1
EXHIBIT 1.1
1,500,000 SHARES
▇▇▇▇▇▇▇ LEISURE LIMITED
COMMON SHARES
PAR VALUE (U.S.) $.01 PER SHARE
UNDERWRITING AGREEMENT
March __, 1999
ING BARING ▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
c/o ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. INTRODUCTION. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Selling Shareholder") proposes
to issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), for which ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C. are acting as
representatives (the "Representatives"), an aggregate of 1,500,000 Common
Shares, par value (U.S.) $.01 per share (the "Common Shares") of ▇▇▇▇▇▇▇
Leisure Limited, a Bahamas international business company (the "Company"). The
1,500,000 Common Shares to be sold by the Selling Shareholder are referred to
herein as the "Firm Shares." The Selling Shareholder also proposes to sell to
the several Underwriters an aggregate of not more than 225,000 additional Common
Shares (the "Additional Shares") if requested by the Underwriters in accordance
with Section 9 hereof. The Firm Shares and the Additional Shares are
collectively referred to herein as the "Shares." The words "you" and "your"
refer to the Representatives of the Underwriters. If you are the only
Underwriters, all references herein to the Representatives shall be deemed to be
to the Underwriters.
The Company and the Selling Shareholder hereby agree with the several
Underwriters as follows:
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(xxv) Except as set forth in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding loans, advances or guarantees of
indebtedness by the Company or any of its subsidiaries to or for the
benefit of any of their officers, directors, partners or controlling
persons, or any of the members of the families of any of them.
(xxvi) The acquisition of the Company's interests in
each of its subsidiaries has been consummated in accordance with the
terms of the applicable purchase documents, and the Company is not
and, to the Company's knowledge, no other party to such documents is,
in default thereunder and no event has occurred which, with notice or
lapse of time or both, would constitute a default by the Company or
any other parties thereto under such purchase documents, except for
defaults which, singly or in the aggregate, would not have a Material
Adverse Effect.
(xxvii) After considering the nature of the historical,
current and projected income and assets of the Company and its
subsidiaries and the continuing ownership of Common Shares by ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ following the Closing Date, the Company reasonably believes
that it has not been, is not and, immediately after the Closing Date,
will not become a "controlled foreign corporation" for purposes of
Sections 951 through 964 of the United States Internal Revenue Code of
1986, as amended (the "Code"), a "foreign personal holding company"
for purposes of Sections 551 through 559 of the Code (a "FPHC") or a
"passive foreign investment company" for purposes of Sections 1291
through 1298 of the Code (a "PFIC"). In addition, the Company will
endeavor to conduct its affairs and cause its subsidiaries to conduct
their affairs so that the Company will not become a PFIC. The Company
is aware of the effect on its shareholders that would result from its
being deemed an FPHC and, in the conduct of its affairs, it will
consider such effect in determining whether its actions are in the
best interests of its shareholders.
(xxviii) Neither the Company nor any of its officers,
directors or affiliates (within the meaning of the Rules and
Regulations) has since the initial filing of the Registration
Statement (A) sold, bid for, purchased, attempted to induce any person
to purchase, or paid anyone any compensation for soliciting purchases
of, Common Shares, or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the
Company (except for the sale of the Shares to be sold by the Selling
Shareholder pursuant to this Agreement and except as otherwise
permitted by law).
(xxix) The Company has made all filings required to be
made by it under the Exchange Act.
(xxx) The three-for-two splits of the Common Shares
effected on October 24, 1997 and April 28, 1998, respectively (the
"Share Splits"), were made in compliance with the Company's Memorandum
of Association and Articles of Association and
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claims and, to the best knowledge of such counsel, except for the
shares of each of the subsidiaries of the Company owned by the Company
or any such subsidiaries, neither the Company nor any such subsidiary
owns any shares or any other equity securities of any company or
corporation or has any equity interest in any firm, partnership,
association or other entity, except as described in or contemplated by
the Prospectus;
(iii) The U.K. Subsidiaries have the corporate power
and authority to own, lease and operate each of their respective
properties and to conduct their respective businesses as described in
the Prospectus, and the conduct of such businesses do not violate the
provisions of their respective Memoranda and Articles of Association
or any applicable law, regulation, order or decree of England and
Wales;
(iv) No U.K. Subsidiary is currently prohibited,
directly or indirectly, from paying any dividends to the Company
(subject to the provisions of the corporate laws of England and Wales
governing dividends), from making any other distribution on such
subsidiary's share capital, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any
of such subsidiary's property (subject to the respective landlord's
consent with respect to real property) or assets to the Company or any
other subsidiary of the Company, except as described in or
contemplated by the Prospectus; and
(v) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending or threatened to which
any of the U.K. Subsidiaries is a party or to which any of the U.K.
Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described.
References to the Registration Statement and the Prospectus
in this paragraph (f) shall include any amendment or supplement thereto at the
date of such opinion.
(g) On or prior to the Closing Date, counsel to the
Underwriters shall have been furnished such documents, certificates and
opinions as they may reasonably require in order to evidence the accuracy,
completeness or satisfaction of any of the representations or warranties of the
Company or the Selling Shareholder, or conditions herein contained.
(h) At the time that this Agreement is executed by the
Company, the Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a
letter, as of the date this Agreement is executed by the Company, in form and
substance satisfactory to you (the "Original Letter"), and on the Closing Date
the Underwriters shall have received from such firm a letter dated the Closing
Date stating that, as of a specified date not earlier than five (5) days prior
to the Closing Date, nothing has come to the attention of such firm to suggest
that the statements made in the Original Letter are not true and correct.
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any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or the Prospectus or any Preliminary Prospectus,
or any amendment or supplement thereto, or any blue sky application or other
document executed by the Company specifically for the purpose of qualifying, or
based upon written information furnished by the Company or the Selling
Shareholder filed in any state or other jurisdiction in order to qualify, any
or all of the Shares under the securities or blue sky laws thereof (any such
application, document or information being hereinafter called a "Blue Sky
Application"), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements made therein not misleading in light of the
circumstances under which they were made and will reimburse, on a monthly
basis, such Underwriter or such controlling persons for any legal or other
expenses incurred by such Underwriter or such controlling persons in connection
with investigating, defending or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action; provided,
HOWEVER, that the Company and the Selling Shareholder will not be liable in any
such case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon any such untrue statement or alleged untrue
statement or such omission or alleged omission made in any of such documents in
reliance upon and in conformity with information furnished in writing to the
Company on behalf of such Underwriter through the Representatives expressly for
use therein, and PROVIDED, FURTHER, that such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage, liability or action purchased Shares
which are the subject thereof to the extent that any such loss, claim, damage,
liability or action (i) results from the fact that such Underwriter failed to
send or give a copy of the Prospectus (as amended or supplemented) to such
person at or prior to the confirmation of the sale of such Shares to such
person in any case where such delivery is required by the Act and (ii) arises
out of or is based upon an untrue statement or omission of a material fact
contained in such Preliminary Prospectus that was corrected in the Prospectus
(as amended and supplemented), unless such failure resulted from non-compliance
by the Company with Section 5(a)(viii) hereof. Notwithstanding the foregoing,
the Selling Shareholder shall have no liability under this Section 8(a) for
losses, claims, damages or liabilities in an amount in excess of the total net
proceeds (before deducting expenses) received by the Selling Shareholder for
all Shares sold by it. The indemnity agreement in this paragraph (a) shall be
in addition to any liability which the Company and the Selling Shareholder may
otherwise have.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, the Selling Shareholder and
each person, if any, who controls the Company or the Selling Shareholder within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any and all losses, claims, damages or liabilities (and actions in respect
thereof) to which the Company, the Selling Shareholder or such director,
officer or controlling person may become subject, under the Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or the Prospectus or any
Preliminary Prospectus, or any amendment or supplement thereto, or in any Blue
Sky Application, or arise out of or are based upon the omission or the alleged
omission to state
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2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents, warrants and agrees with each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No.
