Exhibit 1.1
Xxxxxx Associates, Inc.
[.] Shares of Class A Common
Stock, par value $0.01 per share
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Form of Underwriting Agreement
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[.], 0000
Xxxxxxx, Xxxxx & Xx.,
Xxxx xx Xxxxxxx Securities LLC,
X.X. Xxxxxx Securities Inc.,
Xxxxxxx Xxxxx Barney Inc.,
UBS Warburg LLC and
First Union Securities, Inc.,
as representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Xxxxxx Associates, Inc., a Delaware 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") for whom you
are acting as representatives (the "Representatives"), an aggregate of [o]
shares (the "Firm Shares"), and, at the election of the Underwriters, up to [o]
additional shares (the "Optional Shares"), of Class A Common Stock, par value
$0.01 per share ("Stock"), of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 3 hereof
being collectively called the "Shares").
It is understood that in connection with the transition of the business
of Xxxxxx Associates LLC to a corporate form, a series of transactions involving
the Company, Xxxxxx Holdings LLC ("Holdings") and Xxxxxx Associates LLC
("Associates LLC") that are described in the Prospectus (as defined in Section
1(a) hereof) under the caption "Reorganization and Other Transactions"
(including, without limitation, (i) the issuance by the Company of shares of
Class B Common Stock, par value $.01 per share, to Holdings in exchange for the
membership interests of Associates LLC ("the Exchange"), (ii) the distribution
of $152.5 million of accounts
receivable and $55 million in cash to Holdings pursuant to a distribution
agreement between Holdings and Associates LLC (the "Distribution Agreement"),
and (iii) the acquisition by the Company of the benefits consulting business of
Bacon & Xxxxxxx, a U.K. limited partnership (the "Bacon & Xxxxxxx Acquisition"))
will occur not later than concurrent with the First Time of Delivery (as defined
in Section 5(a) hereof). Such transactions are hereinafter referred to as the
"Reorganization Transactions". The award of restricted Stock and the award of
options for Stock, and the reservation of shares of Stock for the Xxxxxx Global
Stock and Incentive Compensation Plan (the "Incentive Compensation Plan") as
described in the Prospectus under the headings "Management--Initial Public
Offering Awards" and "Certain Relationships and Related Transactions--Restricted
Stock and Option Grants" and "Incentive Compensation Plan" are hereinafter
referred to as the "Related Transactions".
As part of the offering contemplated by this Agreement, Xxxxxxx Xxxxx
Xxxxxx Inc. ("Xxxxxxx Xxxxx Barney") has agreed to reserve out of the Firm
Shares set forth opposite its name on the Schedule I to this Agreement, up to
[___] shares, for sale to the Company's employees other than the owners of
Holdings (collectively, "Participants"), as set forth in the Prospectus under
the heading "Underwriting" (the "Directed Share Program"). The Firm Shares to be
sold by Xxxxxxx Xxxxx Xxxxxx pursuant to the Directed Share Program (the
"Directed Shares") will be sold by Xxxxxxx Xxxxx Barney pursuant to this
Agreement at the public offering price. Any Directed Shares not orally confirmed
for purchase by any Participants by the end of the business day on which this
Agreement is executed will be offered to the public by Xxxxxxx Xxxxx Xxxxxx as
set forth in the Prospectus.
The Company and the Underwriters, in accordance with the requirements
of Rule 2720 ("Rule 2720") of the National Association of Securities Dealers,
Inc. (the "NASD") and subject to the terms and conditions stated herein, also
hereby confirm the engagement of the services of Xxxxxxx, Sachs & Co. (the
"Independent Underwriter") as a "qualified independent underwriter" within the
meaning of Section 2(l) of Rule 2720 in connection with the offering and sale of
the Shares.
