and under the
International Underwriting Agreement have been duly authorized and,
when issued and delivered against payment therefor as provided
herein, will be validly issued and fully paid and non-assessable and
will conform to the description of the Stock contained in the
Prospectus;
(x) The issue and sale of the Shares to
be sold by the Company hereunder and under the International
Underwriting Agreement, the compliance by the Company with all of
the provisions of this Agreement and the International Underwriting
Agreement and the consummation of the transactions herein and
therein contemplated will not contravene any provision of applicable
law or the
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Amended and Restated Articles of Incorporation or Amended and
Restated Bylaws of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the issue and sale
of the Shares by the Company or the consummation by the Company of
the transactions contemplated by this Agreement and the
International Underwriting Agreement except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(xi) Other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xii) Neither the Company nor any of its
subsidiaries has taken, directly, any action which was designed to
or which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Stock;
(xiii) The Company is not and, after giving
effect to the offering and sale of the Shares, will not be an
"investment company" "unit investment trust", "closed-end investment
company", "face-amount certificate company" or an entity
"controlled" by an "investment company" that is required to be
registered under Section 8 of the United States Investment Company
Act of 1940, as amended (the "Investment Company Act");
(xiv) The Company and its subsidiaries (A)
are in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of
human health or safety, the environment or any hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental
Laws"), (B) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (C) are in compliance with all terms
and conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
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(xv) The Company has conducted a review of
the effect of Environmental Laws on the current and former
businesses, operations and properties of the Company and its
subsidiaries, in the course of which it identified and evaluated
potential associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for
clean-up or closure of any property, or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities or any potential liabilities to
third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(xvi) The use of the proceeds from the sale
of the Securities will not violate or result in a violation of
Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations G, T, U, and
X of the Board of Governors of the Federal Reserve System;
(xvii) Ernst & Young LLP, who have certified
certain financial statements of the Company and its subsidiaries,
are, to the best of the Company's knowledge, independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(xviii) This Agreement has been duly
authorized, executed and delivered by the Company;
(xix) There are no contracts, agreements or
understandings between the Company and any person granting such
person the right (A) to require the Company to file a registration
statement under the Securities Act with respect to any securities of
the Company, except as disclosed in the Registration Statement or
(B) to require the Company to include securities in the securities
registered pursuant to the Registration Statement, except any such
right that has been effectively waived or satisfied by the inclusion
of securities in the Registration Statement;
(xx) The statements set forth in the
Prospectus under the caption "Description of Capital Stock", insofar
as they purport to constitute a summary of the terms of the Stock,
are accurate, complete and fair; and
(xxi) Certain of the directors, officers
and shareholders of the Company listed in Schedule III hereto who
are not Selling Shareholders have each entered into a written
agreement with the Company (each such agreement, a "Lock-up
Agreement"), and executed originals of each Lock-up Agreement have
been delivered to you.
(b) Each of the Selling Shareholders severally
represents and warrants to, and agrees with, each of the Underwriters and the
Company that:
(i) All consents, approvals,
authorizations and orders necessary for the execution and delivery by
such Selling Shareholder of this Agreement, the
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International Underwriting Agreement, the Power of Attorney and the
Custody Agreement hereinafter referred to, and for the sale and
delivery of the Shares to be sold by such Selling Shareholder
hereunder and under the International Underwriting Agreement, have
been obtained; and such Selling Shareholder has full right, power
and authority to enter into this Agreement, the International
Underwriting Agreement, the Power of Attorney and the Custody
Agreement and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Shareholder hereunder and under the
International Underwriting Agreement;
(ii) The sale of the Shares to be sold by
such Selling Shareholder hereunder and under the International
Underwriting Agreement and the compliance by such Selling
Shareholder with all of the provisions of this Agreement, the
International Underwriting Agreement, the Power of Attorney and the
Custody Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
such Selling Shareholder is a party or by which such Selling
Shareholder is bound, or to which any of the property or assets of
such Selling Shareholder is subject, nor will such action result in
any violation of the provisions of the Certificate of Incorporation
and By-laws or other governing instrument of such Selling
Shareholder if such Selling Shareholder is a corporation, the
Partnership Agreement of such Selling Shareholder if such Selling
Shareholder is a partnership, the governing trust agreement or other
governing instrument of such Selling Shareholder if such Selling
Shareholder is a trust, or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over such Selling Shareholder or the property of such
Selling Shareholder;
(iii) Such Selling Shareholder has, and
immediately prior to each Time of Delivery (as defined in Section 4
hereof) such Selling Shareholder will have, good and valid 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, equities or claims; and, upon delivery of
such Shares and payment therefor pursuant hereto and thereto, good
and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters or the International Underwriters, as the case may be;
(iv) During the period beginning from the
date that is 30 days prior to the First Time of Delivery and
continuing to and including the date 90 days after the date of the
Prospectus, such Selling Shareholder shall not offer, sell, contract
to sell or otherwise dispose of, except as provided hereunder or
under the International Underwriting Agreement, any shares of Common
Stock or any securities of the Company that are substantially
similar to the Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the
right to receive, Stock or any such substantially similar securities
(other than pursuant to employee stock option plans existing on, or
upon the
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conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior
written consent of Xxxxxxx, Xxxxx & Co. and the Company;
(v) Such Selling Shareholder has not
taken and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of the Shares;
(vi) To the extent that any statements or
omissions made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto
are made in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for
use therein, such Preliminary Prospectus and the Registration
Statement did, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus, when
they become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder
and will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vii) In order to document the
