Exhibit 1.2
WORLD COLOR PRESS, INC.
Common Stock (par value $.01 per share)
UNDERWRITING AGREEMENT (INTERNATIONAL VERSION)
May __, 1998
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx & Co. International Limited
Bear, Xxxxxxx International Limited
BT Alex. Xxxxx International,
a division of Bankers Trust International PLC
Xxxxxxxxx, Lufkin & Xxxxxxxx International
As representatives of the several International Underwriters
named in Schedule I hereto,
c/o Goldman Sachs International,
Peterborough Court
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of World Color Press, Inc., a Delaware corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to the International Underwriters named in Schedule I hereto (the "International
Underwriters"), for whom Xxxxxxx Xxxxx International, Xxxxxx Xxxxxxx Xxxx
Xxxxxx, Bear, Xxxxxxx International Limited, BT Alex. Xxxxx International and
Xxxxxxxxx, Lufkin & Xxxxxxxx International are acting as representatives ("Lead
Managers") an aggregate of 1,000,000 shares (the "Firm Shares") and, at the
election of the International Underwriters, up to 150,000 additional shares (the
"Optional Shares") of Common Stock par value $.01 per share ("Common Stock") of
the Company (the Firm Shares and the Optional Shares which the International
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares").
It is understood and agreed to by all parties that the Company and
the Selling Stockholders are concurrently entering into an agreement, a copy
of which is attached hereto (the
"U.S. Underwriting Agreement"), providing for the sale by the Selling
Stockholders of up to a total of 10,350,000 shares of Common Stock (the "U.S.
Shares"), including the overallotment option thereunder, through arrangements
with certain underwriters in the United States (the "U.S. Underwriters"), for
whom Xxxxxxx, Sachs & Co., Xxxxxx Xxxxxxx & Co. Incorporated, Bear Xxxxxxx & Co.
Inc., BT Xxxx Xxxxx Incorporated and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation are acting as representatives. Anything herein or therein to the
contrary notwithstanding, the respective closings under this Agreement and the
U.S. Underwriting Agreement are hereby expressly made conditional on one
another. The International Underwriters hereunder and the U.S. Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates") which provides,
among other things, for the transfer of shares of Common Stock between the two
syndicates and for consultation by the representatives hereunder with Xxxxxxx,
Sachs & Co. prior to exercising the rights of the International Underwriters
under Section 7 hereof.
Two forms of prospectus are to be used in connection with the offering
and sale of shares of Common Stock contemplated by the foregoing, one relating
to the Shares hereunder and the other relating to the U.S. Shares. The latter
form of prospectus will be identical to the former except for certain substitute
pages as included in the registration statement and amendments thereto as
mentioned below. Except as used in Section 2, 3, 4, 10 and 12 herein, and except
as context may otherwise require, references herein to the Shares shall include
all of the shares of Common Stock which may be sold pursuant to either this
Agreement or the U.S. Underwriting Agreement, and references herein to any
prospectus whether in preliminary or final form, and whether as amended or
supplemented, shall include both the U.S. and the international versions
thereof.
In addition, this Agreement incorporates by reference certain provisions
from the U.S. Underwriting Agreement (including the related definitions of
terms, which are also used elsewhere herein) and, for purposes of applying the
same, references (whether in these precise words or their equivalent) in the
incorporated provisions to the "Underwriters" shall be to the Underwriters
hereunder, to the "Shares" shall be to the Shares hereunder as just defined, to
"this Agreement" (meaning therein the U.S. Underwriting Agreement) shall be to
this Agreement (except where this Agreement is already referred to or as the
context may otherwise require) and to the representatives of the International
Underwriters or to Xxxxxxx, Xxxxx & Co. shall be to the addressees of this
Agreement and to Xxxxxxx Sachs International ("GSI"), and, in general, all such
provisions and defined terms shall be applied MUTATIS MUTANDIS as if the
incorporated provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting Agreement.