(1) The Company represents and warrants to, and agrees with, the
Underwriters and the Independent Underwriter that:
(a) A registration statement on Form S-1 (File No. 333-84198) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, to you for
each of the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, and other than a Form 8-A filed pursuant to Section 12(b)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), no
other document with respect to the Initial Registration Statement has heretofore
been filed with the Commission; and no stop order suspending the effectiveness
of the Initial Registration Statement, any post-effective amendment thereto, or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or, to the Company's knowledge,
threatened by the Commission (any preliminary prospectus included in
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the Initial Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including the information contained in the
form of final prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 6(a) hereof and deemed by virtue of Rule 430A
under the Act to be part of the Initial Registration Statement at the time it
was declared effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through Xxxxxxx, Xxxxx & Co. or by the Independent Underwriter
expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder, including with
respect to documents which are required to be described in the Registration
Statement and the Prospectus or filed as an exhibit to the Registration
Statement 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 any Underwriter through
Xxxxxxx, Sachs & Co. or by the Independent Underwriter expressly for use
therein;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus that has resulted or would
result in a material adverse change, or any development involving a prospective
material adverse change, in the business, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect"); and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock or
long-term debt of the Company
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or any of its subsidiaries or any Material Adverse Effect, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as have not
had and would not have, individually or in the aggregate, a Material Adverse
Effect; and any real property and buildings held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as have not had and would not have, individually or in the
aggregate, a Material Adverse Effect;
(f) (i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction except where the failure to be so qualified or in good
standing would not result in a Material Adverse Effect; and (ii) each corporate
subsidiary of the Company (each a "Corporate Subsidiary"), each partnership
subsidiary of the Company (each a "Partnership Subsidiary") and each limited
liability company subsidiary of the Company (each a "LLC Subsidiary") has been
duly incorporated or organized, as the case may be, and is validly existing as a
corporation, partnership or limited liability company, as the case may be, in
good standing under the laws of its jurisdiction of incorporation or
organization, as the case may be, with the power and authority (corporate,
partnership or limited liability company, as the case may be, and other) to own
its properties and conduct its business as described in the Prospectus, except
where any failure to be so duly incorporated or organized or so qualified or in
good standing, individually or in the aggregate, would not result in a Material
Adverse Effect;
(g) (i) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the capital stock contained in
the Prospectus; and (ii) all of the issued shares of capital stock of each
Corporate Subsidiary of the Company, all of the partnership interests of each
Partnership Subsidiary and all of the membership interests of each LLC
Subsidiary, in each case that are owned by the Company as indicated on Schedule
III hereto, have been duly and validly authorized and issued or created and, in
the case of any Corporate Subsidiary or LLC Subsidiary, are fully paid and
non-assessable, and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims except for any such (i)
lack of a valid authorization or issuance that would not, individually or in the
aggregate, materially affect the Company's business or financial results,
prospects or growth opportunities as described in the Prospectus or (ii) liens,
encumbrances, equities or claims that would not have, individually or in the
aggregate, a Material Adverse Effect;
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(h) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(i) The issue and sale of the Shares by the Company and the compliance
by the Company with all of the provisions of this Agreement and the consummation
of the transactions herein contemplated (i) will not conflict with or result in
any violation of the provisions of the Certificate of Incorporation or the
By-laws of the Company and (ii) except for such conflicts, breaches, violations
or defaults that would not, individually or in the aggregate, have a Material
Adverse Effect, will not (A) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, or (B) violate any statute or
any order, rule or regulation of any court or tribunal or Federal, state or
foreign governmental or regulatory agency or body or self-regulatory authority
having jurisdiction over the Company or any of its subsidiaries or any of their
properties (each, a "Governmental Agency"); and no consent, approval,
authorization, order, registration or qualification of or with any Governmental
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,
except the registration under the Act of the Shares, the registration of the
Stock under the Exchange Act, listing of the Shares on the New York Stock
Exchange, Inc. (the "New York Stock Exchange") and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters;
(j) None of the Company or its Significant Subsidiaries (as such term
is defined in Rule 1.02(w) of Regulation S-X) is (i) in violation of its
organizational documents (nor are any of the Company's other subsidiaries in
violation of their constituent documents, except for violations that would not
result in a Material Adverse Effect) or (ii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound (except for such defaults that would not result in a Material Adverse
Effect). Associates LLC, Xxxxxx Associates Limited and Xxxxxx Bacon and Xxxxxxx
are the only subsidiaries of the company that are "Significant Subsidiaries"
under Rule 1.02(w) of Regulation S-X;
(k) The statements set forth in the Prospectus (i) under the caption
"Description of Capital Stock", insofar as they purport to constitute a summary
of the terms of the securities described therein and (ii) under the captions
"Material U.S. Federal Income Tax Considerations For Non-U.S. Holders", "Shares
Eligible for Future Sale" and "Certain Relationships and Related Transactions",
and the sixth, seventh, ninth and twenty-second paragraphs under the caption
"Underwriting", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate in all material respects and do
not omit to state a material fact required to be stated therein or necessary to
make such summary or description not misleading;
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(l) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which Holdings, 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 Holdings, the
Company or any of its subsidiaries, would, individually or in the aggregate,
have a Material Adverse Effect; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by any Governmental Agency or
threatened by others;
(m) The Company is not and, after giving effect to the Reorganization
Transactions and the offering and sale of the Shares, will not be an "investment
company", as such term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(n) Ernst & Young LLP, who have certified certain combined financial
statements of Associates LLC and its Affiliates, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(o) Xxxxxx Xxxxxxxx LLP, who have certified certain combined financial
statements of Associates LLC and its Affiliates, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(p) Xxxxx & Xxxxxxxxxx, who have certified certain consolidated
financial statements of Bacon & Xxxxxxx and its subsidiaries, are independent
public accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(q) Holdings, the Company and its subsidiaries have such concessions,
permits, licenses, consents, exemptions, franchises, authorizations, orders,
registrations, qualifications and other approvals (each, an "Authorization") of,
and, except for the filing of a registration statement on Form S-8 with the
Commission which is to occur following the Closing, have made all filings with