333-73363) under the Securities Act of 1933, as amended (the "Act"),
with respect to the Shares, including a form of prospectus subject to
completion, has been prepared by the Company in conformity with the
requirements of the Act and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder (the
"Rules and Regulations"). The Company meets the requirements for use
of Form S-3 under the Act and the Rules and Regulations. Such
registration statement has been filed with the Commission under the
Act, and one or more amendments to such registration statement may
also have been so filed. After the execution of this Agreement, the
Company shall file with the Commission either (A) if such registration
statement, as it may have been amended, has been declared by the
Commission to be effective under the Act, either (1) if the Company
relies on Rule 434 under the Act, a Term Sheet (as hereinafter
defined) relating to the Shares, that shall identify the Preliminary
Prospectus (as hereinafter defined) that it supplements and containing
such information as is required by Rules 434 and 430A under the Act or
permitted by Rule 424(b) under the Act or (2) if the Company does not
rely on Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement filed with the
Commission (or, if no such amendment shall have been filed, in such
registration statement), with such insertions and changes as are
required by Rule 430A under the Act or permitted by Rule 424(b) under
the Act, and in the case of either clause (A)(1) or (A)(2) of this
sentence as shall have been provided to and approved by the
Representatives prior to the filing thereof, or (B) if such
registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the Act, an amendment
to such registration statement, including a form of prospectus, a copy
of which amendment has been furnished to and approved by the
Representatives prior to the filing thereof. As used in this
Agreement, the term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared
effective, including all financial schedules and exhibits thereto and
all documents incorporated therein by reference; the Registration
Statement shall be deemed to include any information omitted therefrom
pursuant to Rule 430A under the Act and included in the Prospectus (as
hereinafter defined); the term "Preliminary Prospectus" means each
prospectus subject to completion contained in such registration
statement or any amendment thereto (including the prospectus subject
to completion, if any, included in the Registration Statement or any
amendment thereto or filed pursuant to Rule 424(a) under the Act at
the time it was or is declared effective); the term "Prospectus"
means: (A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Shares that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements; (B) if the
Company does not rely on Rule 434 under the Act, the prospectus first
filed with the Commission pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and if
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no prospectus is required to be filed pursuant to Rule 424(b) under
the Act, the prospectus included in the Registration Statement; and
the term "Term Sheet" means any term sheet that satisfies the
requirements of Rule 434 under the Act. Any reference to the "date" of
a Prospectus that contains a Term Sheet shall mean the date of such
Term Sheet. To the extent the Company relies on Rule 462(b) under the
Act ("Rule 462(b)") to increase the maximum aggregate offering price,
the Company shall have made in a timely manner any filing required
under Rule 462(b) and such filing shall be in compliance with such
Rule. References herein to any document or other information
incorporated by reference in the Registration Statement shall include
documents or other information incorporated by reference in the
Prospectus (or, if the Prospectus is not in existence, in the most
recent Preliminary Prospectus). Reference made herein to any
Preliminary Prospectus or the Prospectus shall be deemed to include
all documents and information incorporated by reference therein and
shall be deemed to refer to and include any documents and information
filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, and so incorporated by reference, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(ii) The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus and has not
instituted or threatened to institute any proceedings with respect to
such an order. When any Preliminary Prospectus was filed with the
Commission it (A) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Act and the Rules and Regulations and (B) did
not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto
was or is declared effective, it (A) contained or will contain all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act and the Rules and Regulations and (B) did not or will not,
as the case may be, include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading. When the Prospectus and when any amendment or
supplement thereto is filed with the Commission pursuant to Rule
424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement and when any
amendment thereto containing such amendment or supplement to the
Prospectus was or is declared effective) and at all times subsequent
thereto up to and including the Closing Date (as defined in Section 3
hereof) and the Option Closing Date (as defined in Section 9 hereof),
the Prospectus, as amended or supplemented at any such time, including
any amendment or supplement effected by a Term Sheet, (A) contained or
will contain, as the case may be, all statements required to be stated
therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the Rules and
Regulations and (B) did not or will not include any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (ii) shall not apply to
statements or omissions made in any Preliminary Prospectus,
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the Registration Statement or any amendment thereto or the Prospectus
or any amendment or supplement thereto in reliance upon, and in
conformity with, information furnished in writing to the Company by or
on behalf of the Underwriters through the Representatives expressly
for use therein. The documents which are incorporated by reference in
any Preliminary Prospectus or the Prospectus or from which information
is so incorporated by reference, when they became effective or were
filed with the Commission, as the case may be, complied in all
material respects with the requirements of the Act and the Rules and
Regulations or the Exchange Act and the rules and regulations
thereunder, as applicable, and did not, when such documents were so
filed, contain any untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and any documents so filed and
incorporated by reference subsequent to the effective date of the
Registration Statement shall, when they are filed with the Commission,
conform in all material respects with the requirements of the Act and
the Rules and Regulations and the Exchange Act and the rules and
regulations thereunder, as applicable.
(iii) Each of the Company and its subsidiaries (A) is a
duly incorporated or formed, as the case may be, and validly existing
corporation or limited liability company, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
formation, with full power and authority (corporate and other) to own
or lease its properties and to conduct its business as described in
the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus); and (B)
is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction (x) in which the conduct of its
business requires such qualification (except for those jurisdictions
in which the failure to be so qualified has not had and will not have
a Material Adverse Effect (as hereinafter defined)) and (y) in which
it owns or leases property. "Material Adverse Effect" means, when used
in connection with the Company or its subsidiaries, any development,
change or effect that is materially adverse to the business,
properties, assets, net worth, condition (financial or other), results
of operations or prospects of the Company and its subsidiaries taken
as a whole.
(iv) The Company has the duly authorized and validly
outstanding capitalization set forth in the consolidated balance
sheets of the Company included in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). The securities of the Company conform to the descriptions
thereof contained in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus). The outstanding
Common Shares have been duly authorized and validly issued by the
Company and are fully paid and nonassessable, have been issued in
compliance with all Bahamian and U.S. federal and state securities
laws and were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities.
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Except as created hereby or referred to in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding options, warrants, rights or
other arrangements requiring the Company or any subsidiary at any time
to issue any capital stock. No holders of outstanding shares of capital
stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Shares and neither the filing of the
Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than
those which have been waived or satisfied, for or relating to the
registration of any securities of the Company. All the outstanding
shares of capital stock of each subsidiary of the Company that is a
corporation have been duly authorized and validly issued, are fully
paid and, with respect to the subsidiaries organized under the laws of
a United States jurisdiction, are nonassessable and, with respect to
the subsidiaries organized under the laws of The Bahamas and the United
Kingdom, are not subject to call for additional payments of any kind;
the subsidiary of the Company that is a limited liability company has
been duly formed under the laws of the State of Florida, and its
members are the Company, ▇▇▇▇▇▇▇ Transocean Limited and ▇▇▇▇▇▇▇ Beauty
Products, Inc.; all the outstanding shares of capital stock or
membership interests of each subsidiary of the Company are owned
directly, or indirectly through one or more subsidiaries of the
Company, by the Company (except (i) EBSC International Limited, 85% of
which is owned by the Company and 15% of which is owned by Eagleview
Investments Ltd., a British Virgin Islands company and (ii) ▇▇▇▇▇▇▇ Spa
Resorts Limited, 4,999 common shares of which are held by the Company
and one common share of which is held by an attorney of ▇▇▇▇▇ ▇. ▇▇▇▇▇
& Company) free and clear of any lien, encumbrance, security interest,
claim or other restriction whatsoever; the subsidiary of the Company
that is incorporated under the laws of the Netherlands, upon issuance
of its capital shares as currently proposed, will be wholly owned by
EBSC International Limited and has not engaged in any business activity
from the date of its incorporation to the date hereof. The Company has
received approval to have the Shares quoted on the Nasdaq Stock Market
and the Company knows of no reason or set of facts which is likely to
adversely affect such approval.
(v) The consolidated financial statements of the
Company and its subsidiaries and the related notes and schedules
thereto included in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus) fairly present the consolidated financial condition,
results of operations, stockholders' equity and cash flows of the
Company and its subsidiaries at the dates and for the periods
specified therein. Such financial statements and the related notes and
schedules thereto have been prepared in accordance with United States
generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise noted therein)
and such financial statements as are audited have been examined by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who are independent public accountants within the
meaning of the Act and the Rules and Regulations, as indicated in
their reports filed therewith. The selected financial information and
statistical data set forth under the captions "Prospectus
Summary--Summary Consolidated Financial and Operating Data," "Selected
Consolidated Financial Data," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Business" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
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Preliminary Prospectus) have been prepared on a basis consistent with
the consolidated financial statements or the books and records of the
Company and its subsidiaries.
(vi) The Company and each of its subsidiaries have
filed all necessary Bahamian, United Kingdom and United States
federal, state and local income, franchise and other material tax
returns and have paid all taxes shown as due thereunder, and the
Company has no knowledge of any tax deficiency which might be assessed
against the Company or any subsidiary which, if so assessed, may have
a Material Adverse Effect.
(vii) The Company and each of its subsidiaries maintain
insurance of the types and in amounts which they reasonably believe to
be adequate for their business in such amounts and with such
deductibles as is customary for companies in the same or similar
business, all of which insurance is in full force and effect.
(viii) Except as disclosed in the Registration
Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there is no
pending action, suit, proceeding or investigation or threatened
action, suit, proceeding or investigation before or by any court,
regulatory body or administrative agency or any other governmental
agency or body, domestic or foreign, which (A) questions the validity
of the capital stock of the Company or this Agreement or of any action
taken or to be taken by the Company pursuant to or in connection with
this Agreement, (B) is required to be disclosed in the Registration
Statement which is not so disclosed (and such proceedings, if any, as
are summarized in the Registration Statement are accurately summarized
in all material respects), or (C) may have a Material Adverse Effect.
(ix) The Company has full legal right, power and
authority to enter into this Agreement and to consummate the
transactions provided for herein. This Agreement has been duly
authorized, executed and delivered by the Company and, assuming it is
a binding agreement of yours, constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general application relating to or affecting the
enforcement of creditors' rights and the application of equitable
principles relating to the availability of remedies and except as
rights to indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws), and none
of the Company's execution or delivery of this Agreement, its
performance hereunder, its consummation of the transactions
contemplated herein or the conduct of its business as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), conflicts or will conflict with or results or
will result in any breach or violation of any of the terms or
provisions of, or constitutes or will constitute a default under,
causes or will cause (or permits or will permit) the maturation or
acceleration of any liability or obligation or the termination of any
right under, or result in the creation or imposition of any lien,
charge, or encumbrance upon, any property or assets of the Company or
any of its subsidiaries pursuant to the terms
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of (A) the respective Memorandum of Association, Articles of
Association, Articles of Organization, certificate of incorporation,
by-laws or other governing instruments of the Company or any of its
subsidiaries, (B) any indenture, mortgage, deed of trust, voting trust
agreement, shareholders' agreement, note agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which any of them are or may be bound or to which any of
their respective property is or may be subject or (C) any statute,
judgment, decree, order, rule or regulation applicable to the Company
or any of its subsidiaries of any government, arbitrator, court,
regulatory body or administrative agency or other governmental agency
or body, domestic or foreign, having jurisdiction over the Company,
any of its subsidiaries or any of their respective activities or
properties.
