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EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
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GLOBAL VACATION GROUP, INC.
3,000,000 Shares(1)
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
August , 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC
As Representatives of the several Underwriters,
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Global Vacation Group, Inc., a New York corporation (the "Company"),
proposes to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 3,000,000 shares of Common Stock, $.01 par value ("Common
Stock") of the Company (the "Underwritten Securities"). In addition, certain
shareholders named in Schedule II (the "Selling Shareholders") propose to grant
to the Underwriters an option to purchase up to 450,000 additional shares of
Common Stock to cover over-allotments (the "Option Securities"; the Option
Securities, together with the Underwritten Securities, being hereinafter called
the "Securities"). To the extent there are no additional Underwriters listed
on Schedule I other than you, the term Representatives as used herein shall
mean you, as Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. The use of the
neuter in this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in Section 17 hereof.
__________________________________
(1) Plus an option to purchase from the Selling Shareholders up to
450,000 additional securities to cover over-allotments.
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1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with,
each Underwriter as set forth below in this Section 1.
(i) The Company has prepared and filed with the
Commission a registration statement (file number 333-52673) on Form
S-1, including a related preliminary prospectus, for the registration
under the Act of the offering and sale of the Securities. The Company
may have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been furnished to
you. The Company will next file with the Commission either (1) prior
to the Effective Date of such registration statement, a further
amendment to such registration statement (including the form of final
prospectus) or (2) after the Effective Date of such registration
statement, a final prospectus in accordance with Rules 430A and
424(b). In the case of clause (2), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Prospectus. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made therein.
(ii) On the Effective Date, the Registration
Statement did or will, and when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
defined herein) and on any date on which Option Securities are
purchased, if such date is not the Closing Date (a "settlement date"),
the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained in
or omitted from the Registration Statement, or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information
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furnished herein or in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Prospectus (or any supplement
thereto).
(iii) Each of the Company and its subsidiaries has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate power and authority to own
or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which the failure to
be so qualified could have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole.
(iv) All the outstanding shares of capital stock of
each of the Company's subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Prospectus, all outstanding
shares of capital stock of the subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear of
any perfected security interest or any other security interests,
claims, liens or encumbrances, except for the pledge of such capital
stock to secure the Company's commercial credit facility described in
the Prospectus.
(v) The Company's authorized equity capitalization
is as set forth in the Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Prospectus; the outstanding shares of Common Stock have been
duly and validly authorized and issued and are fully paid and
nonassessable; the Securities being sold hereunder by the Company have
been duly and validly authorized, and, when issued and delivered to
and paid for by the Underwriters pursuant to this Agreement, will be
fully paid and nonassessable; the Securities being sold hereunder by
the Company are duly listed, and admitted and authorized for trading,
subject to official notice of issuance and evidence of satisfactory
distribution, on the New York Stock Exchange (the "NYSE"); the
certificates for the Securities are in valid and sufficient form; the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in
the Company are outstanding.
(vi) There is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required.
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(vii) The Company has full legal right, power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and binding obligation of the Company enforceable in accordance
with its terms.
(viii) The Company is not and, after giving effect
to the offering and sale of the Securities and the application of the
net proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended.
(ix) No consent, approval, authorization, filing
with or order of any court or governmental agency or body is required
in connection with the transactions contemplated herein, except such
as have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus.
(x) Neither the issue and sale of the Securities nor
the consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof will conflict with, result in
a breach or violation of or result in the imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to (A) the charter or by-laws of the
Company or any of its subsidiaries, (B) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party
or bound or to which its or their property is subject, or (C) any
statute, law, rule, regulation, judgment, order or decree applicable
to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties.
(xi) No holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement.
(xii) The consolidated historical financial
statements and schedules of the Company and its consolidated
subsidiaries, Haddon Holidays, Inc. ("Haddon"), Classic Custom
Vacations ("Classic") and MTI Vacations, Inc. ("MTI") included in the
Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and
cash flows of the Company, Haddon, Classic and MTI, as the case may
be, as of the dates and for the periods indicated, comply as to form
with the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis
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throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth under the caption "Selected
Financial Data" in the Prospectus and Registration Statement fairly
present, on the basis stated in the Prospectus and the Registration
Statement, the information included therein. The pro forma financial
statements included in the Prospectus and the Registration Statement
include 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. The pro
forma financial statements included in the Prospectus and the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of Regulation S-X under the Act
and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements.