and notices to, all Federal, state and foreign governments, governmental or
regulatory authorities and self-regulatory organizations and all courts and
other tribunals, as are necessary to consummate the Reorganization Transactions
and the Related Transactions, except where the failure to have any such
Authorization or to make any such filing or notice would not, individually or in
the aggregate, (i) have a Material Adverse Effect, or (ii) adversely affect the
validity, performance or consummation of the transactions contemplated by this
Agreement. Each such Authorization is valid and in full force and effect and the
Company and each of its subsidiaries is in compliance with all of the terms and
conditions thereof; and no event has occurred (including, without limitation,
the receipt of any notice from any Governmental Agency) which allows or, after
notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such Authorization; and other than as disclosed in the Prospectus, such
Authorizations contain no restrictions that are materially more burdensome than
those imposed on the Company or any of its subsidiaries immediately prior to the
consummation of the Reorganization Transactions; except in each case described
in this sentence where such failure to be valid and in full force and effect or
to be in compliance or where the occurrence of any such event or the presence of
any such restriction would not, individually or in the aggregate, have a
Material Adverse Effect;
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(r) All stockholder, partnership and limited liability company member
approvals necessary for Holdings, the Company and each subsidiary to consummate
the Reorganization Transactions and the Related Transactions have been obtained
and are in full force and effect. The consummation of the Reorganization
Transactions will not (i) (A) result in a breach or violation of (x) the
organizational documents of Holdings, the Company or Xxxxxx Associates LLC or
(y) any of the organizational documents of any of Holdings' subsidiaries, or (B)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, any indenture, loan agreement, mortgage, lease or other agreement
or instrument to which Holdings, the Company or any of their respective
subsidiaries is a party or by which Holdings, the Company or any of their
respective subsidiaries or any of their respective properties is bound, or (ii)
violate or conflict with any applicable law or any rule, regulation, judgment,
order or decree of any Governmental Agency having jurisdiction over Holdings,
the Company or any of their respective subsidiaries or any of their respective
properties; except in each case described in clauses (i)(A)(y) and (B) and
clause (ii) of this sentence for such conflicts, breaches, defaults and
violations as would not, individually or in the aggregate, (x) have a Material
Adverse Effect, or (y) adversely affect the validity, performance or
consummation of the transactions contemplated by this Agreement;
(s) The Company and its subsidiaries possess all Authorizations issued by
the appropriate Governmental Agency that are necessary to conduct their
respective businesses as described in the Prospectus except where the failure to
have such Authorizations would not have a Material Adverse Effect;
(t) It is not necessary in connection with the grant, issuance, offer, sale
and delivery of the securities to be issued by the Company pursuant to the
Reorganization Transactions to register any such securities under the Act, or to
qualify any indenture under the Trust Indenture Act of 1939, as amended;
(u) The Company has duly authorized, executed and delivered each of the
Distribution Agreement, the transfer restriction agreement between Holdings and
the Company (the "Holdings Transfer Restriction Agreement"), the transfer
restriction agreements between the Company and each of the Bacon & Xxxxxxx
partners (collectively, the "Bacon & Xxxxxxx Transfer Restriction Agreements"),
the ownership interest transfer agreement between Holdings and the Company (the
"Ownership Transfer Agreement") and the registration rights agreement between
Holdings and the Company (the "Registration Rights Agreement"); each of the
Distribution Agreement, the Holdings Transfer Restriction Agreement, the Bacon &
Xxxxxxx Transfer Restriction Agreements, the Ownership Transfer Agreement and
the Registration Rights Agreement is a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors rights and to general equity principles; and the Company
has obtained the signature of each other party to each of the Distribution
Agreement, the Ownership Transfer Agreement, the Holdings Transfer Restriction
Agreement, the Bacon & Xxxxxxx Transfer Restriction Agreements and the
Registration Rights Agreement;
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(v) No holders of securities of Holdings or the Company have any
preemptive rights to acquire any securities of the Company or any rights to the
registration of any securities under the Registration Statement;
(w) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged; and there are no claims by the Company or any of its subsidiaries under
any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause except as previously
disclosed in writing to the Representatives or as would not, individually or in
the aggregate, have a Material Adverse Effect;
(x) The pro forma financial information included in the Prospectus and the
Registration Statement are based on assumptions that provide a reasonable basis
for presenting the significant effects directly attributable to the transactions
and events described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma adjustments reflect the proper
application of those adjustments to the historical financial statement amounts
in the pro forma financial statements included in the Prospectus and the
Registration Statement;
(y) The Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; and (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability;
(z) The Company has not taken, directly or indirectly, any action designed
to or which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Shares;
(aa) The Company and its subsidiaries own, possess, license or have other
rights to use all patents, patent applications, trade and service marks, trade
and service xxxx registrations, trade names, copyrights, licenses, inventions,
trade secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of the
Company's business as now conducted or as proposed in the Prospectus to be
conducted, except any failure to so own, possess, license or have rights to use
Intellectual Property which would not have a Material Adverse Effect;
(bb) The Company has not offered, or caused the Underwriters to offer,
Shares to any person pursuant to the Directed Share Program with the specific
intent to unlawfully influence (i) a customer or supplier of the Company to
alter the customer's or supplier's level or type of business with the Company,
or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products;
(cc) In the event that Directed Shares are sold outside the United States
in connection with the Directed Share Program, the Company represents and
warrants to Xxxxxxx Xxxxx
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Barney that (i) the Registration Statement, the Prospectus and any preliminary
prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions in
which the Prospectus or any preliminary prospectus , as amended or supplemented,
if applicable, are distributed in connection with the Directed Share Program,
and that (ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the securities
laws and regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States; and
(dd) It is not necessary in connection with the consummation of the
Reorganization Transactions to register any securities under the Act or the
Exchange Act. It is expected that Holdings may register under the Exchange Act
in the future.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $[o], the number of Firm Shares set forth opposite
the name of such Underwriter in Schedule I hereto and (b) in the event and to
the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to [o] Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering sales of shares
in excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 5 hereof)
or, unless Xxxxxxx, Xxxxx & Co. and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by Xxxxxxx, Sachs & Co. 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 Company hereby confirms its engagement of the services of the
Independent Underwriter, and the Independent Underwriter hereby confirms its
agreement with the Company to render services, as a "qualified independent
underwriter" within the meaning of Section 2(o) of Rule 2720 with respect to the
offering and sale of the Shares.