(x) All executed agreements or copies of executed
agreements filed as exhibits to the Registration Statement to which
the Company or any of its subsidiaries is a party or by which any of
them are or may be bound or to which any of their assets, properties
or businesses is or may be subject have been duly and validly
authorized, executed and delivered by the Company or such subsidiary,
as the case may be, and constitute the legal, valid and binding
agreements of the Company or such subsidiary, as the case may be,
enforceable against each of them in accordance with their respective
terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating
to enforcement of creditors' rights generally, and general equitable
principles relating to the availability of remedies, and except as
rights to indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws). The
descriptions in the Registration Statement of contracts and other
documents are accurate in all material respects and fairly present the
information required to be shown with respect thereto by the Act and
the Rules and Regulations, and there are no contracts or other
documents which are required by the Act or the Rules and Regulations
to be described in the Registration Statement or filed as exhibits to
the Registration Statement or incorporated therein by reference which
are not described or filed or incorporated by reference as required,
and the exhibits which have been filed or incorporated by reference
are complete and correct copies of the documents of which they purport
to be copies.
(xi) Subsequent to the most recent respective dates as
of which information is given in the Registration Statement or
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and except as expressly contemplated therein,
neither the Company nor any of its subsidiaries has incurred, other
than in the ordinary course of its business, any material liabilities
or obligations, direct or contingent, purchased any of its outstanding
capital stock, paid or declared any dividends or made any other
distributions on its capital stock or entered into any material
transactions not in the ordinary course of business, and there has
been no material change in capital stock or debt or any change in the
business, properties, assets, net worth, condition (financial or
other), or results of operations or prospects of the Company and its
subsidiaries taken as a whole which would have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries (or the manner
in which any of them conducts its business) is in breach or violation
of, or in default under, any
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term or provision of (A) its respective Memorandum of Association,
Articles of Association, Articles of Organization, certificate of
incorporation, bylaws or other governing instruments, (B) any
indenture, mortgage, deed of trust, voting trust agreement,
shareholders' agreement, note agreement or other agreement or
instrument to which it is a party or by which it is or may be bound or
to which any of its property is or may be subject, or any
indebtedness, the effect of which breach or default singly or in the
aggregate may have a Material Adverse Effect, or (C) any statute,
judgment, decree, order, rule or regulation applicable to the Company
or any of its subsidiaries of any arbitrator, court, regulatory body,
administrative agency or any other governmental agency or body,
domestic or foreign, having jurisdiction over the Company or any of
its subsidiaries or any of their respective activities or properties
and the effect of which breach or default singly or in the aggregate
may have a Material Adverse Effect.
(xii) No labor disturbance by the employees of the
Company or any of its subsidiaries exists or, to the Company's
knowledge, is imminent which may have a Material Adverse Effect.
(xiii) Since its inception, the Company has not
incurred any material liability arising under or as a result of the
application of the provisions of the Act.
(xiv) Each of the Company and its subsidiaries owns, or
is licensed or otherwise has sufficient right to use, the proprietary
knowledge, inventions, patents, trademarks, service marks, trade
names, logo marks and copyrights used in or necessary for the conduct
of its business (collectively, "Rights") as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). No claims have been asserted against the
Company or any of its subsidiaries by any person with respect to the
use of any such Rights or challenging or questioning the validity or
effectiveness of any such Rights. The use, in connection with the
business and operations of the Company and its subsidiaries, of the
Rights does not, to the Company's best knowledge, infringe on the
rights of any person.
(xv) No consent, approval, authorization or order of or
filing with any court, regulatory body, administrative agency or any
other governmental agency or body, domestic or foreign, is required
for the performance of this Agreement or the consummation of the
transactions contemplated hereby, except such as have been or may be
obtained under the Act or may be required under state securities or
Blue Sky laws in connection with the Underwriters' purchase and
distribution of the Shares.
(xvi) There are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company to file a registration statement
under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities under the Registration Statement (other than this Agreement
and those that have been disclosed in the
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Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), that have not been waived with respect to the
Registration Statement.
(xvii) Neither the Company nor any of its officers,
directors or affiliates (within the meaning of the Rules and
Regulations) has taken, directly or indirectly, any action designed to
stabilize or manipulate the price of any security of the Company, or
which has constituted or which might in the future reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company, to facilitate the sale or resale
of the Shares or otherwise.
(xviii) Each of the Company and its subsidiaries has
good and marketable title to, or valid and enforceable leasehold
interests in, all properties and assets owned or leased by it, free
and clear of all liens, encumbrances, security interests, claims,
restrictions, equities, claims and defects, except (A) such as are
described in the Registration Statement and Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus), or such as do not materially adversely affect the value
of any of such properties or assets taken as a whole and do not
materially interfere with the use made and proposed to be made of any
of such properties or assets, and (B) liens for taxes not yet due and
payable as to which appropriate reserves have been established and
reflected in the financial statements included in the Registration
Statement or incorporated therein by reference. The Company owns or
leases all such properties as are necessary to its operations as now
conducted as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and the properties and business of the
Company and its subsidiaries conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All the leases and subleases of the Company
and its subsidiaries, and under which the Company or any subsidiary
holds properties or assets as lessee or sublessee, constitute valid
leasehold interests of the Company or such subsidiary free and clear
of any lien, encumbrance, security interest, restriction, equity,
claim or defect, are in full force and effect, and neither the Company
nor any subsidiary is in default in respect of any of the material
terms or provisions of any such leases or subleases, and neither the
Company nor any subsidiary has notice of any claim which has been
asserted by anyone adverse to the Company's or any of its subsidiary's
rights as lessee or sublessee under any lease or sublease, or
affecting or questioning the Company's or any subsidiary's right to
the continued possession of the leased or subleased premises under any
such lease or sublease, which may have a Material Adverse Effect.
(xix) Neither the Company nor any subsidiary has
violated any applicable foreign exchange control, environmental,
safety, health or similar law applicable to the business of the
Company, nor any Bahamian, United Kingdom or United States federal or
state law relating to discrimination in the hiring, promotion, or pay
of employees, nor any applicable Bahamian, United Kingdom or United
States federal or state wages and hours law, nor any provisions of the
Employee Retirement Income Security Act of 1974, as amended,
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or the rules and regulations promulgated thereunder or any similar
statute or rules in the Bahamas or the United Kingdom, the
consequences of which violation may have a Material Adverse Effect.
(xx) Each of the Company and its subsidiaries holds all
franchises, licenses, permits, approvals, certificates and other
authorizations from Bahamian, United Kingdom and United States federal
and state and other governmental or regulatory authorities necessary
to the ownership, leasing and operation of its properties or required
for the present conduct of its business, and such franchises,
licenses, permits, approvals, certificates and other governmental
authorizations are in full force and effect and the Company and its
subsidiaries are in compliance therewith in all material respects
except where the failure so to obtain, maintain or comply with would
not have a Material Adverse Effect.
(xxi) 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 (subject to the respective lessor's consent, if
applicable) or assets to the Company or any other subsidiary of the
Company, except as described in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and
except for ▇▇▇▇▇▇▇ Spa Resorts Limited, whose distributions are
subject to approval by the Central Bank of The Bahamas.
(xxii) The Company has conducted its operations in a
manner that does not subject it to registration as an investment
company under the Investment Company Act of 1940, as amended, and will
not conduct its operations in a manner that will cause the Company to
become an investment company subject to registration under such Act.
(xxiii) The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (1) transactions are executed in
accordance with management's general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with United States generally
accepted accounting principles and to maintain asset accountability;
(3) access to assets is permitted only in accordance with management's
general or specific authorization; and (4) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxiv) Under the laws of the Commonwealth of The
Bahamas, the submission by the Company to the jurisdiction of any U.S.
federal or state court sitting in the State of New York and the
designation of the law of the State of New York to apply to this
Agreement will be binding upon the Company and, if properly brought to
the attention of the appropriate court or administrative body in
accordance with the laws of the Commonwealth of The Bahamas, would be
enforceable in any judicial or administrative proceeding in the
Commonwealth of The Bahamas.
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in compliance with (A) all Bahamian and United States federal, state
or local corporate, securities or other laws and (B) the requirements
of the Nasdaq Stock Market.
(b) The Selling Shareholder represents and warrants to, and
agrees with, the several Underwriters that:
(i) The Selling Shareholder has full legal right, power
and authority to enter into this Agreement. This Agreement has been
duly executed and delivered by the Selling Shareholder, and (assuming
this Agreement is a binding agreement of yours) constitutes the valid
and binding agreement of the Selling Shareholder, enforceable against
the Selling Shareholder in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general
application relating to or affecting the enforcement of creditor's
rights and the application of equitable principles relating to the
availability of remedies, and except as rights to indemnity or
contribution may be limited by federal or state securities law and the
public policy underlying such laws).