(xiii) No action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries or its or their
property is pending or, to the best knowledge of the Company,
threatened that (A) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (B)
could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(xiv) Each of the Company and each of its
subsidiaries owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted.
(xv) Neither the Company nor any subsidiary is in
violation or default of any provision of its charter or by-laws. In
addition, neither the Company nor any subsidiary is in violation or
default of (A) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party
or bound or to which its property is subject, or (B) any statute, law,
rule, regulation, judgment, order or decree of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or
any of its properties, as applicable, where such violation or default
could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole.
(xvi) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ("AA"), who have certified
certain financial statements of the Company, Haddon and Classic, and
delivered their report with respect
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thereto and with respect to the schedules included in the Prospectus,
are independent public accountants with respect to the Company, Haddon
and Classic within the meaning of the Act and the applicable published
rules and regulations thereunder.
(xvii) Deloitte & Touche LLP ("Deloitte"), who have
certified certain financial statements of Classic, and delivered
their report with respect thereto, are independent public accountants
with respect to the Company and Classic within the meaning of the Act
and the applicable published rules and regulations thereunder.
(xviii) PricewaterhouseCoopers LLP (together with
its predecessor Coopers & ▇▇▇▇▇▇▇ LLP, "Coopers"), who have certified
certain financial statements of MTI, and delivered their report with
respect thereto, are independent public accountants with respect to
the Company and MTI within the meaning of the Act and the applicable
published rules and regulations thereunder.
(xvix) There are no transfer taxes or other similar
fees or charges under Federal law or the laws of any state, or any
political subdivision thereof, required to be paid in connection with
the execution and delivery of this Agreement or the issuance by the
Company or sale by the Company of the Securities.
(xx) The Company and each of its subsidiaries has
filed all foreign, Federal, state and local tax returns that are
required to be filed or has requested extensions thereof (except in
any case in which the failure so to file would not have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto)), and has paid
all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty that
is currently being contested in good faith or as would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, or except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(xxi) No labor problem or dispute with the employees
of the Company or any of its subsidiaries exists or is threatened or
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its subsidiaries'
principal suppliers, contractors or customers, that could have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising
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from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(xxii) 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; all policies of insurance
and fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and
its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; 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; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(xxiii) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such subsidiary's
capital stock, from repaying to the Company any loans or advances to
such subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary
of the Company, except as described in or contemplated by the
Prospectus.
(xxiv) The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate Federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor
any such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization
or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(xxv) The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in
accordance with management's general or specific
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authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(C) access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxvi) 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
Securities.
(xxvii) The Company and its subsidiaries are (A) in
compliance with any and all applicable foreign, Federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (C) have not received notice
of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse change in
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto). Except as set forth in the
Prospectus, neither the Company nor any of the subsidiaries has been
named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(xxviii) The costs and liabilities associated with
the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws,
or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties)
could not reasonably be expected, singly or in the aggregate, to have
a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement
thereto).
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(xxvix) Each of the Company and its subsidiaries has
fulfilled its obligations, if any, under the minimum funding
standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement
Income Security Act of 1974 ("ERISA") and the regulations and
published interpretations thereunder with respect to each "plan" (as
defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its
subsidiaries are eligible to participate and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred
any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to
any such plan under Title IV of ERISA.
(xxx) The subsidiaries listed in Exhibit 21.1 to the
Registration Statement hereto include all significant subsidiaries of
the Company as defined in Rule 1-02 of Regulation S-X.