Underwriters' compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated, such Selling
Shareholder will deliver to you prior to or at the First Time of
Delivery (as hereinafter defined) a properly completed and executed
United States Treasury Department Form W-8 or Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(viii) Certificates in negotiable form
representing all of the Shares to be sold by such Selling
Shareholder hereunder and under the International Underwriting
Agreement have been placed in custody under a Custody Agreement, in
the form heretofore furnished to you (the "Custody Agreement"), duly
executed and delivered by such Selling Shareholder to First Union
National Bank of North Carolina, as custodian (the "Custodian"), and
such Selling Shareholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto,
and each of them, as such Selling Shareholder's attorneys-in-fact
(the "Attorneys-in-Fact") with authority to execute and deliver this
Agreement and the International Underwriting Agreement on behalf of
such Selling Shareholder, to determine the purchase price to be paid
by the Underwriters and the International Underwriters to the
Selling Shareholders as provided in Section 2 hereof, to authorize
the delivery of the Shares to be sold by such Selling Shareholder
hereunder and otherwise to act on behalf of such Selling Shareholder
in connection
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with the transactions contemplated by this Agreement, the
International Underwriting Agreement and the Custody Agreement;
(ix) The Shares represented by the
certificates held in custody for such Selling Shareholder under the
Custody Agreement are subject to the interests of the Underwriters
hereunder and the International Underwriters under the International
Underwriting Agreement; the arrangements made by such Selling
Shareholder for such custody, and the appointment by such Selling
Shareholder of the Attorneys-in-Fact by the Power of Attorney, are
to that extent irrevocable; the obligations of the Selling
Shareholders hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling
Shareholder or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such
estate or trust, or in the case of a partnership or corporation, by
the dissolution of such partnership or corporation, or by the
occurrence of any other event; if any individual Selling Shareholder
or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such
partnership or corporation should be dissolved, or if any other such
event should occur, before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on
behalf of the Selling Shareholders in accordance with the terms and
conditions of this Agreement, of the International Underwriting
Agreement and of the Custody Agreements; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution
or other event;
(x) If such Selling Shareholder was
previously a shareholder of Innovex Limited ("Innovex") and became a
shareholder of the Company as a result of receiving shares of stock
of the Company in exchange for such Selling Shareholder's shares of
Innovex in connection with the acquisition of Innovex by the
Company, pursuant to the Share Exchange Agreement, dated as of
October 4, 1996 by and among the Company, Innovex and the
shareholders of Innovex (the "Exchange Agreement"), that all of the
Shares being sold by such Selling Shareholder hereunder and under
the International Underwriting Agreement were received pursuant to
the Exchange Agreement or obtained pursuant to the exercise of
options to purchase Common Stock received pursuant to the Exchange
Agreement and not otherwise; and
(xi) Any and all rights in the nature of
those described in Section 1(a)(xix) hereof to which such Selling
Shareholder is entitled are satisfied in full with respect to the
registration and public offering contemplated by this Agreement and
the International Underwriting Agreement by the inclusion of such
Selling Shareholder's shares of Common Stock in the Registration
Statement, and such Selling Shareholder hereby waives any and all
rights whatsoever to have any additional securities included in the
Registration Statement.
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2. Subject to the terms and conditions herein set forth, (a)
each Selling Shareholder agrees that the purchase price per share at which the
Underwriters will purchase Shares from such Selling Shareholder (as set forth
in clause (b) below) shall be the same as the purchase price per share at which
the Company sells shares to be purchased by the Underwriters from the Company
hereunder, (b) the Company and each of the Selling Shareholders agree,
severally and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company
and each of the Selling Shareholders, at a purchase price per share of $60.355,
the number of Firm Shares (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying the aggregate number of Firm Shares to be
sold by the Company and each of the Selling Shareholders as set forth opposite
their respective names in Schedule II hereto by a fraction, the numerator of
which is the aggregate number of Firm Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased by all of the Underwriters from the Company and all of the Selling
Shareholders hereunder and (c) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as
provided below, each of the Selling Shareholders identified with an asterisk in
Schedule II hereto, agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from each of the Selling Shareholders, at the purchase price per
share set forth in clause (b) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I
hereto and the denominator of which is the maximum number of Optional Shares
that all of the Underwriters are entitled to purchase hereunder.
The Selling Shareholders identified with an asterisk in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 576,000 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares shall be made in proportion to the maximum number of
Optional Shares to be sold by each such Selling Shareholder as set forth in
Schedule II hereto. Any such election to purchase Optional Shares may be
exercised only by written notice from you to the Attorneys-in-Fact, given
within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you
but in no event earlier than the First Time of Delivery (as defined in Section
4 hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
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3. Upon the authorization by you of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as Xxxxxxx, Xxxxx & Co. may request upon at least two
full business days' prior notice to the Company and the Selling Shareholders
shall be delivered by or on behalf of the Company and the Selling Shareholders
to Xxxxxxx, Sachs & Co., for the account of such Underwriter, against payment
by or on behalf of such Underwriter of the purchase price therefor in United
States dollars by wire transfer of immediately available funds to an account or
accounts designated by the Custodian and the Company. The Company and the
Selling Shareholders will cause the certificates representing the Shares to be
made available for checking and packaging at least one full business day prior
to the Time of Delivery (as defined below) with respect thereto at the office
of Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm Shares, 9:30 a.m., New York City time, on March 12,
1997 or such other time and date as Xxxxxxx, Sachs & Co., the Company and the
Selling Shareholders may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York City time, on the date specified by
Xxxxxxx, Xxxxx & Co. in the written notice given by Xxxxxxx, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as Xxxxxxx, Xxxxx & Co., the Company and the Selling Shareholders may
agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "First Time of Delivery", such time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein called the
"Second Time of Delivery", and each such time and date for delivery is herein
called a "Time of Delivery".