(ii) None of the execution, delivery or performance of
this Agreement and the consummation of the transactions herein
contemplated will conflict with or result in a breach of, or default
under, any indenture, mortgage, deed of trust, voting trust agreement,
shareholders' agreement, note agreement, or other agreement or
instrument to which the Selling Shareholder is a party or by which the
Selling Shareholder is or may be bound or to which any of his property
is or may be subject, or any statute, judgment, decree, order, rule or
regulation applicable to the Selling Shareholder of any government,
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having jurisdiction
over the Selling Shareholder or any of his activities or properties.
(iii) At the date hereof the Selling Shareholder has,
and at the time of delivery of the Shares to be sold by the Selling
Shareholder to the several Underwriters, the Selling Shareholder will
have, full right, power and authority to sell, assign, transfer and
deliver the Shares to be sold by the
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Selling Shareholder hereunder. At the date hereof the Selling
Shareholder is, and at the time of delivery of the Shares to be sold by
the Selling Shareholder, the Selling Shareholder will be, the lawful
owner of and has and will have, good and marketable title to such
Shares free and clear of any liens, encumbrances, security interests,
claims, community property rights, restrictions on transfer or other
defects in title. Assuming the several Underwriters acquire the Shares
in good faith and without notice of any adverse claim (within the
meaning of the Uniform Commercial Code), upon delivery of and payment
for the Shares to be sold by the Selling Shareholder hereunder, good
and marketable title to such Shares will pass to the Underwriters, free
and clear of any liens, encumbrances, security interests, claims,
community property rights, restrictions on transfer or other defects in
title. Except as described in the Registration Statement and the
Prospectus (or, if there is no Prospectus, the most recent Preliminary
Prospectus) or created hereby, there are no outstanding options,
warrants, rights or other agreements or arrangements requiring the
Selling Shareholder at any time to transfer any Common Shares to be
sold hereunder by the Selling Shareholder.
(iv) At the time when the Registration Statement
becomes or became effective, and at all times subsequent thereto up to
and including the Closing Date and the Option Closing Date, the
Registration Statement and any amendments thereto will not contain any
untrue statement of a material fact regarding the Selling Shareholder
or omit to state a material fact regarding the Selling Shareholder
required to be stated therein or necessary in order to make the
statements therein regarding the Selling Shareholder not misleading,
and the Prospectus (and any supplements thereto) (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) will not contain any untrue statement of a material fact
regarding the Selling Shareholder or omit to state a material fact
regarding the Selling Shareholder required to be stated therein or
necessary in order to make the statements therein regarding the
Selling Shareholder, in light of the circumstances under which they
were made, not misleading, and the Selling Shareholder is unaware of
any material misstatement in or omission from the Registration
Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or of any material
adverse information regarding the business or operations of the
Company or its subsidiaries which is not set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not then in
existence, in the most recent Preliminary Prospectus).
(v) The Selling Shareholder has not taken, directly or
indirectly, any action designed to stabilize or manipulate the price
of any security of the Company, or which has constituted or which
might in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of the Shares or otherwise.
(vi) The Selling Shareholder has no knowledge that any
of the Company's representations and warranties contained in this
Agreement are inaccurate. The sale by the Selling Shareholder of the
Shares pursuant hereto is not prompted by any adverse information
concerning the Company that is not set forth in the Registration
Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(vii) There is not pending or threatened against the
Selling Shareholder any action, suit or proceeding which (A) questions
the validity of this Agreement, or of any action taken or to be taken
by the Selling Shareholder pursuant to or in connection with this
Agreement or (B) is required to be disclosed in the Registration
Statement which is not so
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disclosed, and such actions, suits or proceedings as are summarized in
the Registration Statement, if any, are accurately summarized in all
material respects.
(viii) Under the laws of the jurisdiction where the
Selling Shareholder resides, the submission by the Selling Shareholder
to the jurisdiction of any U.S. federal or state court sitting in the
State of New York and the designation of the law of the State of New
York to apply to this Agreement will be binding upon the Selling
Shareholder and, if properly brought to the attention of the court or
administrative body in accordance with the laws where the Selling
Shareholder resides, would be enforceable in any jurisdiction or
administrative proceeding in such jurisdiction.
(ix) The Selling Shareholder does not have any
registration rights or other similar rights with respect to any
securities of the Company; and the Selling Shareholder does not have
any right of first refusal or other similar right to purchase any
securities of the Company upon the issuance or sale thereof by the
Company or upon the sale thereof by any other shareholder of the
Company.
(x) The Selling Shareholder has not since the initial
filing of the Registration Statement (A) sold, bid for, purchased,
attempted to induce any person to purchase, or paid anyone any
compensation for soliciting purchases of, Common Shares, or (B) paid
or agreed to pay to any person any compensation for soliciting another
to purchase any securities of the Company (except for the sale of the
Shares to be sold by the Selling Shareholder pursuant to this
Agreement and except as otherwise permitted by law).
(xi) The Selling Shareholder will review the Prospectus
and will comply with all agreements and satisfy all conditions on his
part to be complied with or satisfied pursuant to this Agreement at or
prior to the Closing Date, and will advise the Company and the
Underwriters prior to the Closing Date if any statement to be made on
behalf of the Selling Shareholder in the certificate contemplated by
Section 7(m) hereof would be inaccurate if made as of the Closing
Date.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of
the representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Selling Shareholder
agrees to sell to each Underwriter, and each Underwriter, severally and not
jointly, agrees to purchase from the Selling Shareholder at a purchase price
per Share of $____ the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule I hereto.
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P. at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other location as shall be
agreed upon by the Company and the Representatives. Such delivery and payment
shall be made at 9:30 a.m., New York City time, on March __, 1999 or at such
other time and date
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17
as shall be agreed upon by the Representatives and the Company. The time and
date of such delivery and payment are herein called the "Closing Date."
Delivery of the certificates for the Firm Shares 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 purchase
price for the Firm Shares by wire transfer of federal funds to the Selling
Shareholder. The certificates for the Firm Shares to be so delivered will be in
definitive, fully registered form, will bear no restrictive legends and will be
in such denominations and registered in such names as the Representatives shall
request, not less than two full business days prior to the Closing Date. The
certificates for the Firm Shares will be made available to the Representatives
at such office or such other place as the Representatives may designate for
inspection, checking and packaging not later than 9:30 a.m., New York time on
the business day prior to the Closing Date.
4. PUBLIC OFFERING OF THE SHARES. It is understood that the
Underwriters propose to make a public offering of the Shares at the price and
upon the other terms set forth in the Prospectus.
5. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDER.
(a) The Company covenants and agrees with each of the
Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of
this Agreement, and any amendments thereto, to become effective as
promptly as practicable. If required, the Company will file the
Prospectus and any amendment or supplement thereto with the Commission
in the manner and within the time period required by Rules 424(b) and
434 under the Act. During any time when a prospectus relating to the
Shares is required to be delivered under the Act, the Company (A) will
comply with all requirements imposed upon it by the Act and the Rules
and Regulations and the Exchange Act and the rules and regulations
thereunder to the extent necessary to permit the continuance of sales
of or dealings in the Shares in accordance with the provisions hereof
and of the Prospectus, as then amended or supplemented, and (B) will
not file with the Commission the Prospectus, Term Sheet or the
amendment referred to in the third sentence of Section 2(a)(i) hereof,
any amendment or supplement to the Prospectus, Term Sheet or any
amendment to the Registration Statement of which the Representatives
shall not previously have been advised and furnished with a copy a
reasonable period of time prior to the proposed filing and as to which
filing the Representatives shall not have given their consent. In the
event that the Registration Statement is effective at the time of
execution of this Agreement but the total number of Shares subject to
this Agreement exceeds the number of Shares covered by the
Registration Statement, the Company will promptly file with the
Commission on the date hereof a registration statement pursuant to
Rule 462(b) in accordance with the requirements of such Rule and will
make payment of the filing fee therefor in accordance with the
requirements of Rule 111(b) under the Act.
(ii) As soon as the Company is advised or obtains
knowledge thereof, the Company promptly will advise the
Representatives (A) when the Registration Statement, as amended, has
become effective; if the provisions of Rule 430A promulgated under the
Act
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will be relied upon, when the Prospectus has been filed in accordance
with said Rule 430A and when any post-effective amendment to the
Registration Statement becomes effective; (B) of any request made by
the Commission for amending the Registration Statement, for
supplementing any Preliminary Prospectus or the Prospectus or for
additional information, or (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto or the institution
or threat of any investigation or proceeding for that purpose, and
will use its best efforts to prevent the issuance of any such order
and, if issued, to obtain the lifting thereof as soon as possible.
(iii) The Company will (A) use its best efforts to
arrange for the qualification of the Shares for offer and sale under
the state securities or blue sky laws of such jurisdictions as the
Representatives may designate, (B) continue such qualifications in
effect for as long as may be necessary to complete the distribution of
the Shares, and (C) make such applications, file such documents and
furnish such information as may be required for the purposes set forth
in clauses (A) and (B); PROVIDED, HOWEVER, that the Company shall not
be required to qualify as a foreign corporation or file a general or
unlimited consent to service of process in any such jurisdiction.
(iv) The Company consents to the use of the Prospectus
(and any amendment or supplement thereto) by the Underwriters and all
dealers to whom the Shares may be sold, in connection with the
offering or sale of the Shares and for such period of time thereafter
as the Prospectus is required by law to be delivered in connection
therewith. If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result
of which the Prospectus, as then amended or supplemented, would
include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if it
becomes necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations or the Exchange Act
or the rules and regulations thereunder, the Company promptly will so
notify the Representatives and, subject to Section 5(a)(i) hereof,
will prepare and file with the Commission an amendment to the
Registration Statement or an amendment or supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, each such amendment or supplement to be reasonably
satisfactory to counsel to the Underwriters.