(xxxi) The Company and its subsidiaries own,
possess, license or have other rights to use, on reasonable terms, all
patents, patent applications, trade and service marks, trade and
service ▇▇▇▇ 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 business of the Company and its subsidiaries as now
conducted or as proposed in the Prospectus to be conducted.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
(b) Each Selling Shareholder represents and warrants to, and
agrees with, each Underwriter that:
(i) Such Selling Shareholder is the lawful owner of
the Securities to be sold by such Selling Shareholder hereunder and
upon sale and delivery of, and payment for, such Securities, as
provided herein, such Selling Shareholder will convey to the
Underwriters good and marketable title to such Securities, free and
clear of all liens, encumbrances, equities and claims whatsoever.
(ii) Such Selling Shareholder 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 Securities.
(iii) Certificates in negotiable form for such
Selling Shareholder's Securities have been placed in custody, for
delivery pursuant to the terms of this
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Agreement, under a Custody Agreement and Power of Attorney duly
authorized, executed and delivered by such Selling Shareholder, in the
form heretofore furnished to you (the "Custody Agreement") with
American Stock Transfer & Trust Company, as Custodian (the
"Custodian"); the Securities represented by the certificates so held
in custody for each Selling Shareholder are subject to the interests
hereunder of the Underwriters; the arrangements for custody and
delivery of such certificates, made by such Selling Shareholder
hereunder and under the Custody Agreement, are not subject to
termination by any acts of such Selling Shareholder, or by operation
of law, whether by the death or incapacity of such Selling Shareholder
or the occurrence of any other event; and if any such death,
incapacity or any other such event shall occur before the delivery of
such Securities hereunder, certificates for the Securities will be
delivered by the Custodian in accordance with the terms and conditions
of this Agreement and the Custody Agreement as if such death,
incapacity or other event had not occurred, regardless of whether or
not the Custodian shall have received notice of such death, incapacity
or other event.
(iv) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by such Selling Shareholder of the transactions
contemplated herein, except such as may have been obtained under the
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained.
(v) Neither the sale of the Securities being sold by
such Selling Shareholder nor the consummation of any other of the
transactions herein contemplated by such Selling Shareholder or the
fulfillment of the terms hereof by such Selling Shareholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or the charter or by-laws of such Selling
Shareholder or the terms of any indenture or other agreement or
instrument to which such Selling Shareholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to such Selling Shareholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over such Selling Shareholder or any
of its subsidiaries.
(vi) Such Selling Shareholder has no reason to
believe that the representations and warranties of the Company
contained in this Section 1 are not true and correct, is familiar with
the Registration Statement and has no knowledge of any material fact,
condition or information not disclosed in the Prospectus or any
supplement thereto which has materially adversely affected or may
materially adversely affect the business of the Company or any of its
subsidiaries; and the sale of Securities by such Selling Shareholder
pursuant hereto is not prompted by any information concerning the
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Company or any of its subsidiaries which is not set forth in the
Prospectus or any supplement thereto.
(vii) In respect of any statements in or omissions
from the Registration Statement or the Prospectus or any supplements
thereto made in reliance upon and in conformity with information
furnished in writing to the Company by any Selling Shareholder
specifically for use in connection with the preparation thereof, such
Selling Shareholder hereby makes the same representations and
warranties to each Underwriter as the Company makes to such
Underwriter under paragraph (a)(ii) of this Section.