(b) The documents to be delivered at each Time of
Delivery by or on behalf of the parties hereto pursuant to Section 7 hereof,
including the cross-receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 7(k) hereof, will be
delivered at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (the "Closing Location"), and the Shares will be delivered at
the Designated Office, all at each Time of Delivery. A meeting will be held at
the Closing Location at 2:00 p.m., New York City time, on the New York Business
Day next preceding each Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section
4, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by
you and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's
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close of business on the second business day following the execution
and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the last Time of Delivery which shall be
reasonably objected to by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus
or any amended Prospectus has been filed and to furnish you copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Shares; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or prospectus or suspending
any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action
as you may reasonably request to qualify the Shares for offering and
sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 5:00 p.m., New York City time, on the
New York Business Day next succeeding the date of this Agreement and
from time to time, to furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required by law at
any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of
the Shares and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act or the Exchange Act, to notify you and upon your
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request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required by law to deliver a prospectus in connection
with sales of any of the Shares at any time nine months or more
after the time of issue of the Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its
securityholders as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Company, Rule 158);
(e)(i) During the period beginning from the date that
is 30 days prior to the First Time of Delivery and continuing to and
including the 90th day after the date of the Prospectus, the Company
shall not, directly or indirectly, offer, sell, contract to sell or
otherwise dispose of any shares of Common Stock, any securities of
the Company which are substantially similar to the Common Stock,
including but not limited to any other securities that are
convertible into or exchangeable for, or that represent the right to
receive, any shares of Common Stock, or any such substantially
similar securities, other than (A) the Shares to be sold by the
Company pursuant to this Agreement and the International Underwriting
Agreement (B) shares of Common Stock issued pursuant to the Company's
stock option plans or agreements existing as of the date hereof, (C)
shares of Common Stock issued upon the conversion of securities of
the Company outstanding as of the date hereof, or (D) shares of
Common Stock issued as consideration for acquisitions of businesses,
properties or assets, provided, however, that each offeree, purchaser
or other transferee of any shares of Common Stock so issued in
connection with any such acquisition shall agree in writing for the
benefit of the Underwriters and the International Underwriters, in
form and substance satisfactory to Xxxxxxx, Sachs & Co., that all
such shares of Common Stock shall remain subject to the restrictions
of this Section 5(e); and (ii) that it will use best efforts to cause
each person who has entered into a Lock-up Agreement to comply
therewith, will not grant any waivers or consents to non-compliance
therewith and will enforce its rights under each such agreement, in
each case unless and to the extent that it shall have obtained the
prior written consent of Xxxxxxx, Xxxxx & Co.;
(f) To furnish to its shareholders as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income,
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shareholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public
accountants);
(g) During a period of five years from the effective
date of the Registration Statement, to furnish to you, upon request,
copies of any reports mailed to stockholders, together with the
exhibits thereto, and copies of all reports filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed, together with the exhibits
thereto;
(h) To use the net proceeds received by it from the
sale of the Shares pursuant to this Agreement and the International
Underwriting Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) To use its best efforts to list for quotation
the Shares on the National Association of Securities Dealers
Automated Quotations National Market System ("NASDAQ"); and
(j) The Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to
the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such
fee pursuant to Rule 111(b) under the Act.
6. The Company and each of the Selling Shareholders, jointly
and severally, covenant and agree with one another and with the several
Underwriters that (a) the Company will pay the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the International
Underwriting Agreement, the Agreement between Syndicates, the Selling
Agreements, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection
with the qualification of the Shares for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky surveys; (iv) all fees and
expenses in connection with listing the Shares on the NASDAQ; and (v) the
filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
and (b) the Company will pay or cause to be paid: (i) the cost of preparing
stock certificates; (ii) the cost and charges of any transfer agent or
registrar; (iii) the fees and expenses of the Attorney-in-Fact and the
Custodian; and (iv) all other costs and expenses incident to the performance of
its obligations hereunder
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which are not otherwise specifically provided for in this Section; and (c) such
Selling Shareholder will pay or cause to be paid all costs and expenses
incident to the performance of such Selling Shareholder's obligations hereunder
which are not otherwise specifically provided for in this Section, including
(i) any fees and expenses of counsel for such Selling Shareholder, (ii) all
expenses and taxes incident to the sale and delivery of the Shares to be sold
by such Selling Shareholder to the Underwriters hereunder. In connection with
Clause (c) (iii) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay
New York State stock transfer tax, and the Selling Shareholder agrees to
reimburse Xxxxxxx, Xxxxx & Co. for associated carrying costs if such tax
payment is not rebated on the day of payment and for any portion of such tax
payment not rebated. It is understood, however, that the Company shall bear,
and the Selling Shareholders shall not be required to pay or to reimburse the
Company for, the cost of any other matters not directly relating to the sale
and purchase of the Shares pursuant to this Agreement, and that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the
Shares to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and of the Selling Shareholders herein are, at and as
of such Time of Delivery, true and correct, the condition that the Company and