(v) As soon as practicable, but in any event not later
than 45 days after the end of the 12-month period beginning on the day
after the end of the fiscal quarter of the Company during which the
effective date of the Registration Statement occurs (90 days in the
event that the end of such fiscal quarter is the end of the Company's
fiscal year), the Company will make generally available to its
security holders, in the manner specified in Rule 158(b) of the Rules
and Regulations, and to the Representatives, an earnings statement
which will be in the detail required by, and will otherwise comply
with, the provisions of Section 11(a)
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of the Act and Rule 158(a) of the Rules and Regulations, which
statement need not be audited unless required by the Act or the Rules
and Regulations, covering a period of at least 12 consecutive months
after the effective date of the Registration Statement.
(vi) During a period of five years after the date
hereof, the Company will furnish to its shareholders, as soon as
practicable, annual reports (including financial statements audited by
independent public accountants) and unaudited quarterly reports of
earnings, and will deliver to the Representatives:
(A) as soon as practicable after filing with the
Commission, all such reports, forms or other documents as may
be required from time to time under the Act, the Rules and
Regulations, the Exchange Act and the rules and regulations
thereunder;
(B) as soon as practicable after they are
available, copies of all information (financial or other)
mailed to shareholders;
(C) as soon as practicable after they are
available, copies of all reports and financial statements
furnished to or filed with the Commission, the National
Association of Securities Dealers, Inc. ("NASD") or any
securities exchange;
(D) every press release which was released or
prepared by the Company; and
(E) any additional information of a public nature
concerning the Company or its business which the
Representatives may reasonably request.
During such five-year period, if the Company has active
subsidiaries, the foregoing financial statements will be on a
consolidated basis to the extent that the accounts of the
Company and its subsidiaries are consolidated, and will be
accompanied by similar financial statements for any
significant subsidiary which is not so consolidated.
(vii) The Company will maintain a transfer agent and,
if necessary under the jurisdiction of incorporation of the Company, a
registrar (which may be the same entity as the transfer agent) for its
Common Shares.
(viii) The Company will furnish, without charge, to the
Representatives or on the Representatives' order, at such place as the
Representatives may designate, copies of the Registration Statement
and any pre-effective or post-effective amendments thereto, and any
registration statement filed pursuant to Rule 462(b) (two of which
copies will be signed and will include all financial statements and
exhibits) and each Preliminary Prospectus and the
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Prospectus, and all amendments and supplements thereto, including any
Term Sheet, in each case as soon as available and in such quantities
as the Representatives may reasonably request.
(ix) The Company will not, directly or indirectly,
without the prior written consent of ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC, on
behalf of the Underwriters, issue, offer, sell, grant any option to
purchase or otherwise dispose (or announce any issuance, offer, sale,
grant of any option to purchase or other disposition) of any Common
Shares or any securities convertible into, or exchangeable or
exercisable for, Common Shares for a period of 90 days after the date
hereof, except pursuant to this Agreement, except for issuances
pursuant to the Company's 1996 Share Option and Incentive Plan and the
Company's Non-Employee Directors' Share Option Plan, the exercise of
share options outstanding on or granted subsequent to the date hereof,
pursuant to a share option or other employee benefit plan in existence
on the date hereof and except as described in the Prospectus.
(x) Neither the Company nor any of its officers or
directors, nor affiliates of any of them (within the meaning of the
Rules and Regulations), will take, directly or indirectly, any action
designed to, or which might in the future reasonably be expected to
cause or result in, stabilization or manipulation of the price of any
securities of the Company.
(x) The Company will timely file all such reports,
forms or other documents as may be required from time to time, under
the Act, the Rules and Regulations, the Exchange Act, and the rules
and regulations thereunder, and all such reports, forms and documents
filed will comply as to form and substance with the applicable
requirements under the Act, the Rules and Regulations, the Exchange
Act and the rules and regulations thereunder.
(b) The Selling Shareholder covenants and agrees with each of
the Underwriters that:
(i) The Selling Shareholder will not, directly or
indirectly, without the prior written consent of ING Baring ▇▇▇▇▇▇
▇▇▇▇ LLC, on behalf of the underwriters, offer, sell, grant any option
to purchase or otherwise dispose (or announce any offer, sale, grant
of any option to purchase or other disposition) of any Common Shares
or any securities convertible into, or exchangeable or exercisable
for, Common Shares for a period of 180 days after the date hereof,
except pursuant to this Agreement, and will not take, directly or
indirectly, any action designed to, or which might in the foreseeable
future reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities of the Company.
(ii) The Selling Shareholder consents to the use of the
Prospectus and any amendment or supplement thereto by the Underwriters
and all dealers to whom the Shares may be sold, both in connection
with the offering or sale of the Shares and for such period
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of time thereafter as the Prospectus, as amended or supplemented, is
required by law to be delivered in connection therewith.
(iii) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Code with respect
to the transactions herein contemplated, the Selling Shareholder
agrees to deliver to the Representatives prior to or on the Firm
Closing Date a properly completed and executed United States Treasury
Department Form W-8 or W-9 (or other applicable form or statement
specified by the Treasury Department regulations in lieu thereof).
6. EXPENSES.
(a) Regardless of whether the transactions contemplated in
this Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated, the Company and the Selling Shareholder will pay, and
hereby agree to indemnify each Underwriter against, all fees and expenses
incident to the performance of the obligations of the Company and the Selling
Shareholder under this Agreement, including, but not limited to, (i) fees and
expenses of accountants and counsel for the Company and the Selling
Shareholder, (ii) all costs and expenses incurred in connection with the
preparation, duplication, printing, filing, delivery and shipping of copies of
the Registration Statement and any pre-effective or post-effective amendments
thereto, any Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto (including postage costs related to the delivery by the
Underwriters of any Preliminary Prospectus or Prospectus, or any amendment or
supplement thereto), this Agreement, the Agreement Among Underwriters, any
Selected Dealer Agreement, Underwriters' Questionnaire, Underwriters' Power of
Attorney and all other documents in connection with the transactions
contemplated herein, including the cost of all copies thereof, (iii) fees and
expenses relating to qualification of the Shares under state securities or blue
sky laws, including the cost of preparing and mailing the preliminary and final
blue sky memoranda and filing fees and disbursements and fees of counsel and
other related expenses, if any, in connection therewith, (iv) filing fees of
the Commission and the NASD relating to the Shares, (v) any fees and expenses
in connection with the quotation of the Shares on the Nasdaq Stock Market, and
(vi) costs and expenses incident to the preparation, issuance and delivery to
the Underwriters of any certificates evidencing the Shares, including transfer
agent's and registrar's fees and any applicable transfer taxes incurred in
connection with the delivery to the Underwriters of the Shares to be sold by
the Selling Shareholder pursuant to this Agreement.
(b) If the purchase of the Shares as herein contemplated is
not consummated for any reason other than the Underwriters' default under this
Agreement or other than by reason of Section 11(a), the Company and the Selling
Shareholder shall be jointly and severally liable to reimburse the several
Underwriters for their out-of-pocket expenses (including reasonable counsel
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fees and disbursements) in connection with any investigation made by them, and
any preparation made by them in respect of marketing of the Shares or in
contemplation of the performance by them of their obligations hereunder.
(c) This Section 6 shall not affect or modify any separate
agreement relating to the allocation of payment of expenses between the Company
and the Selling Shareholder.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of each
Underwriter to purchase and pay for the Shares set forth opposite the name of
such Underwriter in Schedule I is subject to the continuing accuracy of the
representations and warranties in all material respects of the Company and the
Selling Shareholder herein as of the date hereof and as of the Closing Date as
if they had been made on and as of the Closing Date; the accuracy on and as of
the Closing Date of the statements of officers of the Company and the Selling
Shareholder made pursuant to the provisions hereof; the performance by the
Company and the Selling Shareholder on and as of the Closing Date of their
respective covenants and agreements hereunder; and the following additional
conditions:
(a) If the Company has elected to rely on Rule 430A under the
Act, the Registration Statement shall have been declared effective, and the
Prospectus (containing the information omitted pursuant to Rule 430A) shall
have been filed with the Commission not later than the Commission's close of
business on the second business day following the date hereof or such later
time and date to which the Representatives shall have consented; if the Company
does not elect to rely on Rule 430A, the Registration Statement shall have been
declared effective not later than 11:00 A.M., New York time, on the date hereof
or such later time and date to which the Representatives shall have consented;
if required, in the case of any changes in or amendments or supplements to the
Prospectus in addition to those contemplated above, the Company shall have
filed such Prospectus as amended or supplemented with the Commission in the
manner and within the time period required by Rules 424(b) and 434 under the
Act; no stop order suspending the effectiveness of the Registration Statement
or any amendment thereto shall have been issued, and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of the
Company or the Representatives, shall be contemplated by the Commission; and
the Company shall have complied with any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise).