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(b) The Independent Underwriter hereby represents and warrants to, and
agrees with, the Company and the Underwriters that with respect to the offering
and sale of the Shares as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified
independent underwriter" within the meaning of Section 2(o) of Rule 2720;
(ii) The Independent Underwriter has participated in the preparation
of the Registration Statement and the Prospectus and has exercised the
usual standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an
examination of the Registration Statement, information regarding the
earnings, assets, capital structure and growth rate of the Company and
other pertinent financial and statistical data, (B) inquiries of and
conferences with the management of the Company and its counsel and
independent public accountants regarding the business and operations of the
Company, (C) consideration of the prospects for the industry in which the
Company competes, estimates of the business potential of the Company,
assessments of its management, the general condition of the securities
markets, market prices of the capital stock and debt securities of, and
financial and operating data concerning, companies believed by the
Independent Underwriter to be comparable to the Company with [.] and the
demand for securities of comparable companies similar to the Shares, and
(D) such other studies, analyses and investigations as the Independent
Underwriter has deemed appropriate, and assuming that the offering and sale
of the Shares is made as contemplated herein and in the Prospectus, the
Independent Underwriter recommends, as of the date of the execution and
delivery of this Agreement, that based on [.], the initial public offering
price for each Share be not more than $[.];
(v) Subject to the provisions of Section 8 hereof, the Independent
Underwriter will furnish to the Underwriters at the Time of Delivery a
letter, dated the Time of Delivery, in form and substance satisfactory to
the Underwriters, to the effect of clauses (i) through (iv) above.
(c) The Independent Underwriter hereby agrees with the Company and the
Underwriters that, as part of its services hereunder, in the event of any
amendment or supplement to the Prospectus, the Independent Underwriter will
render services as a "qualified independent underwriter" within the meaning of
Section 2(l) of Rule 2720 with respect to the offering and sale of the Shares as
described in the Prospectus as so amended or supplemented that are substantially
the same as those services being rendered with respect to the offering and sale
of the Shares as described in the Prospectus (including those described in
subsection (b) above).
(d) The Company, the Underwriters and the Independent Underwriter agree to
comply in all material respects with all of the requirements of Rule 2720
applicable to them in connection
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with the offering and sale of the Shares. The Company agrees to cooperate with
the Underwriters and the Independent Underwriter to enable the Underwriters to
comply with Rule 2720 and the Independent Underwriter to perform the services
contemplated by this Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, the Company agrees to pay the Independent Underwriter $[.] at the
Time of Delivery. In addition, the Company agrees promptly to reimburse the
Independent Underwriter for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with this Agreement
and the services to be rendered hereunder.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Xxxxxxx, Sachs & Co., through the facilities of the Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co.
at least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of Xxxxxxx, Sachs & Co. or at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
Chicago time, on, [.], 2002 or such other time and date as Xxxxxxx, Xxxxx & Co.
and the Company may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., Chicago time, on the date specified by Xxxxxxx, Sachs & Co.
in the written notice given by Xxxxxxx, Xxxxx & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
Xxxxxxx, Sachs & Co. and the Company may agree upon in writing. Such time and
date for delivery of the Firm Shares is herein called the "First Time of
Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(l) hereof, will be delivered at the offices
of [XxXxxxxxx, Will & Xxxxx, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000-0000] (the "Closing Location"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at 10 a.m., Chicago time, on the Chicago Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 5, "Chicago
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in Chicago are generally
authorized or obligated by law or executive order to close.