the Selling Shareholders shall have performed all of its and their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof; the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission;
and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the
Underwriters, shall have furnished to you such opinion or opinions,
dated such Time of Delivery, with respect to the incorporation of
the Company, the validity of the Shares being delivered by the
Company and certain of the Selling Shareholders at such Time of
Delivery, the Registration Statement, and the Prospectus as well as
such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters. In
rendering such opinions, such counsel may rely as to all matters
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governed by North Carolina law upon the opinion referred to in
subsection (c) of this Section;
(c) Smith, Anderson, Blount, Dorsett, Xxxxxxxx &
Xxxxxxxx, L.L.P., counsel for the Company, shall have furnished to
you their written opinion, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the North Carolina, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly authorized and
validly issued, are fully paid and non-assessable and are not
subject to any preemptive rights under any North Carolina statute or
the Company's Amended and Restated Articles of Incorporation or
Amended and Restated Bylaws; and the Shares conform to the
description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified
as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company and the
significant subsidiaries of the Company, provided that such counsel
shall state that they believe that both you and they are justified
in relying upon such opinions and certificates);
(iv) Each Significant Subsidiary of the
Company has been duly incorporated or otherwise formed as a
non-corporate entity and is validly existing as a corporation or
other entity, as the case may be, in good standing under the laws of
the jurisdiction of its organization; with corporate or other
organizational power and authority to own its properties and to
conduct its business as described in the Prospectus and has been duly
qualified as a foreign corporation or other entity, as the case may
be, for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall state that
they believe that both you and they are justified in relying upon
such opinions and certificates);
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(v) To the best of such counsel's
knowledge and other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Company;
(vii) The issue and sale of the Shares, and
the compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated
will not contravene (A) any provision of applicable federal or North
Carolina law which in such counsel's experience is normally
applicable to transactions of the type contemplated by this
Agreement and the contravention of which would have a material
adverse effect on the business of the Company and its Significant
Subsidiaries, taken as a whole, (B) the Amended and Restated
Articles of Incorporation or Amended and Restated Bylaws of the
Company, (C) any agreement or other instrument filed as an exhibit
to the Registration Statement or incorporated by reference in the
Prospectus, or (D) to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Significant Subsidiary;
(viii) No consent, approval, authorization,
order of, or qualification with, any governmental agency or body is
required for the issue and sale of the Shares or the consummation by
the Company of the transactions contemplated by this Agreement and
the International Underwriting Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(ix) The statements set forth in the
Prospectus under the caption "Description of Capital Stock", insofar
as they purport to constitute a summary of the terms of the Stock,
under the caption "Certain U.S. Federal Tax Considerations for
Non-U.S. Holders of Common Stock", and under the caption
"Underwriting", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate,
complete and fair;
(x) The Company is not an "investment
company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act;
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(xi) The documents incorporated by
reference in the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules therein or other
financial data derived from accounting records, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and they have no reason to believe that any
of such documents (other than the financial statements and related
schedules therein or other financial data derived from accounting
records), when such documents became effective or were so filed, as
the case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed
under the Exchange Act with the Commission (other than the financial
statements and related schedules therein or other financial data
derived from accounting records), an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(xii) (A) The Registration Statement and
the Prospectus and any further amendments and supplements thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein or other
financial data derived from accounting records, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; (B) no facts have come to the attention of
such counsel which lead them to believe that, as of its effective
date, the Registration Statement or any further amendment thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein or other
financial data derived from accounting records, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related
schedules therein or other financial data derived from accounting
records, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein or other
financial data derived from accounting records, as to which such
counsel need express no opinion) contains
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an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (C)
and they do not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration Statement
or the Prospectus which are not filed or incorporated by reference
or described as required.
In rendering their opinions contained in this Section 7(c), such
counsel may state that they express no opinion as to the laws of any
jurisdiction outside the United States. In rendering the opinion contained in
clause (vi) of this Section 7(c), such counsel may rely as to all matters
governed by New York law upon the opinion referred to in subsection (b) of this
Section 7. With respect to the matters referred to in clause (xii)(B) of this
Section 7(c), such counsel may state that their opinion and belief are based
upon their review of the Registration Statement and the Prospectus and any
amendments or supplements thereto made by the Company prior to such Time of
Delivery and participation in conferences and discussions with officers and
other representatives of the Company, representatives of the independent public
accountants for the Company, and representatives of the Underwriters at which
the contents of the Registration Statement and the Prospectus and any
amendments or supplements thereto made by the Company prior to such Time of
Delivery and related matters were discussed and, that, except to the extent set
forth in clause (ix) of this Section 7(c), they do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus and any amendments
or supplements thereto made by the Company prior to such Time of Delivery.