The registration statement as amended at the time it becomes effective,
including any documents incorporated therein by reference and including the
information (if any) deemed to
2
be part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act of 1933, as amended (the "Securities Act"),
is hereinafter referred to as the "Registration Statement;" the U.S. prospectus
and the international prospectus in the respective forms first used to confirm
sales of Shares, including any documents incorporated therein by reference, are
hereinafter collectively referred to as the "Prospectus." If the Company has
filed an abbreviated registration statement to register additional shares of
Common Stock pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
1. The Company and each of the several Selling Stockholders hereby make to
the International Underwriters the same respective representations, warranties
and agreements as are set forth in Section 1 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
2. PURCHASE OF SHARES. On the basis of the representations and warranties
contained in, and subject to the terms and conditions of, this Agreement, each
Selling Stockholder hereby, severally and not jointly, agrees to sell the number
of Firm Shares set forth opposite such Selling Stockholder's name in Schedule II
hereto to the several International Underwriters and each of the International
Underwriters, severally and not jointly, agrees to purchase the number of Firm
Shares set forth opposite that International Underwriter's name in Schedule I
hereto. Each International Underwriter shall be obligated to purchase from each
Selling Stockholder that number of Firm Shares which represents the same
proportion of the number of Firm Shares to be sold by each Selling Stockholder
as the number of Firm Shares set forth opposite the name of such International
Underwriter in Schedule I represents of the total number of Firm Shares to be
purchased by all of the International Underwriters pursuant to this Agreement.
The respective purchase obligations of the International Underwriters with
respect to the Firm Shares shall be rounded among the International Underwriters
to avoid fractional shares, as the International Representatives may determine.
In addition, the Selling Stockholders grant to the International
Underwriters an option to purchase an aggregate of up to 150,000 Optional Shares
as set forth in Schedule II hereto. Such option is granted solely for the
purpose of covering over-allotments in the sale of Firm Shares and is
exercisable as provided in Section 4 hereof. Optional Shares shall be purchased
severally for the account of the International Underwriters in proportion to the
number of Firm Shares set forth opposite the name of such International
Underwriters in Schedule I hereto. The respective purchase obligations of each
International Underwriter with respect to the Optional Shares shall be adjusted
by the Representatives so that no International Underwriter shall be obligated
to purchase Optional Shares other than in 100 share amounts.
The price of both the Firm Shares and any Optional Shares shall be
$ per share.
3
The Selling Stockholders shall not be obligated to deliver any of the
Shares to be delivered on the First Delivery Date or the Second Time of Delivery
(as hereinafter defined), as the case may be, except upon payment for all the
Shares to be purchased on such Delivery Date as hereinafter provided.
3. Upon the authorization by GSI of the release of the Firm Shares, the
several International Underwriters propose to offer the Firm Shares for sale
upon the terms and conditions set forth in the Prospectus and in the forms of
Agreement among International Underwriters and Selling Agreements, which have
been previously submitted to the Company by you. Each International Underwriter
hereby makes to and with the Company and the Selling Stockholders the
representations and agreements of such International Underwriter as a member of
the selling group contained in Sections 3(d) and 3(e) of the form of Selling
Agreements.
4. (a) The Shares to be purchased by each International 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 Selling Stockholders shall be delivered
by or on behalf of the Selling Stockholders to Xxxxxxx, Sachs & Co., through the
facilities of the Depository Trust Company ("DTC"), for the account of such
International Underwriter, against payment by or on behalf of such International
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the accounts specified by each of the Selling Stockholders,
as their interests may appear, 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 DTC or its designated custodian Xxxxxxx, Sachs & Co., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York City time, on ........., 19.. or such other time and date as Xxxxxxx,
Xxxxx & Co. and the Selling Stockholders may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York 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 Selling Stockholders 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".
At each Time of Delivery, each at the Selling Stockholders will pay, or
cause to be paid, the commission payable at such Time of Delivery to the
Underwriters under Section 2 hereof
4
by wire transfer of Federal (same-day) funds [(16 to the account specified by
Xxxxxxx, Xxxxx & Co.]