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6. The Company agrees with each of the Underwriters and with the
Independent Underwriter:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus which shall be
disapproved by you and the Independent Underwriter promptly after reasonable
notice thereof; to advise you and the Independent Underwriter 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 and the
Independent Underwriter with copies thereof; to advise you and the Independent
Underwriter 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 11:00 a.m., Chicago time, on the Chicago Business Day next
succeeding the date of this Agreement and from time to time, to furnish the
Underwriters and the Independent Underwriter with written and electronic copies
of the Prospectus in Chicago in such quantities as you and the Independent
Underwriter may reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in 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 Registration
Statement and the Prospectus in order to comply with the Act, to notify you and
the Independent Underwriter and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance, and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the Shares at any
time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to
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prepare and deliver to such Underwriter as many written and electronic 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
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and
including the date 180 days after the date of the Prospectus, (i) not to offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder 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 as contemplated by the Prospectus
and pursuant to employee stock option plans existing on, or upon the conversion
or exchange of convertible or exchangeable securities outstanding as of, the
date of this Agreement and a number of shares not exceeding 3% of the number of
shares of common stock of the Company to be outstanding immediately following
the offering contemplated hereby in connection with acquisitions, provided that
the recipients of such shares agree to be bound by this Section 5(e) for the
duration of the 180 days), and (ii) not directly or indirectly, to agree to any
amendment or waiver of the transfer restrictions contained in the Holdings
Transfer Restriction Agreement or the Bacon & Xxxxxxx Transfer Restriction
Agreements without the prior written consent of Xxxxxxx, Sachs & Co.;
(f) During the three year period following the effective date of the
Registration Statement, to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission), it being understood that such
information shall be subject to such confidentiality and use restrictions as the
Company may reasonably impose from time to time;
(h) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
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(i) To use its best efforts to list, subject to notice of issuance, the
Shares on the New York Stock Exchange;
(j) To file with the Commission such information on Form 10-Q or Form 10-K
as may be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act;
(l) Upon the reasonable request of any Underwriter, to furnish, or cause to
be furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted without any fee
and may not be assigned or transferred; and
(m) In connection with the Directed Share Program, the Company will ensure
that the Directed Shares will be restricted to the extent required by the NASD
or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a
period of three months following the date of the effectiveness of the
Registration Statement. Xxxxxxx Xxxxx Xxxxxx will notify the Company as to which
Participants will need to be so restricted. The Company will direct the removal
of such transfer restrictions upon the expiration of such period of time.
Furthermore, in the event that Directed Shares are sold outside the United
States, the Company covenants with Xxxxxxx Xxxxx Barney that the Company will
comply with all applicable securities and other applicable laws, rules and
regulations in each foreign jurisdiction in which the Directed Shares are
offered in connection with the Directed Share Program.
7. Associates LLC and the Company covenant and agree with the several
Underwriters and the Independent Underwriter that the Company will pay or cause
to be paid the following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and, except as provided in Section 6(c) with respect to the
provision of written and electronic copies of an amended or supplemented
Prospectus nine months or more after the time of issue of the Prospectus, 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, the Independent Underwriter and dealers; (ii) the
cost of printing or producing any Agreement among Underwriters, this Agreement,
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 6(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the New York Stock Exchange; (v) the filing fees incident to, and the
fees and
14
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Shares; (vi) the cost of preparing stock certificates;
(vii) the cost and charges of any transfer agent or registrar; (viii) all fees
and disbursements of counsel incurred by the Underwriters in connection with the
Directed Share Program and stamp duties, similar taxes or duties or other taxes,
if any, incurred by the Underwriters in connection with the Directed Share
Program; and (ix) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 10 and 13 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.
8. The respective obligations of the Underwriters and the Independent
Underwriter hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of such Time of Delivery, true and correct, the condition that the
Company shall have performed all of its obligations hereunder theretofore to be
performed, the condition (in the case of the Underwriters) that the Independent
Underwriter shall have furnished to the Underwriters the letter referred to in
clause (v) of Section 4(b) hereof and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 6(a) hereof;
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated such Time of Delivery, with
respect to the matters covered in paragraphs (i), (ii), (vi) (only as to the
statements set forth in the Prospectus under the captions "Description of
Capital Stock" and "Underwriting"), (vii) and (viii) of subsection (c) below as
well as such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) XxXxxxxxx, Will & Xxxxx, counsel for the Company, shall have furnished
to you their written opinion (a draft of such opinion is attached as Annex II(b)
hereto), 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 State of Delaware,
with corporate power to own its properties and conduct its business as
described in the Prospectus;
15
(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
and validly authorized and issued and are fully paid and non-assessable; and the
Shares constitute shares of the Stock;
(iii) This Agreement has been duly authorized, executed and delivered by
the Company;
(iv) The issue and sale of the Shares being delivered at such Time of
Delivery by the Company and the compliance by the Company with this Agreement
(i) will not result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company and (ii) except for any conflicts,
breaches, violations and defaults that would not, individually or in the
aggregate, have a Material Adverse Effect, will not violate any statute or any
order, rule or regulation known to such counsel of any Governmental Agency;
(v) No consent, approval, authorization, order, registration or
qualification of or with any Governmental Agency is required for the issue and
sale of the Shares or the compliance by the Company with this Agreement, except
the registration under the Act of the Shares, the registration of the Stock
under the Exchange Act and the listing of the Shares on the New York Stock
Exchange, subject to notice of issuance, each of which has been obtained or
made, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters;
(vi) The statements set forth in the Prospectus under (i) the caption
"Description of Capital Stock", insofar as they purport to constitute a summary
of the terms of the securities described therein and (ii) the captions "Certain
Relationships and Related Transactions", "Material U.S. Federal Income Tax
Considerations For Non-U.S. Holders", "Shares Eligible for Future Sale", and the
seventh and twenty-second paragraphs under the caption "Underwriting", insofar
as they purport to describe the provisions of the laws and documents referred to
therein, constitute a fair summary;
(vii) The Company is not and, after giving effect to the Reorganization
Transactions and the offering, will not be an "investment company", as such term
is defined in the Investment Company Act; and
(vii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder, including with respect to documents which are required to be
described in the Registration Statement or Prospectus or filed as an exhibit to
the Registration Statement; although they do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to in
16
the opinion in subsection (vi) of this section 8(c), they have no reason to
believe that, as of its effective date and as of the Time of Delivery, 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, 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 and as of the
Time of Delivery, the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the Federal laws of the United
States, the laws of the State of Illinois and the General Corporation Law of the
State of Delaware. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied upon certificates of officers of the
Company and its subsidiaries and certificates of public officials and other
sources believed by such counsel to be reliable and responsible.