(d) (A) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
each of the Selling Shareholders indicated with footnote (a) or (b)
in Schedule II hereto, shall have furnished to you their written
opinion with respect to each of such Selling Shareholder, dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) A Power of Attorney and a Custody
Agreement have been duly executed and delivered by such Selling
Shareholder and constitute valid and binding agreements of such
Selling Shareholder in accordance with their terms except (a) to the
extent that the enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors'
rights generally and (2) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity);
(ii) This Agreement and the International
Underwriting Agreement have been duly executed and delivered by or
on behalf of such Selling Shareholder; and the execution and
delivery of the Power of Attorney, the Custody Agreement by such
Selling Shareholder, the execution of this Agreement and the
International
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Underwriting Agreement by or on behalf of such Selling Shareholder
and the sale of the Shares to be sold by such Selling Shareholder
hereunder and thereunder and the compliance by such Selling
Shareholder with all of the provisions of this Agreement and the
International Underwriting Agreement, the Power of Attorney and the
Custody Agreement and the consummation of the transactions herein and
therein contemplated will not (a) result in the violation of the
provisions of the Memorandum and Articles of Association or other
constitutional documents of such Selling Shareholder, (b) conflict
with or constitute a breach of, or default under any instrument
identified to such counsel by such Selling Shareholder as material to
such Selling Shareholder's interest in the Shares being sold by such
Selling Shareholder, nor (c) result in a breach or violation by such
Selling Shareholder of the laws of the State of New York, the federal
laws of the United States of America or the laws of England, in each
case, that such counsel believes, are applicable to transactions of
the type contemplated by the Power of Attorney, the Custody
Agreement, this Agreement and the International Underwriting
Agreement, except that such counsel need not express any opinion with
respect to compliance with the registration or filing requirements or
disclosure provisions of state securities laws of the United States
or the securities or blue sky laws of any other jurisdiction.
(iii) No consent or approval of, or other
action by or filing with, any English, United States or New York
State court or administrative or governmental body is required under
the federal laws of the United States of America, the laws of
England or the laws of the State of New York for such Selling
Shareholder to execute and deliver the Power of Attorney, the
Custody Agreement, for the execution and delivery by or on behalf of
such Selling Shareholder of this Agreement and the International
Underwriting Agreement or for such Selling Shareholder to consummate
the transactions provided for herein and therein, except as have
been obtained, and such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or blue sky laws in connection with the purchase and
distribution of the Shares to be purchased from such Selling
Shareholder under this Agreement by the Underwriters or under the
International Underwriting Agreement by the International
Underwriters.
(iv) Assuming that Xxxxxxx, Sachs & Co.,
as agent for the other Underwriters and the International
Underwriters, and each of the Underwriters and the International
Underwriters acquired their interest in a new certificate,
registered in the name of Xxxxxxx, Xxxxx & Co., as an Underwriter
and as agent for the other Underwriters and the International
Underwriters, representing the Shares delivered at such Time of
Delivery by such Selling Shareholders (the "Securities") in good
faith and without notice of any adverse claims, upon delivery of the
Securities to Xxxxxxx, Sachs & Co., as an Underwriter and as agent
for the other Underwriters and the International Underwriters, in
the State of New York, Xxxxxxx, Xxxxx & Co., as an Underwriter and
as agent for the other Underwriters and the International
Underwriters, will acquire the Securities free of any adverse
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claims within the meaning of Section 8-302 of the New York Uniform
Commercial Code and free of any action or claims under Section 8-315
of such Code.
(B) Smith, Anderson, Blount, Dorsett, Xxxxxxxx &
Xxxxxxxx, L.L.P., counsel for each of the Selling Shareholders
indicated with footnote (c) in Schedule II hereto, shall have
furnished to you their written opinion with respect to each of such
Selling Shareholders, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) A Power of Attorney and a Custody
Agreement have been duly executed and delivered by such Selling
Shareholder and constitute valid and binding agreements of such
Selling Shareholder in accordance with their terms;
(ii) This Agreement and the International
Underwriting Agreement have been duly executed and delivered by or
on behalf of such Selling Shareholder; and the sale of the Shares to
be sold by such Selling Shareholder hereunder and thereunder and the
compliance by such Selling Shareholder with all of the provisions of
this Agreement and the International Underwriting Agreement, the
Power of Attorney and the Custody Agreement and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any terms or provisions
of, or constitute a default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known
to such counsel to which such Selling Shareholder is a party or by
which such Selling Shareholder is bound, or to which any of the
property or assets of such Selling Shareholder is subject, nor will
such action result in any violation of the provisions of the
Articles of Incorporation and By-laws or other governing instrument
of such Selling Shareholder if such Selling Shareholder is a
corporation, the Partnership Agreement of such Selling Shareholder
if such Selling Shareholder is a partnership, the governing trust
agreement or other governing instrument of such Selling Shareholder
if such selling Shareholder is a trust, or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over such Selling Shareholder or the
property of such Selling Shareholder;
(iii) No consent, approval, authorization
or order of any court or governmental agency or body is required for
the consummation of the transactions contemplated by this Agreement
and the International Underwriting Agreement in connection with the
Shares to be sold by such Selling Shareholder hereunder or
thereunder, except such as shall have been specified in such opinion
which have been duly obtained and are in full force and effect and
such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of such Shares by the
Underwriters or the International Underwriters;
(iv) Immediately prior to such Time of
Delivery such Selling Shareholder had good and valid title to the
Shares to be sold at such Time of Delivery by such Selling
Shareholder under this Agreement and the International Underwriting
Agreement, free and clear of all liens, encumbrances, equities or
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claims, and full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Shareholder hereunder and thereunder; and
(v) Good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims, has
been transferred to each of the several Underwriters or
International Underwriters, as the case may be, who have purchased
such Shares in good faith and without notice of any such lien,
encumbrance, equity or claim or any other adverse claim within the
meaning of the Uniform Commercial Code.
In rendering the opinion in subparagraph (iv) such counsel may rely
upon a certificate of such Selling Shareholder in respect of matters of fact as
to ownership of, and liens, encumbrances, equities or claims on the Shares sold
by such Selling Shareholder, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such certificate;
(e) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of Delivery (A)
Ernst & Young LLP shall have furnished to you and the Company a letter or
letters, dated the respective date of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I(a) hereto, (B) Coopers
& Xxxxxxx shall have furnished to you and the Company a letter or letters,
dated the respective date of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex 1(b) and (C) KPMG shall
have furnished to you and the Company a letter or letters, dated the respective
date of delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex I(c).