(b) The Representatives shall not have advised the Company
that the Registration Statement, or any amendment thereto, contains an untrue
statement of fact which, in the Representatives' opinion, is material, or omits
to state a fact which, in the Representatives' opinion, is material and is
required to be stated therein or is necessary to make the statements therein
not misleading, or that the Prospectus, or any supplement thereto, contains an
untrue statement of fact which, in the Representatives' opinion, is material,
or omits to state a fact which, in the Representatives' opinion, is material
and is required to be stated therein or is necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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(c) On or prior to the Closing Date, the Representatives shall
have received from counsel to the Underwriters, such opinion or opinions with
respect to the issuance and sale of the Firm Shares, the Registration Statement
and the Prospectus and such other related matters as the Representatives
reasonably may request and such counsel shall have received such documents and
other information as they request to enable them to pass upon such matters. In
rendering such opinion, such counsel may rely as to all matters of Bahamian law
upon the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇ & Company.
(d) On the Closing Date the Underwriters shall have received
the opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to
the Company, addressed to the Underwriters (and stating that it may be relied
upon by counsel for the Underwriters), to the effect set forth below:
(i) To the best of our knowledge, ▇▇▇▇▇▇▇ Beauty
Products, Inc. ("▇▇▇▇▇▇▇ Beauty") and CT Maritime Services, L.C.
("Maritime Services," and together with ▇▇▇▇▇▇▇ Beauty, the "U.S.
Subsidiaries") are the only subsidiaries of the Company organized under
the laws of a United States jurisdiction. ▇▇▇▇▇▇▇ Beauty (A) is a duly
incorporated and validly existing corporation in good standing under
the laws of its jurisdiction of incorporation with full power and
authority (corporate and other) to own or lease its properties and to
conduct its business as described in the Prospectus, and (B) to the
best of our knowledge, is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction (x) in which
the conduct of its business requires such qualification (except for
those jurisdictions in which the failure so to qualify can be cured
without having a Material Adverse Effect) and (y) in which it owns or
leases property; and Maritime Services (A) is a duly formed and validly
existing limited liability company in good standing under the laws of
its jurisdiction of formation with full power and authority (company
and other) to own or lease its properties and to conduct its business
as described in the Prospectus, and (B) to the best of our knowledge,
is duly qualified to do business as a foreign company and is in good
standing in each jurisdiction (x) in which the conduct of its business
requires such qualification (except for those jurisdictions in which
the failure so to qualify can be cured without having a Material
Adverse Effect) and (y) in which it owns or leases property;
(ii) The issued and outstanding shares of capital
stock of ▇▇▇▇▇▇▇ Beauty have been duly authorized and validly issued,
are fully paid and nonassessable and are owned of record, and to our
knowledge beneficially, by the Company, directly or indirectly through
one or more subsidiaries of the Company, free and clear of any
perfected security interests or, to the best knowledge of such counsel,
any other security interests, liens, encumbrances, equities or claims;
and Maritime Services has been duly formed under the laws of the State
of Florida and its membership interests are owned beneficially by the
Company, directly or indirectly through one or more subsidiaries of the
Company, free and clear of any perfected security interests or, to the
best knowledge of such counsel, any other security interests, liens,
encumbrances, equities or claims;
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(iii) The Shares have been duly authorized for
quotation on the Nasdaq Stock Market;
(iv) The Registration Statement is effective under the
Act; any required filing of a registration statement pursuant to Rule
462(b) has been made in the manner and within the time period required
by Rule 462(b); any required filing of the Prospectus pursuant to Rule
424(b) and Rule 434 has been made in the manner and within the time
period required by Rule 424(b) and Rule 434; and, based on a telephone
conversation with the Commission on the date hereof, no stop order
suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings for that purpose
have been instituted or are pending or, to the best knowledge of such
counsel, are threatened or contemplated under the Act; the registration
statement originally filed with respect to the Shares and each
amendment thereto and the Prospectus and, if any, each amendment and
supplement thereto (except for the financial statements, schedules and
other financial data included therein, as to which such counsel need
not express any opinion), complied as to form in all material respects
with the requirements of the Act and the Rules and Regulations; the
descriptions contained and summarized in the Registration Statement and
the Prospectus of contracts and other documents, are accurate and
fairly represent in all material respects the information required to
be shown by the Act and the Rules and Regulations; to the best
knowledge of such counsel, there are no contracts or documents which
are required by the Act to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement or to be incorporated by reference therein which are not
described or filed or incorporated by reference as required by the Act
and the Rules and Regulations with respect thereto; to the best
knowledge of such counsel, there is not pending or threatened against
the Company any action, suit, proceeding or investigation before or by
any court, regulatory body, or administrative agency or any other
governmental agency or body, domestic or foreign, of a character
required to be disclosed in the Registration Statement or the
Prospectus which is not so disclosed therein; and the statements set
forth under the heading "Taxation - Certain United States Federal
Income Tax Considerations" ("Taxation") in the Prospectus and, to the
best knowledge of such counsel, under the heading "Legal Proceedings"
in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein,
provide an accurate summary of such legal matters, documents and
proceedings and present fairly the information required by the Act and
the Rules and Regulations to be shown in such documents (provided that,
with respect to "Taxation", such opinion is based solely on the opinion
attached to the Registration Statement as Exhibit 8.1);
(v) Assuming compliance with the laws of the
Commonwealth of the Bahamas, this Agreement has been duly authorized,
executed and delivered by the Company; none of the Company's execution
or delivery of this Agreement, its performance hereof or its
consummation of the transactions contemplated herein, conflicts or
will conflict with or results or will result in any breach or
violation of any of the terms or provisions of, or constitutes or will
constitute a default under, causes or will cause (or permits or will
permit) the maturation or acceleration of any liability or obligation
or termination of any right under, or result in the creation or
imposition of any lien, charge or encumbrance upon, any property
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or assets of the Company or any of its subsidiaries pursuant to the
terms of (A) the respective Articles of Incorporation, Articles of
Organization, by-laws or other governing instruments of the U.S.
Subsidiaries; (B) to the best of such counsel's knowledge, any
indenture, mortgage, deed of trust, voting trust agreement,
shareholders' agreement, note agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of its subsidiaries is or may be bound or to
which any of their respective properties may be subject; (C) any
United States statute, rule or regulation of any regulatory body or
administrative agency or other governmental agency or body, domestic
or foreign, having jurisdiction over the U.S. Subsidiaries or, to the
best of such counsel's knowledge, the Company and any of its other
subsidiaries, or any of their respective activities or properties; or
(D) to the best of such counsel's knowledge, (1) any judgment, decree
or order of any government, arbitrator, court, regulatory body or
administrative agency or other governmental agency or body, domestic
or foreign, having such jurisdiction, and (2) no consent, approval,
authorization or order of any court, regulatory body or administrative
agency or other governmental agency or body, domestic or foreign, has
been or is required for the Company's performance of this Agreement or
the consummation of the transactions contemplated hereby, except such
as have been obtained under the Act or may be required under state
securities or blue sky laws in connection with the purchase and
distribution by the Underwriters of the Shares;
(vi) To the best of such counsel's knowledge, (A) the
conduct of the businesses of the Company and its subsidiaries is not
in violation of any United States federal, state or local statute,
administrative regulation or other law, which violation is likely to
have a Material Adverse Effect; and (B) each of the Company and its
subsidiaries has obtained all licenses, permits, franchises,
certificates and other authorizations from United States state,
federal and other regulatory authorities as are necessary or required
for the ownership, leasing and operation of its properties and the
conduct of its business as presently conducted and as contemplated in
the Prospectus, except where the failure to obtain any such license,
permit, franchise, certificate or other authorization would not be
likely to have a Material Adverse Effect;
(vii) To the best of such counsel's knowledge, assuming
no relevant prohibitions exist under the respective Articles of
Association, Memorandum of Association or laws or judgments, orders or
decrees of judicial, administrative or governmental agencies of the
jurisdiction of organization of each of the Company's subsidiaries
that are not the U.S. Subsidiaries, 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 (subject to the respective lessor's
consent, if applicable) or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by
the Prospectus and except with respect to laws or regulations setting
forth solvency or other requirements for the paying of such dividends
or making of such other distributions;
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(viii) To the best of such counsel's knowledge, except
as described in the Prospectus, no claims have been asserted against
the Company or any of its subsidiaries by any person to the use of any
Rights or challenging or questioning the validity or effectiveness of
any Rights;
(ix) Each of the Company and its subsidiaries owns, or
is licensed or otherwise has sufficient rights to use, the "▇▇▇▇▇▇▇"
and "Elemis" trademarks (the "Trademarks") as used in, or necessary
for, the conduct of its business as described in the Prospectus in the
territories identified in the schedules to such opinion. Upon
appropriate transfer of the "La Therapie" trademark to the Company or
any of its subsidiaries and upon an application for the registration
of such transfer being made to the trademark registration authorities,
each of the Company and its subsidiaries will have sufficient rights
to use the "La Therapie" trademark in the conduct of its business as
described in the Prospectus in the territories identified in the
schedules to such opinion. To the best of such counsel's knowledge,
except as described in the Prospectus, no claims have been asserted
against the Company or any of its subsidiaries by any person to the
use of any such Trademarks or challenging or questioning the validity
or effectiveness of any such Trademarks. The use, in connection with
the business and operations of the Company and its subsidiaries, of
such Trademarks in the territories identified in the schedules to such
opinion does not, to the best of such counsel's knowledge, infringe on
the rights of any person;
(x) The Company is not an "investment company" under
the Investment Company Act of 1940, as amended;
(xi) With respect to judicial proceedings arising out of
or relating to this Agreement, each of the Company and the Selling
Shareholder has validly and irrevocably submitted to the jurisdiction
of any United States state or federal court of competent jurisdiction
located in the State of New York, has validly and irrevocably waived
any objection to the venue of a proceeding in any such court, and has
validly and irrevocably appointed CT Corporation as its or his
authorized agent for the purpose described in Section 16 of this
Agreement; and service of process in the manner set forth in Section 16
of this Agreement will be effective to confer valid personal
jurisdiction over the Company and the Selling Shareholder; and
(xii) The Share Splits were effected in compliance with
(A) all applicable United States federal, state and local securities
or other laws and (B) the requirements of the Nasdaq Stock Market.