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 of the U.S. Underwriting Agreement,
including the cross-receipt for the Shares and any additional documents
requested by the International Underwriters pursuant to Section 8(n) of the U.S.
Underwriting Agreement, will be delivered at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (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
..............p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final s of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company hereby makes with the International Underwriters the same
agreements as are set forth in Section 5 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
6. The Selling Stockholders hereby makes with the International
Underwriters the same agreements as are set forth in Section 6 of the U.S.
Underwriting Agreement, which Section is incorporated herein by this reference.
7. The Selling Stockholders and the International Underwriters hereby agree
with respect to certain expenses on the same terms as are set forth in Section 7
of the U.S. Underwriting Agreement, which Section is incorporated herein by this
reference.
8. Subject to the provisions of the Agreement between Syndicates, the
obligations of the International Underwriters hereunder shall be subject, in
their discretion, at each Time of Delivery to the condition that all
representations and warranties and other statements of the Company, and the
Selling Stockholders herein are, at and as of such Time of Delivery, true and
correct, the condition that the Company and the Selling Stockholders shall have
performed all of their respective obligations hereunder theretofore to be
performed, and additional conditions identical to those set forth in Section 8
of the U.S. Underwriting Agreement, which Section is incorporated herein by this
reference.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify and
hold harmless each International Underwriter and each person, if any, who
controls any International Underwriter within the meaning of the Act, from and
against any loss, claim, damage or
5
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Shares in connection herewith), to which that
International Underwriter or controlling person may become subject, under the
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) 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 shall reimburse each International Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by that
International Underwriter or controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any International
Underwriter through the International Representatives expressly for use therein;
and provided, further, that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any International Underwriter or any
person controlling that International Underwriter on account of any loss, claim,
damage, liability or action arising from the sale of Shares to any person by
that International Underwriter if that International Underwriter failed to send
or give a copy of the Prospectus, as the same may be amended or supplemented, to
that person within the time required by the Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Company with
Section 5(c) of the U.S. Underwriting Agreement. For purposes of the last
proviso to the immediately preceding sentence, the term "Prospectus" shall not
be deemed to include the documents incorporated therein by reference, and no
International Underwriter shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any Preliminary
Prospectus or the Prospectus to any person. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to any
International Underwriter or to any controlling person of that International
Underwriter.
(b) The Selling Stockholders (subject to the limitation on indemnity
contained in the last section of this Section 9(b)) severally and not jointly,
shall indemnify and hold harmless each International Underwriter and each
person, if any, who controls any International Underwriter within the meaning of
the Act, from and against any loss, claim, damage or liability, joint or
several, or action in respect thereof (including but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of Shares in
connection
6
herewith), to which that International Underwriter or controlling person may
become subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) 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, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by such Selling Stockholder expressly for use therein, and shall
reimburse each International Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by that International
Underwriter or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred, provided, however, that as to any Preliminary
Prospectus this indemnity agreement shall not inure to the benefit of any
International Underwriter or any person controlling that International
Underwriter on account of any loss, claim, damage, liability or action arising
from the sale of Shares to any person by that International Underwriter if that
International Underwriter failed to send or give a copy of the Prospectus, as
the same may be amended or supplemented, to that person within the time required
by the Act, and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in the Prospectus unless such failure
resulted from non-compliance by the Company with Section 5(c) of the U.S.
Underwriting Agreement. For purposes of the last proviso to the immediately
preceding sentence the term "Prospectus" shall not be deemed to include the
documents incorporated therein by reference, and no International Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in any Preliminary Prospectus or the Prospectus to any
person other than a person to whom such International Underwriter had delivered
such incorporated document or documents in response to a written request
therefor. The foregoing indemnity agreement is in addition to any liability
which the Selling Stockholders may otherwise have to any International
Underwriter or any controlling person of that International Underwriter. The
aggregate liability of any Selling Stockholder to indemnify the International
Underwriters and any controlling persons of the International Underwriters
pursuant to the foregoing indemnity agreement shall not exceed the proceeds
received by such Selling Stockholder from the Shares sold by it pursuant to this
Agreement.