(f) Since the respective dates as of which information is
given in the Prospectus, there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries, taken as a
whole, or any change, or any development involving a prospective change, in the
condition (financial or otherwise) or the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Prospectus, the effect of which, in any such case
described in this subsection (f), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities;
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(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ; (ii) a
suspension or material limitation in trading in the Company's securities on
NASDAQ; (iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United
States of a national emergency or war, if the effect of any such event
specified in clause (iv) above in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in this Agreement and in the Prospectus;
(i) The Shares to be sold by the Company and the Selling
Shareholders at such Time of Delivery shall have been duly listed for quotation
on NASDAQ;
(j) The Company has obtained and delivered to the Underwriters
executed copies of the Lock-up Agreements referred to in Subsection 1(a)(xxii)
hereof in form and substance satisfactory to you;
(k) The Company and the Selling Shareholders shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and of the Selling Shareholders,
respectively, satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Shareholders, respectively, herein at
and as of such Time of Delivery, as to the performance by the Company and the
Selling Shareholders of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other matters as
you may reasonably request, and the Company shall have furnished or caused to
be furnished certificates as to the matters set forth in subsections (a) and
(f) of this Section, and as to such other matters as you may reasonably
request; and
(l) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will periodically
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability
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arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx, Sachs & Co. or by any Selling
Shareholder expressly for use therein; and provided, further, that the Company
shall not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus to the extent that
any such loss, claim, damage or liability of such Underwriter results from the
fact that such Underwriter sold Shares to a person as to whom it shall be
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in any case where such delivery
is required by the Act if the Company has previously furnished copies thereof
in sufficient quantity to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus which was identified in
writing prior to the date hereof to such Underwriter and corrected in the
Prospectus (excluding document incorporated by reference) or in the Prospectus
as then amended or supplemented (excluding documents incorporated by
reference).
(b) Each of the Selling Shareholders will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) an untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Selling Shareholder expressly for
use therein, or (ii) the failure of such Selling Shareholder at or prior to the
written confirmation of the sale of the Shares to be sold by such Selling
Shareholder to send or deliver a copy of an amended Preliminary Prospectus or
Prospectus (or the Prospectus as amended or supplemented) to the person
asserting any such losses, claims, damages or liabilities against any
Underwriter, which person purchased the Shares which are the subject thereof,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact made in such Preliminary Prospectus was corrected
in the amended Preliminary Prospectus or the Prospectus (or the Prospectus as
amended and supplemented); and each Selling Shareholder will periodically
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter
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in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the amount of such indemnity
shall be limited to the total net proceeds received by each such Selling
Shareholder from the offering of Shares purchased under this Agreement (before
deducting expenses).
(c) Each Underwriter will indemnify and hold harmless the
Company and each Selling Shareholder against any losses, claims, damages or
liabilities to which the Company or such Selling Shareholder may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx
& Co. expressly for use therein; and will reimburse the Company and each
Selling Shareholder for any legal or other expenses reasonably incurred by the
Company or such Selling Shareholder in connection with investigating or
defending any such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i)
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includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Shareholders on
the one hand and the Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, each of the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (e)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), (i) no Selling Shareholder shall be required
to contribute any amount by which the total price at which the Shares sold by
such Selling Shareholder and distributed to the public were offered to the
public (before deducting expenses) exceeds the amount of any damages
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that such Selling Shareholder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and
(ii) no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The obligations of the Company and the Selling
Shareholders under this Section 8 shall be in addition to any liability which
the Company and the respective Selling Shareholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
(including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and to
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Shares which it has agreed to purchase hereunder at
a Time of Delivery, you may in your discretion arrange for you or another party
or other parties to purchase such Shares on the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company and the Selling
Shareholders shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to you to purchase
such Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company and the Selling Shareholders that you have so
arranged for the purchase of such Shares, or the Company and the Selling
Shareholders notify you that they have so arranged for the purchase of such
Shares, you or the Company and the Selling Shareholders shall have the right to
postpone such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect
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as if such person had originally been a party to this Agreement with respect to
such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Shareholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all of the Shares to be purchased at
such Time of Delivery, then the Company and the Selling Shareholders shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company and the Selling Shareholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares to be purchased at
such Time of Delivery, or if the Company and the Selling Shareholders shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Selling Shareholders to
sell the Optional Shares) shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company or the Selling
Shareholders, except for the expenses to be borne by the Company and the
Selling Shareholders and the Underwriters as provided in Section 6 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Shareholders and
the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any of the Selling Shareholders,
or any officer or director or controlling person of the Company, or any
controlling person of any Selling Shareholder, and shall survive delivery of
and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section
9 hereof, neither the Company nor the Selling Shareholders shall then be under
any liability to any Underwriter except as provided in Sections 6 and 8 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of
the Company and the Selling
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Shareholders as provided herein, the Company and each of the Selling
Shareholders pro rata (based on the number of Shares to be sold by the Company
and such Selling Shareholder hereunder) will reimburse the Underwriters through
you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the Selling Shareholders shall then be under no
further liability to any Underwriter in respect of the Shares not so delivered
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives; and in all dealings with any Selling Shareholder hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of such Selling Shareholder made or
given by any or all of the Attorneys-in-Fact for such Selling Shareholder.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the representatives in care of
Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Registration Department; if to any Selling Shareholder shall be delivered or
sent by mail, telex or facsimile transmission to counsel for such Selling
Shareholder at its address set forth in Schedule II hereto; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Shareholders by you upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and the Selling Shareholders and,
to the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company and each person who controls the Company, any Selling
Shareholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of
the Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
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15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us 10 counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and each of the Selling Shareholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters (U.S.