Any certificate signed by any officer of any Selling Shareholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by such Selling Shareholder, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $__________ per share, the
amount of the Underwritten Securities set forth opposite such Underwriter's
name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Selling Shareholders
hereby grant an option to the several Underwriters to purchase, severally and
not jointly, up to 450,000 Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised in
whole or in part at any time (but not more than once) on or before the 30th day
after the date of the Prospectus upon written or telegraphic notice by the
Representatives to the Selling Shareholders setting forth the number of shares
of the Option Securities as to which the several Underwriters are exercising
the option and the settlement date. Delivery of certificates for the shares of
Option Securities by the Selling Shareholders and payment therefor to the
Selling Shareholders, shall be made as provided in Section 3 hereof. The
maximum number of Option Securities which each Selling Shareholder agrees to
sell is set forth in Schedule II hereto. In the event that the Underwriters
exercise less than their full over-allotment option, the number of Option
Securities to be sold by each Selling Shareholder listed on Schedule II shall
be, as nearly as practicable, in the same proportion as the maximum number of
Option Securities to be sold by each party bears to the maximum aggregate
number of Option Securities to be sold. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing
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of the Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for
in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at 10:00 AM, New York
City time, on ____________, 1998, or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement among the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the
respective aggregate purchase prices of the Securities being sold by the
Company and, if applicable, each of the Selling Shareholders to or upon the
order of the Company and, if applicable, the Custodian by wire transfer payable
in same-day funds to the accounts specified by the Company and, if applicable,
the Custodian. Delivery of the Underwritten Securities and the Option
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Selling Shareholders will
deliver the Option Securities (at the expense of the Company) to the
Representatives on the date specified by the Representatives (which shall be
within three Business Days after exercise of said option) for the respective
accounts of the several Underwriters, against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Custodian by wire transfer payable in same-day funds to
the account specified by the Custodian. If settlement for the Option
Securities occurs after the Closing Date, the Selling Shareholders will deliver
to the Representatives on the settlement date for the Option Securities, and
the obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
5. Agreements.
(a) The Company agrees with the several Underwriters that:
(i) The Company will use its best efforts to cause
the Registration Statement, if not effective at the Execution Time,
and any amendment thereof, to become effective. Prior to the
termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement to the
Prospectus or any
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Rule 462(b) Registration Statement unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing.
The Company promptly will advise the Representatives (A) when the
Registration Statement, if not effective at the Execution Time, shall
have become effective, (B) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (C) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (D)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Prospectus or for any additional
information, (E) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (F)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) If, at any time when a prospectus relating to
the Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the rules thereunder, the
Company promptly will (A) notify the Representatives of any such
event; (B) prepare and file with the Commission, subject to the second
sentence of paragraph (a)(i) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance; and (C) supply any supplemented Prospectus to you in
such quantities as you may reasonably request.
(iii) As soon as practicable, the Company will make
generally available to its security holders and to the Representatives
an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
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(iv) The Company will furnish to the Representatives
and counsel for the Underwriters signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any supplement thereto as the Representatives may
reasonably request.
(v) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the distribution
of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is
not now so subject.
(vi) The Company will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, for a period of one hundred eighty
(180) days following the Execution Time, offer, sell or contract to
sell, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, or announce the
offering of, any other shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock;
provided, however, that the Company may issue and sell Common Stock
pursuant to any employee stock option plan, employee stock purchase
plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time and the Company may issue
Common Stock issuable upon the exercise or conversion of options,
convertible securities or warrants outstanding at the Execution Time.
(vii) The Company will not take, directly or
indirectly, any action designed to or which, under the Exchange Act or
otherwise, has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(viii) The Company agrees to pay the costs and
expenses relating to the following matters: (A) the preparation,
printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, the Prospectus, and each
amendment or supplement to any of them; (B) the printing (or
reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in
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connection with the offering and sale of the Securities; (C) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes
in connection with the original issuance and sale of the Securities;
(D) the printing (or reproduction) and delivery of this Agreement, any
blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (E) the registration of the Securities under the Exchange
Act and the listing of the Securities on the NYSE; (F) any
registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (G) any
filings required to be made with the National Association of
Securities Dealers, Inc. (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such
filings); (H) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (I) the fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (J) all
other costs and expenses incident to the performance by the Company
and the Selling Shareholders of their obligations hereunder.
(ix) The Company will use and apply the net proceeds
received by it from the sale of the Securities hereunder as set forth
under "Use of Proceeds" in the Prospectus.