(d) C. Xxxxxxxx Xxxxxxxx III, General Counsel of the Company, shall have
furnished to you his written opinion (a draft of such opinion is attached as
Annex II (c) hereto), dated such Time of Delivery, in form and in substance
satisfactory to you, to the effect that:
(i) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification or is subject to no material
liability or disability by reason of failure to be so qualified in any such
jurisdiction except where any failure to be so qualified or in good
standing would not have, individually or in the aggregate, a Material
Adverse Effect (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided that
such counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(ii) Each subsidiary of the Company has been duly incorporated or
organized, as the case may be, and is validly existing as a corporation,
partnership or limited liability company in good standing under the laws of
its jurisdiction of incorporation or organization, as the case may be
except where the failure to be duly incorporated or organized would not
have a Material Adverse Effect; and all of the issued shares of capital
stock of each Corporate Subsidiary of the Company, all of the partnership
interests of each Partnership Subsidiary and all of the membership
interests of each LLC Subsidiary, in each case that are owned by the
Company as indicated in Schedule III to this Agreement, have been duly and
validly authorized and issued and, in the case of any Corporate Subsidiary
or LLC Subsidiary, are fully paid and non-assessable, and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims except where such (i) lack of valid
authorization or issuance would not,
17
individually or in the aggregate, materially affect the Company's business or
financial results, prospects or growth opportunities as described in the
Prospectus or (ii) liens, encumbrances, equities or claims would not have,
individually or in the aggregate, a Material Adverse Effect; (such counsel being
entitled to rely upon opinions of local counsel and in respect to matters of
fact upon certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(iii) To such counsel's knowledge, after due inquiry, 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; and, to such
counsel's knowledge, after due inquiry, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(iv) Neither the Company nor any of its Significant Subsidiaries is in
violation of its organizational documents or, to such counsel's knowledge, in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound (except for such defaults that
would not have a Material Adverse Effect);
(v) No holders of securities of Holdings or the Company have any
preemptive rights to acquire any securities of the Company or any rights to the
registration of any securities under the Registration Statement;
(vi) The issue and sale of the Shares being delivered at such Time of
Delivery by the Company and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions herein
contemplated except for any conflicts, breaches, violations and defaults that
would not, individually or in the aggregate, have a Material Adverse Effect,
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 indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject;
(vii) Holdings, the Company and Associates LLC have such Authorizations of,
and have made all filings with and notices to, all Governmental Agencies, as are
necessary to consummate the Reorganization Transactions, except where the
failure to have any such Authorization or to make any such filing or notice
would not, individually or in the aggregate, (i) have a Material Adverse Effect,
or (ii) adversely affect the validity, performance or consummation of the
transactions contemplated by this Agreement. Each such Authorization is valid
and in full force and effect and Holdings, the Company and Associates LLC is in
compliance with all of the terms and conditions thereof; and no event has
occurred (including, without limitation, the receipt of any
18
notice from any authority or governing body) which allows or, after notice
or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse
of time or both, would result in any other impairment of the rights of the
holder of any such Authorization; and other than as disclosed in the
Prospectus, such Authorizations contain no restrictions that are materially
more burdensome than those imposed on Holdings or Associates LLC
immediately prior to the consummation of the Reorganization Transactions;
except in each case described in this sentence where such failure to be
valid and in full force and effect or to be in compliance or where the
occurrence of any such event or the presence of any such restriction would
not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and the Reorganization Transactions have been consummated
in all material respects as described in the Prospectus and the Bacon &
Xxxxxxx Acquisition has been consummated in all material respects in
accordance with the terms of the acquisition agreement as described in the
Prospectus;
(viii) All stockholder, partnership and limited liability company
member approvals necessary for Holdings, the Company, Associates LLC and
each subsidiary of the Company to consummate the Reorganization
Transactions have been obtained and are in full force and effect. The
consummation of the Reorganization Transactions will not (i) result in a
breach or violation of the organizational documents of Holdings, the
Company or Associates LLC, (ii) result in a breach or violation of any of
the organizational documents of any of the Company's subsidiaries, or (iii)
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which any subsidiary is a party or by which
Holdings, the Company, Associates LLC or any of their respective
subsidiaries or any of their respective properties is bound; except in each
case described in clauses (ii) and (iii) of this sentence for such
conflicts, breaches, defaults and violations as would not, individually or
in the aggregate, (x) have a Material Adverse Effect, or (y) adversely
affect the validity, performance or consummation of the transactions