Version), the form of which shall be submitted to the Company and the Selling
Shareholders for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
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Any person executing and delivering this Agreement as
Attorney-in-Fact for a Selling Shareholder represents by so doing that he has
been duly appointed as Attorney-in-Fact by such Selling Shareholder pursuant to
a validly existing and binding Power of Attorney which authorizes such
Attorney-in-Fact to take such action.
Very truly yours,
Quintiles Transnational Corp.
By:/s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Financial Officer,
Executive Vice President Finance
and Treasurer
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx Xxxxx
Xxxx Xxxxx, Ph.D.
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxx Xxxxx Children's Settlement No.1
Xxxxxx Xxxxx Children's Settlement No.2
Xxxxx Xxxxxx Fleet
Xxxxxxxx X. Fleet
Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxx-Xxx Xxxxxx
Xxxxxxxx Xxxx McCooke
Xxxxx McCooke
Xxxxxxxxxxx X. Xxxxxx
Xxxxxx Xxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
As Attorney-in-Fact acting on behalf of
the above named Selling Shareholders.
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HSBC Private Equity Investments Limited
Lloyds Development Capital Limited
MSS Nominees Limited (Account 758170)
MSS Nominees Limited (Account 758979)
MSS Nominees Limited (Account 757549)
MSS Nominees Limited (Account 778392)
General Accident Executor and Trustee
Company Limited (Account H715)
General Accident Executor and Trustee
Company Limited (Account H716)
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
As Attorney-in-Fact acting on behalf of the above
named Selling Shareholders.
Ludo X. Xxxxxxxx, Ph.D
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
As Attorney-in-Fact acting on behalf of the above
named Selling Shareholders.
Accepted as of the date hereof at:
Xxxxxxx, Sachs & Co.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxx Xxxxxx Inc.
Xxxxxxx Xxxxx & Company, L.L.C.
By: /s/ Xxxxxxx, Sachs & Co.
-----------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- ------------------- -----------------------
Xxxxxxx, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . 720,750 108,113
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . . . . 720,750 108,113
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . 720,750 108,112
Xxxxxxx Xxxxx & Company, L.L.C. . . . . . . . . . . . . . . . . . 720,750 108,112
Genesis Merchant Group Securities LLC . . . . . . . . . . . . . . 95,000 14,250
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc. . . . . . . . . . . . . . . . 95,000 14,250
Xxxxxxxxx & Xxxxx . . . . . . . . . . . . . . . . . . . . . . . . 168,000 25,200
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . . . . 168,000 25,200
Xxxxx & Xxxxxxxxxxxx, Inc. . . . . . . . . . . . . . . . . . . . 95,000 14,250
Vector Securities International, Inc. . . . . . . . . . . . . . . 168,000 25,200
Xxxxxxx, Xxxxxx & Xxxxxxxxx, L.L.C. . . . . . . . . . . . . . . . 168,000 25,200
--------- ---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . 3,840,000 576,000
--------- ---------
35
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
------------------ --------------------
The Company . . . . . . . . . . . . . . . . . . . . . . . 1,132,000 0
The Selling Shareholders:
Xxxxxx X. Xxxxx(a)* . . . . . . . . . . . . . . . . . . 181,586 99,777
Xxxxx X. Xxxxx(a) . . . . . . . . . . . . . . . . . . . 400 0
Xxxxx Xxxxx(a) . . . . . . . . . . . . . . . . . . . . 800 0
Xxxx Xxxxx, Ph.D.(a) . . . . . . . . . . . . . . . . . 20,072 0
Xxxxxxx X. Xxxxx(a) . . . . . . . . . . . . . . . . . 19,600 0
Xxxxxx X. Xxxxx(a)* . . . . . . . . . . . . . . . . . . 40,000 40,000
Xxxxxx Xxxxx Children's Settlement No. 1(a)* . . . . . 80,000 40,000
Xxxxxx Xxxxx Children's Settlement No. 2(a)* . . . . . 60,000 20,000
HSBC Private Equity Investments Limited(b)* . . . . . . 1,310,006 244,480
Lloyds Development Capital Limited(b) . . . . . . . . . 240,000 0
MSS Nominees Limited (Account 758170)(b)* . . . . . . . 94,701 17,673
MSS Nominees Limited (Account 758979)(b)* . . . . . . . 42,303 7,894
MSS Nominees Limited (Account 757549)(b)* . . . . . . . 378,854 70,704
MSS Nominees Limited (Account 778392)(b)* . . . . . . . 32,190 6,009
General Accident Executor and Trustee
Company Limited (Account H715)(b)* . . . . . . . . . 126,285 23,568
General Accident Executor and Trustee
Company Limited (Account H716)(b)* . . . . . . . . . 31,583 5,895
Xxxxx Xxxxxx Fleet(a) . . . . . . . . . . . . . . . . . 7,560 0
Xxxxxxxx X. Fleet(a) . . . . . . . . . . . . . . . . . 8,000 0
Xxxxxxxx Xxxxxxx Xxxxxx(a) . . . . . . . . . . . . . . 2,526 0
Xxxxx-Xxx Xxxxxx(a) . . . . . . . . . . . . . . . . . 2,526 0
Xxxxxxxx Xxxx McCooke(a) . . . . . . . . . . . . . . . 3,628 0
Xxxxx McCooke(a) . . . . . . . . . . . . . . . . . . . 3,192 0
Xxxxxxxxxxx X. Xxxxxx(a) . . . . . . . . . . . . . . . 2,854 0
Xxxxxx Xxxxxx(a) . . . . . . . . . . . . . . . . . . . 2,854 0
Ludo X. Xxxxxxxx, Ph.D.(c) . . . . . . . . . . . . . . 12,000 0
Xxxxx X. Xxxxx(c) . . . . . . . . . . . . . . . . . . . 4,000 0
Xxxxxxx X. Xxxxxx(c) . . . . . . . . . . . . . . . . . 480 0
--------- -------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,840,000 576,000
--------- -------
(a) This Selling Shareholder is represented by Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP and has appointed Xxxxxx X. Xxxxx, Xxxx Xxxxx, Ph.D.,
Xxxxxx X.