(b) Each Selling Shareholder agrees with the several
Underwriters that:
(i) Such Selling Shareholder will not take any
action designed to or which has constituted or which, under the
Exchange Act or otherwise, might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(ii) Such Selling Shareholder will advise you
promptly, and if requested by you will confirm such advice in writing,
so long as delivery of a prospectus relating to the Securities by an
underwriter or dealer may be required under the Act, of (A) any
material change in the Company's condition (financial or otherwise),
prospects, earnings, business or properties, (B) any change in
information in the Registration Statement or the Prospectus relating
to such Selling Shareholder or (C) any new material information
relating to the Company or relating to any matter stated in the
Prospectus which comes to the attention of such Selling Shareholder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Shareholders contained herein as of the Execution Time, the Closing Date and
any settlement date pursuant to Section 3 hereof, to the accuracy of the
statements of
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the Company and the Selling Shareholders made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Shareholders of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York City time
on such date or (ii) 9:30 AM on the Business Day following the day on which the
public offering price was determined, if such determination occurred after 3:00
PM New York City time on such date; if filing of the Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and
any such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) each of the Company and the subsidiaries listed
in Exhibit 21.1 to the Registration Statement (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own or lease, as
the case may be, and to operate its properties and conduct its
business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction listed on an attachment to such opinion
which, to such counsel's knowledge, are the only jurisdictions in
which the Company or the applicable Subsidiary owns or leases real
property or has employees;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth
in the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization
is as set forth in the Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Prospectus; the outstanding shares of Common Stock (including
the Securities to be sold hereunder by the Selling Shareholders) have
been duly and validly authorized and issued and are fully paid and
nonassessable; the
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Securities being sold hereunder by the Company have been duly and
validly authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities being sold hereunder by the Company and
the Selling Shareholders are duly listed, and admitted and authorized
for trading, subject to official notice of issuance and evidence of
satisfactory distribution, on the NYSE; the certificates for the
Securities are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to subscribe for the Securities under
the New York Business Corporation Law ("NYBCL"), the Company's charter
and by-laws or, to the knowledge of such counsel, otherwise; and,
except as set forth in the Prospectus, to the knowledge of such
counsel, no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries or its or their
property of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and
there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit thereto, which is not described or filed
as required; and the statements in the Prospectus under the headings
"Risk Factors -- Shares Eligible for Future Sale; Registration Rights
Agreement", "Risk Factors -- Anti-Takeover Effect of Certain Charter
and Bylaw Provisions", "The Recapitalization", "The Acquired
Companies", "Management", "Certain Transactions", "Description of
Capital Stock", "Shares Eligible for Future Sale" and "Underwriting",
to the extent such statements constitute matters of law or legal
conclusions or summaries of legal documents, fairly summarize the
matters therein described;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial information and statistical data contained therein, as
to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act and
the rules thereunder;
(vi) the Company has full legal right, power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby; this Agreement has been duly
authorized, executed and delivered by the Company;
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(vii) the Company is not and, after giving effect
to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(viii) no consent, approval, authorization, filing
with or order of any court or governmental agency or body is required
in connection with the transactions contemplated herein, except such
as have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Prospectus and such other
approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation of, or result in the imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or its subsidiaries pursuant to (A) the charter or by-laws of
the Company or its subsidiaries, (B) the terms of any material
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument known to such counsel to which the Company or its
subsidiaries is a party or bound or to which its or their property is
subject, or (C) to the knowledge of such counsel, any statute, law,
rule, regulation, judgment, order or decree applicable to the Company
or its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries or any of its or
their properties; and
(x) to the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
In addition to the foregoing opinions, such counsel shall state that,
during the course of the preparation of the Registration Statement, such
counsel participated in conferences with officers and other representatives of
the Company, with representatives of the independent public accountants of the
Company and with the Representatives and counsel for the Underwriters and that,
although such counsel has not undertaken to determine independently, and does
not assume any responsibility for, the accuracy, completeness, or fairness of
the statements in the Registration Statement or Prospectus, no facts have come
to the attention of such counsel which cause such counsel to believe that the
Registration Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus, as of its date and on the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein,
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in the light of the circumstances under which they were made, not misleading,
provided that in making the foregoing statement (which shall not constitute an
opinion), such counsel need not express any views as to the financial
statements and other financial information and statistical data included in the
Registration Statement or the Prospectus.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date. The opinion of such counsel shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(c) The Selling Shareholders shall have furnished to the
Representatives the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Selling
Shareholders, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) Each Selling Shareholder has full legal right,
power and authority to enter into this Agreement and the respective
Custody Agreement, to sell, transfer and deliver in the manner
provided in this Agreement and the Custody Agreement the Securities
being sold by such Selling Shareholder hereunder and to consummate the
other transactions contemplated hereby. This Agreement and the
respective Custody Agreement have been duly authorized, executed and
delivered by each Selling Shareholder and the respective Custody
Agreement constitutes a valid and binding obligation of the respective
Selling Shareholder enforceable in accordance with its terms.