(c) Each International Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, each person, if any, who
controls the Company within the meaning of the Act and each Selling Stockholder
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any such director, officer or
controlling person or such Selling Stockholder may become subject, under the Act
or
7
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (ii)
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, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
that International Underwriter through the Representatives expressly for use
therein, and shall reimburse the Company, any such director, officer or
controlling person and such Selling Stockholder for any legal or other expenses
reasonably incurred by the Company, any such director, officer or controlling
person or such Selling Stockholder in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred. The foregoing indemnity agreement is in addition
to any liability which any International Underwriter may otherwise have to the
Company or any such director, officer or controlling person.
(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 reasonably, satisfactory to such indemnified party, and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of 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 this in Section 9 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 9 (a), 9 (b)
8
or 9(c) hereof in respect of any loss, claim, liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company and the
Selling Stockhold ers on the one hand and the International Underwriters on the
other from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or if the indemnified party
failed to give the notice required under Section 9(d) hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the Selling
Stockholders on the one hand and the International Underwriters on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the International Underwriters on the
other with respect to such offering 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 each of the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the International Underwriters with respect to the Shares purchased under
this Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders or the International Underwriters, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Stockholders and the International Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 9(e) were to be
determined by pro rata allocation (even if the International Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 9(e) shall be deemed to include, for purposes of this
Section 9(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 9 (e), no International
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 was offered to the public exceeds the amount of any damages which
such International Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission, and no Selling Stockholder shall be required to contribute any amount
in excess of the amount by which the proceeds received by such Selling
Stockholder from the Shares sold by it pursuant to this Agreement exceeds the
amount of any damages which such Selling Stockholder has otherwise paid or
become liable to pay by reason of any untrue or
9
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 International Underwriters' obligations to
contribute as provided in this Section 9(e) are several in proportion to their
respective underwriting obligations and not joint.
(f) Each Selling Stockholder severally confirms, and each of the
International Underwriters agrees that the information (other than the
percentage of shares owned) pertaining to each Selling Stockholder under the
caption "Principal and Selling Stockholders" in the Prospectus constitutes the
only information furnished in writing to the Company by such Selling Stockholder
expressly for the use in the Registration Statement and Prospectus.
10. (a) If any International 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 International Underwriter you do not
arrange for the purchase of such Shares, the Selling Stockholders 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 Selling Stockholders that you have so arranged for the purchase of such
Shares, or the Selling Stockholders notify you that they have so arranged for
the purchase of such Shares, you or the Selling Stockholders 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.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting International Underwriter or International Underwriters
by you and the Selling Stockholders as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be purchased at such
Time of Delivery, then the Selling Stockholders shall have the right to require
each non-defaulting International Underwriter to purchase the number of shares
which such International Underwriter agreed to purchase hereunder at such Time
of Delivery and, in addition, to require each non-defaulting International
Underwriter to purchase its pro rata share (based on the number of Shares which
such International Underwriter agreed to purchase hereunder) of the Shares of
such defaulting International Underwriter or International Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting International Underwriter from liability for its default.