contemplated by this Agreement;
(ix) Each of the Company and Holdings has duly authorized, executed
and delivered each of the Distribution Agreement, the Holdings Transfer
Restriction Agreement, the Bacon & Xxxxxxx Transfer Restriction Agreements,
the Ownership Transfer Agreement and the Registration Rights Agreement;
each of the Distribution Agreement, the Holdings Transfer Restriction
Agreement, the Bacon & Xxxxxxx Transfer Restriction Agreements, the
Ownership Transfer Agreement and the Registration Rights Agreement is a
valid and legally binding agreement of each of the Company and Holdings
enforceable against the Company and Holdings in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors rights and to general equity principles;
(x) It is not necessary in connection with the consummation of the
Reorganization Transactions to register any securities under the Act or the
Exchange Act; and
19
(xi) Although he does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, he has no reason to believe that, as of its
effective date and as of the Time of Delivery, 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, 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 and as of the Time of Delivery, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that he expresses no opinion
as to the laws of any jurisdiction other than the Federal laws of the United
States, the laws of the State of Illinois and the General Corporation Law of the
State of Delaware. Such counsel may also state that, insofar as such opinion
involves factual matters, he has relied upon certificates of officers of the
Company and its subsidiaries and certificates of public officials and other
sources believed by such counsel to be reliable and responsible. In addition,
such counsel may state that he has examined or has caused attorneys in the
Company's legal department to examine, such records, certificates and other
documents, and such questions of law, as he has considered necessary or
appropriate for the purposes of such opinion.
(e) (x) On the date of the Prospectus at a time prior to the execution of
this Agreement, (y) at 8:30 a.m., Chicago time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also (z) at each Time of Delivery:
(i) Ernst & Young LLP shall have furnished to you (A) a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I hereto
(the executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto) and (B) a review report with respect to the
pro forma financial information included in the Registration Statement (the
executed copy of such review report delivered prior to execution of this
Agreement is attached as Annex I(c) hereto);
(ii) Xxxxxx Xxxxxxxx LLP shall have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex I hereto
(the executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(d) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(e) hereto); and
20
(iii) Xxxxx and Xxxxxxxxxx shall have furnished to you (A) a letter
or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you to the effect set forth in Annex I hereto
(the executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(f) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(g) hereto) and (B) a review report with respect to
certain of the pro forma financial information included in the Registration
Statement (the executed copy of such review report delivered prior to
execution of this Agreement is attached as Annex I(h) hereto).
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal, New York or Illinois State authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or (v) in
the judgment of Xxxxxxx, Sachs & Co. makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered
at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the New York Stock Exchange;
(i) The Reorganization Transactions have been consummated as described in
the Prospectus and the Bacon & Xxxxxxx Acquisition has been consummated in
accordance with the terms of the acquisition agreement as described in the
Prospectus;
21
(j) The Company has obtained and delivered to the Underwriters executed
copies of an agreement from each of the individuals listed on Schedule II,
substantially to the effect set forth in Subsection 6(e) hereof in form and
substance satisfactory to you;
(k) The Company shall have complied with the provisions of Section 6(c)
hereof with respect to the furnishing of prospectuses on the Chicago Business
Day next succeeding the date of this Agreement;
(l) The Company shall have furnished or caused to be furnished to you at
such Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of this Section
and as to such other matters as you may reasonably request; and
(m) XxXxxxxxx, Will & Xxxxx shall have furnished to Holdings, and you shall
have received a copy of, its opinion that the Exchange will qualify as a tax
free exchange under Section 351 of the Internal Revenue Code of 1986, as
amended, for U.S. federal income tax purposes substantially in the form of Annex
II(d) attached hereto.
9. The Independent Underwriter hereby consents to the references to it as
set forth in the caption "Underwriting" in the Prospectus and in any amendment
or supplement thereto made in accordance with Section 6(a) hereof.
10. (a) Associates LLC and the Company will, jointly and severally,
indemnify and hold harmless each Underwriter and the Independent Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or the Independent Underwriter, as the case may be, may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter or the Independent Underwriter, as the case may be,
for any legal or other expenses reasonably incurred by such Underwriter or the
Independent Underwriter, as the case may be, in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that neither Associates LLC nor the Company shall be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to Associates LLC or the Company
by any Underwriter through Xxxxxxx, Sachs & Co. or the Independent Underwriter
expressly for use therein or constitutes a reference to the Independent
Underwriter consented to by it pursuant to Section 12 hereof.