(ii) The delivery by each Selling Shareholder to the
several Underwriters of certificates for the Securities being sold
hereunder by such Selling Shareholder against payment therefor as
provided herein, will pass good and marketable title to such
Securities to the several Underwriters, free and clear of all liens,
encumbrances, equities and claims whatsoever.
(iii) To the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental agency
or body is required for the consummation by any Selling Shareholder of
the transactions contemplated herein, except such as may have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained.
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(iv) To the knowledge of such counsel, neither the
sale of the Securities being sold by any Selling Shareholder nor the
consummation of the other transactions herein contemplated and the
fulfillment of the terms hereof by any Selling Shareholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or, if applicable, the charter, By-laws or other
governing documents of the Selling Shareholder, or the terms of any
indenture or other agreement or instrument known to such counsel and
to which any Selling Shareholder is a party or bound, or any judgment,
order or decree known to such counsel to be applicable to any Selling
Shareholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over any Selling
Shareholder.
In rendering such opinion and statements, such counsel may rely (A) as
to matters involving the application of laws of any jurisdiction other than the
State of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Selling
Shareholders, the Company and public officials. The opinion of such counsel
shall be rendered to the Representatives at the request of the Company and
shall so state therein.
(d) The Representatives shall have received from ▇▇▇▇ and
▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Registration Statement, the Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company and each Selling
Shareholder shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters. The opinion or
opinions of such counsel shall be rendered to the Underwriters at the request
of the Company and shall so state therein.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any supplements
to the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if made
on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions under this Agreement on
its part to be performed or satisfied at or prior to the Closing Date;
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(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any supplement
thereto), there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(f) Each Selling Shareholder shall have furnished to the
Representatives a certificate of such Selling Shareholder, dated the Closing
Date, to the effect that the representations and warranties of such Selling
Shareholder in this Agreement are true and correct in all material respects on
and as of the Closing Date to the same effect as if made on the Closing Date.
(g) At the Execution Time and at the Closing Date, AA,
Deloitte and Coopers shall have furnished to the Representatives letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the applicable
published rules and regulations thereunder in accordance with Statement on
Auditing Standards No. 71, and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules included in the
Registration Statement and the Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(ii) in the case of AA only, on the basis of a
reading of the latest unaudited financial statements made available by
the Company and its subsidiaries; their limited review in accordance
with standards established under Statement on Auditing Standards No.
71, of the unaudited interim financial information for the three month
periods ended March 31, 1997 and 1998 and as at March 31, 1998;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the shareholders and directors of the Company and the
Subsidiaries; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent
to December 31, 1997 nothing came to their attention which caused them
to believe that:
(A) any unaudited financial statements
included in the Registration Statement and the Prospectus do
not comply as to form in all
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material respects with applicable accounting requirements of
the Act and with the published rules and regulations of the
Commission with respect to registration statements on Form
S-1; and said unaudited financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Registration
Statement and the Prospectus;
(B) with respect to the period subsequent to
March 31, 1998, there were any changes, at a specified date
not more than five days prior to the date of the letter, in
the long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the shareholders'
equity of the Company as compared with the amounts shown on
the March 31, 1998 consolidated balance sheet included in the
Registration Statement and the Prospectus, or for the period
from April 1, 1998 to such specified date there were any
decreases, as compared with the corresponding period in the
preceding year, in net revenues or income before income taxes
or in total or per share amounts of net income of the Company
and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Representatives; or
(C) the information included in the
Registration Statement and Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K.