In addition, such counsel shall state that in the course of
the preparation of the Registration Statement and the Prospectus, such counsel
has participated in conferences with officers and representatives of the
Company and with the Company's independent public accountants, at which
conferences such counsel made inquiries of such officers, representatives and
accountants and discussed the contents of the Registration Statement and the
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Prospectus and (without taking any further action to verify independently the
statements made in the Registration Statement and the Prospectus and, except as
stated in the foregoing opinion, without assuming responsibility for the
accuracy, completeness or fairness of such statements) nothing has come to such
counsel's attention that causes such counsel to believe that either the
Registration Statement as of the date it is declared effective and as of the
Closing Date or the Prospectus as of the date thereof and as of the Closing
Date contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (it being understood that such
counsel need not express any opinion with respect to the financial statements,
schedules and other financial data included in the Registration Statement or
the Prospectus).
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and of governmental and public officials
and, as to intellectual property (to the extent satisfactory in form and scope
to counsel for the Underwriters) such counsel may rely upon or substitute the
opinion of Wildbore & ▇▇▇▇▇▇▇.
References to the Registration Statement and the Prospectus
in this paragraph (d) shall include any amendment or supplement thereto at the
date of such opinion.
(e) On the Closing Date the Underwriters shall have received
the opinion, dated the Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇ & Company, Nassau, The
Bahamas, counsel for the Company, addressed to the Underwriters (and stating
that it may be relied upon by counsel for the Underwriters), to the effect set
forth below.
(i) Each of Cosmetics Limited, ▇▇▇▇▇▇▇ Transocean
Limited, ▇▇▇▇▇▇▇ Spa Resorts Limited, EBSC International Limited and
Spa Resources Limited, the subsidiaries of the Company organized under
the laws of The Bahamas (the "Bahamian Subsidiaries"), is a duly
incorporated and validly existing corporation in good standing under
the laws of its jurisdiction of incorporation with full power and
authority (corporate and other) to own or lease its properties and to
conduct its business as described in the Prospectus;
(ii) The issued shares of capital stock of each of the
Bahamian Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable and are owned beneficially by the
Company, directly or indirectly through one or more subsidiaries of
the Company, free and clear of any perfected security interests or, to
the best knowledge of such counsel, any other security interest,
liens, encumbrances, equities or claims; and, to the best knowledge of
such counsel, except for the shares of stock of each of the
subsidiaries of the Company owned by the Company or any such
subsidiaries, neither the Company nor any such subsidiary owns any
shares of stock or any other equity securities of any corporation or
has any equity interest in any firm, partnership, association or other
entity, except as described in or contemplated by the Prospectus;
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(iii) The Company has been duly incorporated and is
validly existing as a corporation and is validly existing and in good
standing under the International Business Companies Act, 1989, of The
Bahamas, is duly qualified to do business as a foreign corporation and
has full corporate power and authority to own its properties and
conduct its business as described in the Registration Statement;
(iv) The Company has authorized capital stock as set
forth in the Prospectus; the securities of the Company conform in all
material respects to the description thereof contained in the
Prospectus; the outstanding Common Shares have been duly authorized and
validly issued by the Company, are fully paid and nonassessable, and
are free of any preemptive or other rights to subscribe for any of the
Shares; the certificate(s) evidencing the Common Shares to be delivered
by the Selling Shareholder hereunder are in due and proper form under
Bahamian law; neither the Memorandum of Association nor Articles of
Association of the Company, nor, to such counsel's knowledge, any
agreement to which the Company is a party, contains any restriction
upon the voting or transfer of any of the shares of capital stock of
the Company (including the Shares) except such restrictions as may be
imposed by federal and state securities laws or as may be expressly
described in the Prospectus; except for the shares of stock of each of
the subsidiaries of the Company owned by the Company or any such
subsidiaries, neither the Company nor any such subsidiary owns any
shares of stock or any other equity securities of any corporation or
has any equity interest in any firm, partnership, association or other
entity, except as described in or contemplated by the Prospectus; and
there are no shares of preferred stock of any series issued and
outstanding;
(v) The Company has the corporate power and authority
to enter into and perform its obligations under this Agreement; this
Agreement has been duly and validly authorized by all necessary
corporate action by the Company, has been duly and validly executed
and delivered by and on behalf of the Company, and is a valid and
binding Agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that (i) the validity
and binding effect and enforcement of this Agreement may be limited by
any applicable bankruptcy, reorganization, moratorium or similar laws
of general application, (ii) availability of equitable remedies may be
limited by principles of equity, whether considered in a proceeding at
law or in equity and (iii) the terms hereof may be limited by
applicable United States securities law and policies embodied therein;
and no approval, authorization, order, consent, registration, filing,
qualification, license or permit of or with any Bahamian court,
regulatory, administrative or other Bahamian governmental body is
required for the execution and delivery of this Agreement by the
Company or the consummation of the transactions contemplated by this
Agreement;
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(vi) None of the execution, delivery or performance of
this Agreement by the Company and the consummation of the transactions
contemplated herein, conflicts or will conflict with or results or
will result in any breach or violation of any of the terms or
provisions of, or constitutes or will constitute a default under,
causes or will cause (or permits or will permit) the maturation or
acceleration of any liability or obligation or termination of any
right under, or result in the creation or imposition of any lien,
charge or encumbrance upon, any property or assets of the Company or
any of its subsidiaries pursuant to the terms of (A) the respective
Memorandum of Association, Articles of Association, Articles of
Organization, certificate of incorporation or by-laws or other
governing instruments of the Company or any of the Bahamian
Subsidiaries; (B) to the best of such counsel's knowledge, any
indenture, mortgage, deed of trust, voting trust agreement,
shareholders' agreement, note agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of its subsidiaries is or may be bound or to
which any of their respective properties may be subject; (C) any
Bahamian statute, rule or regulation of any regulatory body or
administrative agency or other governmental agency or body, domestic
or foreign, having jurisdiction over the Company or the Bahamian
Subsidiaries or, to the best of such counsel's knowledge, any of its
other subsidiaries, or any of their respective activities or
properties; or (D) to the best of such counsel's knowledge, (1) any
judgment, decree or order of any government, arbitrator, court,
regulatory body or administrative agency or other governmental agency
or body, domestic or foreign, having such jurisdiction, and (2) no
consent, approval, authorization or order of any court, regulatory
body or administrative agency or other governmental agency or body,
domestic or foreign, has been or is required for the Company's
performance of this Agreement or the consummation of the transactions
contemplated hereby (other than pursuant to United States federal
securities, state securities or blue sky laws or regulations, as to
which such counsel need not express any opinion);
(vii) The choice of New York law to govern this
Agreement constitutes a valid choice of law insofar as the law of The
Bahamas is concerned. The submission by the Company to the
non-exclusive jurisdiction of any federal or state court in the
Borough of Manhattan, New York, New York is a valid submission insofar
as the law of The Bahamas is concerned; and a judgment granted by a
foreign court against the Company may be enforced in The Bahamas
without a retrial on the merits of the matter;
(viii) The Company has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus, and the conduct of such
business does not violate the provisions of its Memorandum of
Association or Articles of Association or any applicable law,
regulation, order or decree in The Bahamas;
(ix) No Bahamian Subsidiary 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
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to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Prospectus;
(x) Neither the Memorandum of Association or Articles
of Association of the Company nor any applicable Bahamian law,
regulation or decree imposes any preemptive or similar rights on the
issuance and sale of Common Shares by the Company;
(xi) The certificates evidencing the Common Shares are
in due and proper form and comply with all applicable statutory
requirements of The Bahamas;
(xii) To the best of such counsel's knowledge, there
are no legal or governmental proceedings pending in The Bahamas to
which the Company is a party or by which any of its property is
subject;
(xiii) The statements in the Prospectus under "Risk
Factors -- Possible Changes in the Taxation of ▇▇▇▇▇▇▇ Leisure," "Risk
Factors -- We are Not a United States Company and, as a Result, There
are Special Risks" and "Taxation -- Certain Bahamian and Other Tax
Considerations," to the extent that they constitute a description of
the laws and regulations of The Bahamas, or its respective agencies,
authorities or other governmental bodies, or documents, or proceedings
or conclusions of Bahamian law, are correct in all material respects;
(xiv) No filing with, or consent, approval,
authorization, order, registration, qualification or decree of, any
court or governmental authority or body in The Bahamas is necessary or
required to be obtained by the Company in connection with its
obligations under this Agreement or the performance of the
transactions contemplated hereby;
(xv) Under the laws of The Bahamas, no holder of any of
the Shares or Common Shares of the Company outstanding after
completion of the offering contemplated by this Agreement is or will
be subject to any liability in The Bahamas in respect of any liability
of the Company by virtue of holding any such Shares or Common Shares.
There are no restrictions under Bahamian law on (i) transfer of any of
the Shares or Common Shares or (ii) the rights of any holders of the
Shares or Common Shares of the Company to vote their shares in
accordance with the Memorandum of Association or Articles of
Association of the Company; and
(xvi) The Share Splits were effected in compliance with
the provisions of the Company's Memorandum of Association and Articles
of Association and in compliance with all applicable Bahamian federal,
state or local corporate, securities and other laws.