(b) Each Underwriter will indemnify and hold harmless the Company and the
Independent Underwriter, as the case may be, against any losses, claims, damages
or liabilities to
22
which the Company and the Independent Underwriter, as the case may be, may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxxx, Xxxxx
& Co. expressly for use therein; and will reimburse the Company and the
Independent Underwriter, as the case may be, for any legal or other expenses
reasonably incurred by the Company and the Independent Underwriter, as the case
may be, in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) The Independent Underwriter will indemnify and hold harmless the
Company and each Underwriter against any losses, claims, damages or liabilities
to which the Company or such Underwriter, as the case may be, may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by the Independent Underwriter expressly for use
therein or constitutes a reference to the Independent Underwriter consented to
by it pursuant to Section 12 hereof; and will reimburse the Company or each
Underwriter, as the case may be, for any legal or other expenses reasonably
incurred by the Company or each Underwriter, as the case may be, in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses
23
of other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 10 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 each party to this Agreement 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 each party to this Agreement 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
Associates LLC on the one hand and the Underwriters and the Independent
Underwriter 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 total
underwriting discounts and commissions payable to the Underwriters, in each case
as set forth in the table on the cover page of the Prospectus and the fee
payable to the Independent Underwriter pursuant to the first sentence of Section
4(e) hereof, respectively, bear to the sum of the total proceeds from the sale
of the Shares (before deducting expenses) in the offering and the fee payable to
the Independent Underwriter pursuant to the first sentence of Section 4(e)
hereof. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or either the Underwriters or the
Independent Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Associates LLC, the Company, the Underwriters and the
Independent Underwriter agree that it would not be just and equitable if
contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (e),
no Underwriter nor the Independent
24
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public, and the Independent Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by the Underwriters and distributed
to the public were offered to the public, exceeds the amount of any damages
which such Underwriter or the Independent Underwriter, as the case may be, have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of Associates LLC and the Company under this Section 10
shall be in addition to any liability which Associates LLC and the Company may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter or the Independent Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 10 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 the Independent Underwriter within the meaning of the Act; and the
obligations of the Independent Underwriter under this Section 10 shall be in
addition to any liability which the Independent Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company (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
Underwriters within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a)
25
above, the aggregate number of such Shares which remains unpurchased does not
exceed one-eleventh of the aggregate number of all the Shares to be purchased at
such Time of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 7 hereof and the
indemnity and contribution agreements in Section 10 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and
other statements of Associates LLC and the Company and the several Underwriters
and the Independent Underwriter, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter, the Independent
Underwriter or any controlling person of any Underwriter, the Independent
Underwriter, Associates LLC or the Company, or any officer or director or
controlling person of Associates LLC or the Company, and shall survive delivery
of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
neither Associates LLC nor the Company shall then be under any liability to any
Underwriter or the Independent Underwriter except as provided in the second
sentence of Section 4(e) hereof and Sections 7 and 10 hereof; but, if for any
other reason, any Shares are not delivered by or on behalf of the Company as
provided herein, Associates LLC or the Company jointly and severally agree to
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 neither Associates LLC nor the
Company shall then be under any further liability to any Underwriter or the
Independent Underwriter in respect of the Shares not so delivered except as
provided in the second sentence of Section 4(e) hereof and Sections 7 and 10
hereof.
14. 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
26
agreement on behalf of any Underwriter made or given by you jointly or by
Xxxxxxx, Sachs & Co. on behalf of you as the Representatives.
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 at Xxxxxxx, Sachs & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Registration Department, if to the
Independent Underwriter shall be delivered or sent by mail, letter or facsimile
transmission to the name and address of the Independent Underwriter and if to
Associates LLC or the Company shall be delivered or sent by mail to the address
of the Company set forth in the Registration Statement, Attention: General
Counsel; provided, however, that any notice to an Underwriter pursuant to
Section 10(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Independent Underwriter, Associates LLC, the Company
and, to the extent provided in Sections 10 and 12 hereof, the officers and
directors of Associates LLC or the Company and each person who controls the
Company, the Independent Underwriter or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no 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.
16. 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.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
18. 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.
19. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Underwriters imposing any limitation of any kind.
[Remainder of page left intentionally blank]
27
If the foregoing is in accordance with your understanding, please sign
and return to us one for Associates LLC, the Company and each of the
Representatives plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters and the
Independent Underwriter, this letter and such acceptance hereof shall constitute
a binding agreement among each of the Underwriters, the Independent Underwriter,
Associates LLC and the Company. 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, the form of which shall be
submitted to Associates LLC and the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
Xxxxxx Associates, Inc.
By:_____________________________
Name:
Title:
Xxxxxx Associates LLC
By:__________________________
Name:
Title:
[Remainder of page left intentionally blank]
28
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
UBS Warburg LLC
First Union Securities, Inc.
By:_____________________________________
(Xxxxxxx, Sachs & Co.)
On behalf of the Representatives and each of the Underwriters
Xxxxxxx, Xxxxx & Co., as the Independent Underwriter
By:_____________________________________
(Xxxxxxx, Sachs & Co.)
______________________________________
[Name of Independent Underwriter
Partnership]
29
Annex-I-1