(iii) in the case of AA only, they have performed
certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
the Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus, including the information set forth
under the caption "Selected Financial Data" in the Prospectus, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) in the case of AA only, on the basis of a
reading of the unaudited pro forma financial statements included in
the Registration Statement and the Prospectus (the "pro forma
financial statements"); carrying out certain specified procedures;
inquiries of
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certain officials of the Company, Haddon, Classic and MTI who have
responsibility for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing
came to their attention which caused them to believe that the pro
forma financial statements do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.
References to the Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (g) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(i) The Securities shall have been listed and admitted and
authorized for trading on the NYSE, and satisfactory evidence of such actions
shall have been provided to the Representatives.
(j) At the Execution Time, the Company shall have furnished
to the Representatives a letter substantially in the form of Exhibit A hereto
from each officer and director of the Company and other shareholders who
collectively hold at least the number of shares of Common Stock as is indicated
as being subject to such letters under the caption "Shares Eligible for Future
Sale" in the Prospectus, addressed to the Representatives.
(k) Prior to the Closing Date, the Company and the Selling
Shareholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation
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shall be given to the Company and each Selling Shareholder in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Underwriters, at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses; Directed Share Program.
(a) If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant
to Section 10 hereof or because of any refusal, inability or failure on the
part of the Company or any Selling Shareholders to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
(b) In connection with this offering, the Company has
requested the Underwriters to reserve up to 150,000 shares of Common Stock for
sale to the Company's employees and certain other persons designated by the
Company (the "Directed Share Program"), and has asked ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ to
assist the Company in administering the Directed Share Program. The Company
hereby agrees to reimburse ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney for any and all expenses or
losses incurred by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ as a result of the failure of any of
the participants in the Directed Share Program to pay for and accept delivery
of shares for which such participant gave an indication of interest and, after
the effectiveness of the Registration Statement, confirmed their desire to
purchase the shares of Common Stock allocated to them.
8. Indemnification and Contribution.
(a) The Company and the Selling Shareholders jointly and
severally agree (subject in the case of the Selling Shareholders to subsection
8(e) below) to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
-25-
26
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company and the Selling Shareholders will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company or the Selling Shareholders may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and each
Selling Shareholder, to the same extent as the foregoing indemnity to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The
Company and each Selling Shareholder acknowledge that the statements set forth
(i) in the last paragraph of the cover page regarding delivery of the
Securities, (ii) in the legend in block capital letters on the inside front
cover page related to stabilization, syndicate covering transactions and
penalty bids and (iii) in the third and seventh paragraphs under the heading
"Underwriting" in any Preliminary Prospectus, the Prospectus and the
Registration Statement constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus, the Prospectus or the Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party
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shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Selling Shareholders,
jointly and severally, and the Underwriters severally agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which the Company, the Selling Shareholders
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and by the Underwriters on the other from
the offering of the Securities; provided, however,that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Selling Shareholders, jointly and severally, and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Shareholders on the one hand and of the Underwriters on the other in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company and
the Selling Shareholders shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by them and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company or the Selling Shareholders on
the one hand or the Underwriters on the other, the intent
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28
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Shareholders and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), 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. For purposes
of this Section 8, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The liability of each Selling Shareholder under such
Selling Shareholder's representations and warranties contained in Section 1
hereof and under the indemnity and contribution agreements contained in this
Section 8 shall be limited to an amount equal to the initial public offering
price of the Securities sold by such Selling Shareholder to the Underwriters.
The Company and the Selling Shareholders may agree, as among themselves and
without limiting the rights of the Underwriters under this Agreement, as to the
respective amounts of such liability for which they each shall be responsible.