10
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting International Underwriter or International Underwriters
by you and the Selling Stockholders 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 Selling Stockholders shall not exercise the right described
in subsection (b) above to require non-defaulting International Underwriters to
purchase Shares of a defaulting International Underwriter or International
Underwriters, then this Agreement (or, with respect to the Second Time of
Delivery, the obligations of the International Underwriters to purchase and of
the Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting International Underwriter or
the Company or the Selling Stockholders, except for the expenses to be borne by
the Company and the Selling Stockholders and the International Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting International
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Stockholders and the several
International Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any International Underwriter or any
controlling person of any International Underwriter, or the Company or any of
the Selling Stockholders, or any officer or director or controlling person of
the Company or any controlling person of any Selling Stockholders, and shall
survive delivery of and payment for the Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any International Underwriter except as provided in Section 7 and
Section 9 hereof; but, if for any other reason (other than by reason of Section
8(i) of the U.S. Underwriting Agreement), any Shares are not delivered by or on
behalf of the Selling Stockholders as provided herein, each of the Selling
Stockholders pro rata (based on the number of Shares to be sold by such Selling
Stockholder hereunder) will reimburse the International Underwriters through GSI
for all out-of-pocket expenses approved in writing by GSI, including fees and
disbursements of counsel, reasonably incurred by the International Underwriters
in making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and the Selling Stockholders shall then be under no
further liability to any International Underwriter in respect of the Shares not
so delivered except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
International Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
International Underwriter made or given by you jointly
11
or by GSI on behalf of you as the representatives of the International
Underwriters; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be
in writing, and if to the International Underwriters shall be delivered or sent
by mail, telex or facsimile transmission to the International Underwriters at in
care of GSI, Peterborough Court, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx,
Attention: Equity Capital Markets, Telex No. 94012165, facsimile transmission
No. (071) 774-1550; if to any Selling Stockholder shall be delivered or sent by
mail, telex or facsimile transmission to counsel for such Selling Stockholder at
its address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an International Underwriter pursuant to Section
9(d) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such International Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Stockholders by GSI on request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the International Underwriters, the Company and the Selling Stockholders
and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company, any Selling
Stockholder or any International 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 International Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
17. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the International Underwriters, this letter and such
acceptance hereof shall constitute a binding
12
agreement among each of the International Underwriters, the Company and each of
the Selling Stockholders. It is understood that your acceptance of this letter
on behalf of each of the International Underwriters is pursuant to the authority
set forth in a form of Agreement among International Underwriters, the form of
which shall be furnished to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
13
Any person executing and delivering this Agreement as
Attorney-in-Fact for a Selling Stockholder represents by so doing that he has
been duly appointed as Attorney-in-Fact by such Selling Stockholder pursuant to
a validly existing and binding Power of Attorney which authorizes such
Attorney-in-Fact to take such action.
Very truly yours,
WORLD COLOR PRESS
By:
-------------------------------------
Name:
Title:
APC ASSOCIATES, L.P.
KKR Associates, general partner
By:
-------------------------------------
Name:
Title: General Partner
GR ASSOCIATES, L.P.
KKR Associates, general partner
By:
-------------------------------------
Name:
Title: General Partner
WCP ASSOCIATES, L.P.
KKR Associates, general partner
By:
-------------------------------------
Name:
Title: General Partner
14
KKR PARTNERS II, L.P.
KKR Associates, general partner
By:
-------------------------------------
Name:
Title: General Partner
Accepted as of the date hereof:
Xxxxxxx Xxxxx International
Xxxxxx Xxxxxxx & Co. International Limited
Bear, Xxxxxxx International Limited
BT Alex. Xxxxx International,
a division of Bankers Trust International PLC
Xxxxxxxxx, Lufkin & Xxxxxxxx International
By: Xxxxxxx Sachs International
By: ...............................
(Attorney-in-fact)
On behalf of each of the International Underwriters
15
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
-----------
Xxxxxxx, Xxxxx & Co....................................
Bear, Xxxxxxx International Limited....................
Xxxxxx Xxxxxxx & Co. International Limited.............
BT Alex. Xxxxx International, a division of Bankers Trust
International PLC......................................
Xxxxxxxxx, Lufkin & Xxxxxxxx International.............
Total
16
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
The Company............................................
The Selling Stockholder(s):
APC Associates, L.P. (a).......................
GR Associates, L.P.(b).........................
WCP Associates, L.P.(c)........................
KKR Partners II, L.P.(d).......................
Total
(A) This Selling Stockholder is represented by Xxxxxx & Xxxxxxx.
(b) This Selling Stockholder is represented by Xxxxxx & Xxxxxxx.
(c) This Selling Stockholder is represented by Xxxxxx & Xxxxxxx.
(d) This Selling Stockholder is represented by Xxxxxx & Xxxxxxx.
17