36
Xxxxxxxx, Ph.D. and Xxxxxx X. Xxxxxxxx, and each of them, as the
Attorneys-in-Fact for such Selling Shareholder.
(b) This Selling Shareholder is represented by Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP and has appointed Xxxxxxxxxxx X. Xxxxxxxxx and Xxx X.
Xxxxxxx, and each of them, as the Attorneys-in-Fact for such Selling
Shareholder.
(c) This Selling Shareholder is represented by Smith, Anderson,
Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P. and has appointed Xxxxxx X. Xxxxx,
Xxxx Xxxxx, Ph.D., Xxxxxx X. Xxxxxxxx, Ph.D. and Xxxxxx X. Xxxxxxxx, and each
of them, as the Attorneys-in-Fact for such Selling Shareholder.
II-2
37
SCHEDULE III
Xxxxxx X. Xxxxxxxx, Ph.X.
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxx
Xxxx X. Souetre, M.D., Ph.D.
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx, Ph.D.
Xxxx X. Xxxxx, Ph.D.
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
38
ANNEX I(A)
Pursuant to Section 7(e)(A) of the Underwriting Agreement, Ernst & Young
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries, BRI International, Inc. and Xxxxx-VHI within the
meaning of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) of the Company and its subsidiaries,
BRI International, Inc. and Xxxxx-VHI examined by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have made
a review in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial statements
of the Company or Xxxxx-VHI, as the case may be, for the periods specified in
such letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the "Representatives")
and are attached hereto;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or
included in the Company's Quarterly Reports on Form 10-Q incorporated by
reference into the Prospectus; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules
and regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not comply as
to form in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the year ended
39
December 31, 1995 agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as
a result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation
S-K;
(vi) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below,
a reading of the latest available interim financial statements of the Company
and its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related
published rules and regulations, or (ii) any material modifications should
be made to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding items
in the unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Prospectus for the year ended
December 31, 1996;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were
A1a-2
40
not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Prospectus for the year ended December 31, 1996;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or shareholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E) there were any decreases in consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives, or
any increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter;
and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures referred
to in paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference) or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by reference in
the Prospectus specified by the Representatives, and have compared
A1a-3
41
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them to
be in agreement.
X0x-0
00
XXXXX X(X)
Pursuant to Section 7(e)(B) of the Underwriting Agreement, Coopers &
Xxxxxxx shall furnish letters to the Underwriters to the effect that, in their
opinion, the financial statements and any supplementary financial information
and schedules of BRI International, Inc. examined by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder.
43
ANNEX I(C)
Pursuant to Section 7(e)(C) of the Underwriting Agreement, KPMG shall
furnish letters to the Underwriters to the effect that:
(i) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial forecasts
and/or pro forma financial information) of the Innovex Companies, which
comprised a combination of Innovex PLC and Innovex Holdings Limited (the
"Combined Innovex Companies"), examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to form in
all material respects with the applicable accounting requirements of the Act or
the Exchange Act, as applicable, and the related published rules and
regulations thereunder;
(ii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets,
consolidated statements of cash flows and consolidated total recognized gains
and losses of Innovex PLC and its subsidiaries included in the Company's
Current Reports on Form 8-K incorporated by reference into the Prospectus; and
on the basis of specified procedures including inquiries of officials of the
Innovex PLC who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (iii)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iii) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, inspection of the minute books of Innovex PLC
and its subsidiaries since the date of the latest audited financial statements
of the Combined Innovex Companies included or incorporated by reference in the
Prospectus, inquiries of officials of the Innovex PLC and its subsidiaries
responsible for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets, consolidated statements of cash flows and
consolidated total recognized gains and losses of Innovex PLC and its
subsidiaries
44
included in the Company's Current Reports on Form 8-K incorporated by
reference into the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act
and the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets, consolidated statements
of cash flows and consolidated total recognized gains and losses of Innovex
PLC and its subsidiaries included in the Company's Current Reports on Form
8-K incorporated by reference into the Prospectus, for them to be in
conformity with generally accepted accounting principles;
(B) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) were not determined on a
basis substantially consistent with the basis for the audited financial
statements of the Combined Innovex Companies included or incorporated by
reference in the Prospectus for the year ended March 31, 1996; and
(C) any unaudited pro forma consolidated condensed financial
statements of the Combined Innovex Companies or Innovex PLC and its
subsidiaries included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements.
A1c-2