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such non-defaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
non-defaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
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10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (a) trading in the Company's Common Stock shall have been suspended
by the Commission or the NYSE or trading in securities generally on the NYSE
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (b) a banking moratorium shall have been declared
either by Federal or New York State authorities or (c) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers, of each Selling Shareholder and of the
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, any Selling Shareholder or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ General Counsel (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (33rd Floor), New York, New York, 10013, Attention:
General Counsel, with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇);
or, if sent to the Company, will be mailed, delivered or telefaxed to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Chairman of the Board and Chief Executive Officer (fax no.: (202)
▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, attention of the Chairman and Chief Executive Officer,
with a copy to ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇); or if sent to
any Selling Shareholder, will be mailed, delivered or telefaxed and confirmed
to it at the address set forth in Schedule II hereto, with a copy to ▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇ at the address shown in the previous clause.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
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14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New
York City or Washington, D.C.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that
omits Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and
financial statements, as amended at the
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Execution Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, also shall mean
such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include
any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration
statement.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney" shall mean ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. or Salomon
Brothers Inc to the extent that either such party is a signatory to
this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
GLOBAL VACATION GROUP, INC.
By:
-----------------------------
Name:
Title:
SELLING SHAREHOLDERS:
▇▇▇▇▇▇ EQUITY INVESTORS III, L.P.
By: TC EQUITY PARTNERS, LLC,
General Partner
By:
------------------------
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32
Name:
Title:
TC CO-INVESTORS LLC
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC
By: ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By:
-----------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
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33
SCHEDULE I
Number of
Underwritten
Securities to
be Purchased
------------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. .................................................
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC .............................
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ....................................
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC ........................................
----------
Total ............................................. 3,000,000
=========
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34
SCHEDULE II
Number of Shares
of Common Stock
Under Option
-----------------
▇▇▇▇▇▇ Equity Investors III, L.P. ...................................... 445,940
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TC Co-Investors LLC .................................................... 4,060
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-------
Total .......................................... 450,000
=======
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35
[FORM OF LOCK-UP AGREEMENT] EXHIBIT A
GLOBAL VACATION GROUP, INC. LOCK-UP LETTER
June ,1998
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned understands that you and certain other firms propose
to enter into an Underwriting Agreement (the "Underwriting Agreement")
providing for the purchase by you and such other firms (the "Underwriters") of
shares (the "Shares") of Common Stock, par value $.01 per share (the "Common
Stock"), of Global Vacation Group, Inc. (the "Company") and that the
Underwriters propose to re-offer the Shares to the public.
In consideration of the execution of the Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that without the prior written consent of ▇▇▇▇▇
▇▇▇▇▇▇ Inc. the undersigned will not (and, except as may be disclosed in the
Prospectus, will not announce or disclose any intention to) sell, offer to
sell, solicit an offer to buy, contract to sell, grant any option to purchase,
or otherwise transfer or dispose of, any shares of Common Stock, or any
securities convertible into or exercisable or exchangeable for Common Stock,
for a period of 180 days after the date of the final Prospectus relating to the
offering of the Shares to the public by the Underwriters. Prior to the
expiration of such period, the undersigned will not announce or disclose any
intention to do anything after the expiration of such period which the
undersigned is prohibited, as provided in the preceding sentence, from doing
during such period.
Notwithstanding the foregoing, the undersigned may transfer any or all
shares of Common Stock held by it (i) as a bona fide gift or gifts or (ii) as a
distribution to limited partners or shareholders of such person; provided the
transferee or transferees thereof agree(s) in writing as a condition precedent
to such transfer to be bound by the terms hereof. The transferor shall notify
▇▇▇▇▇ ▇▇▇▇▇▇, Inc. in writing prior to the transfer, and there shall be no
further transfer of such shares except in accordance with this letter
agreement. Moreover, notwithstanding any other provision of this letter
agreement, the undersigned may exercise during the 180 day period described
above any option to purchase shares of Common Stock, provided, however, that
any shares so acquired shall be subject to the provisions of this letter
agreement.
The undersigned agrees that the provisions of this letter agreement
shall be binding also upon the successors, assigns, heirs and personal
representatives of the undersigned.
In furtherance of the foregoing, the Company and its Transfer Agent
are hereby authorized to decline to make any transfer of securities if such
transfer would constitute a violation or breach of this letter agreement.
36
It is understood that, if the Underwriting Agreement does not become
effective, or if the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment
for and delivery of the Shares, you will release us from our obligations under
this letter agreement.
Very truly yours,
-------------------------
Name:
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