In addition, such counsel shall state that in the course of
the preparation of the Registration Statement and the Prospectus, such counsel
has participated in conferences with officers and representatives of the
Company and with the Company's independent public accountants, at
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which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed the contents of the Registration Statement and
the Prospectus and (without taking any further action to verify independently
the statements made in the Registration Statement and the Prospectus and,
except as stated in the foregoing opinion, without assuming responsibility for
the accuracy, completeness or fairness of such statements) nothing has come to
such counsel's attention that causes such counsel to believe that either the
Registration Statement as of the date it is declared effective and as of the
Closing Date or the Prospectus as of the date thereof and as of the Closing
Date contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (it being understood that such
counsel need not express any opinion with respect to the financial statements,
schedules and other financial data included in the Registration Statement or
the Prospectus).
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
References to the Registration Statement and the Prospectus
in this paragraph (e) shall include any amendment or supplement thereto at the
date of such opinion.
(f) On the Closing Date the Underwriters shall have received
the opinion, dated the Closing Date, of SPR ▇▇▇▇▇, Midgen & Co., United Kingdom
counsel for the Company, addressed to the Underwriters (and stating that it may
be relied upon by counsel for the Underwriters), to the effect set forth below.
(i) Each of Elemis Limited, ▇▇▇▇▇▇▇ Training Limited,
▇.▇. Contracts Limited, ▇▇▇▇ ▇▇▇▇▇▇▇ Limited and ▇▇▇▇▇▇▇ Group Limited
(the "U.K. Subsidiaries") has been duly incorporated, is validly
existing as a company under the laws of England and Wales, has full
power and authority (corporate or other) to own or lease its
properties (if any) and to conduct its business as described in the
Prospectus, and is in good standing in each jurisdiction:
(A) in which the conduct of its business or its
ownership or leasing of property requires such qualification
(except for those jurisdictions in which the failure so to
qualify can be cured without having a Material Adverse
Effect) and
(B) in which it owns or leases property;
(ii) The issued share capital of each of the U.K.
Subsidiaries has been duly authorized and validly issued, is fully
paid and not subject to calls for additional payments of any kind, and
is beneficially owned by the Company, directly or indirectly through
one or more subsidiaries of the Company, free and clear of any
perfected security interests or, to the best knowledge of such
counsel, any other security interests, liens, encumbrances, equities
or
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(i) On the Closing Date, the Underwriters shall have received
a certificate, dated the Closing Date, of the principal executive officer, the
principal operating officer and the principal financial or accounting officer
of the Company to the effect that each of such persons has carefully examined
the Registration Statement and the Prospectus and any amendments or supplements
thereto and this Agreement, and that:
(i) The representations and warranties of the Company
in this Agreement are true and correct in all material respects, as if
made on and as of the Closing Date, and the Company has complied with
all agreements and covenants and satisfied all conditions contained in
this Agreement on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or are pending or, to the best knowledge
of each of such persons, are contemplated or threatened under the Act
and any and all filings required by Rule 424, Rule 430A, Rule 434 and
Rule 462(b) have been timely made;
(iii) The Registration Statement and Prospectus and, if
any, each amendment and each supplement thereto, contain all
statements and information required to be included therein, and
neither the Registration Statement nor any amendment thereto includes
any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and neither the Prospectus (or any supplement
thereto) or any Preliminary Prospectus includes or included any untrue
statement of a material fact or omits or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
up to and including the Closing Date, neither the Company nor any of
its subsidiaries has incurred, other than in the ordinary course of
its business, any material liabilities or obligations, direct or
contingent; neither the Company nor any of the subsidiaries has
purchased any of its outstanding capital stock or paid or declared any
dividends or other distributions on its capital stock; neither the
Company nor any of the subsidiaries has entered into any transactions
not in the ordinary course of business; and there has not been any
change in the capital stock or consolidated long-term debt or any
increase in the consolidated short-term borrowings (other than any
increase in short-term borrowings in the ordinary course of business)
of the Company or any change to the business properties, assets, net
worth, condition (financial or other), results of operations or
prospects of the Company and its subsidiaries taken as a whole which
would have a Material Adverse Effect; neither the Company nor any of
its subsidiaries has sustained any material loss or damage to its
property or assets, whether or not insured; there is no litigation
which is pending or threatened against the Company or any of its
subsidiaries which is required under the Act or
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the Rules and Regulations to be set forth in an amended or
supplemented Prospectus which has not been set forth; and there has
not occurred any event required to be set forth in an amended or
supplemented Prospectus which has not been set forth therein, and
there has been no document required to be filed under the Exchange Act
and the rules and regulations thereunder that upon such filing would
be deemed incorporated by reference into the Prospectus that has not
been filed; and
(v) Neither the Company nor any of the Bahamian
Subsidiaries transact any business, except for written or oral
agreements with parties outside of The Bahamas, or own any real or
other property outside of The Bahamas, other than the capital shares
or membership interests of the Company's subsidiaries, and except as
related to the Company's maritime operations as described in the
Prospectus.
References to the Registration Statement and the Prospectus
in this paragraph (i) are to such documents as amended and supplemented at the
date of the certificate.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus up to and including the
Closing Date there has not been (i) any change or decrease specified in the
letter or letters referred to in paragraph (h) of this Section 7 or (ii) any
change, or any development involving a prospective change, in the business or
properties of the Company or its subsidiaries which change or decrease in the
case of clause (i) or change or development in the case of clause (ii) makes it
impractical or inadvisable in the Representatives' judgment to proceed with the
public offering or the delivery of the Shares as contemplated by the
Prospectus.
(k) No order suspending the sale of the Shares in any jurisdiction
designated by you pursuant to Section 5(a)(iii)(A) hereof has been issued on or
prior to the Closing Date and no proceedings for that purpose have been
instituted or, to your knowledge or that of the Company, have been or are
contemplated.
(l) On the Closing Date, the Underwriters shall have received the
opinion, dated the Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇ & Company in its capacity as
counsel for the Selling Shareholder, addressed to the Underwriters (and stating
that it may be relied upon by counsel for the Underwriters), to the effect set
forth below:
(i) The Selling Shareholder has full legal right, power
and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Shares in the manner provided herein; this
Agreement has been duly executed and delivered by the Selling
Shareholder; and this Agreement, assuming due authorization, execution
and delivery by each other party hereto and further assuming it is a
valid and binding agreement of each of the Underwriters, is a valid
and binding agreement of the Selling Shareholder enforceable against
the Selling Shareholder in accordance with its terms (except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws now or hereafter in effect
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relating to or affecting creditors' rights generally and by general
principles of equity relating to the availability of remedies and
except as rights to indemnity and contribution may be limited by
federal or state securities laws and the public policy underlying such
laws);
(ii) None of the execution, delivery or performance of
this Agreement by the Selling Shareholder and the consummation by the
Selling Shareholder of the transactions herein contemplated, conflict
with or result in a breach of, or default under any indenture,
mortgage, deed of trust, voting trust agreement, shareholders'
agreement, note agreement or other agreement or other instrument known
to such counsel to which the Selling Shareholder is a party or by
which the Selling Shareholder is bound or to which any of the property
of the Selling Shareholder is subject, and nothing has come to such
counsel's attention which causes such counsel to believe that such
actions will result in any violation of any law, rule, administrative
regulation or court decree applicable to the Selling Shareholder
(other than state securities or blue sky laws or regulations, as to
which such counsel need not express any opinion);
(iii) Upon the delivery of the Shares to be sold
hereunder by the Selling Shareholder and payment therefor in accordance
with the terms of this Agreement and assuming that each of the
Underwriters that has severally purchased such Shares acquires such
Shares without notice of any adverse claim (within the meaning of the
Uniform Commercial Code), such Underwriter will have acquired all of
the rights of the Selling Shareholder to the Shares sold by the Selling
Shareholder hereunder, and in addition will have acquired title to such
Shares free and clear of any adverse claim; and
(iv) The provisions as to the submission to
jurisdiction, waiver or any objection to venue and appointment of
agents for service of process, in each case by the Selling Shareholder
as set forth in this Agreement, are valid and binding under the law of
the jurisdiction where the Selling Shareholder resides.
References to the Registration Statement and the
Prospectus in this paragraph (l) shall include any amendment or
supplement thereto at the date of such opinion.
(m) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date, from the Selling Shareholder to the effect
that the Selling Shareholder has carefully examined the Registration Statement
and the Prospectus and this Agreement, and that:
(A) The representations and warranties of the Selling
Shareholder in this Agreement are true and correct, as if made at and
as of the Closing Date, and the Selling Shareholder has complied with
all the agreements and satisfied all the conditions to be performed or
satisfied by the Selling Shareholder at or prior to the Closing Date;
and
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(B) The Registration Statement and Prospectus and, if any,
each amendment and each supplement thereto, contain all statements
required to be included therein regarding the Selling Shareholder, and
none of the Registration Statement nor any amendment thereto includes
any untrue statement of a material fact regarding the Selling
Shareholder or omits to state any material fact regarding the Selling
Shareholder required to be stated therein or necessary to make the
statements therein regarding the Selling Shareholder not misleading,
and neither the Prospectus (and any supplements thereto) or any
Preliminary Prospectus includes or included any untrue statement of a
material fact regarding the Selling Shareholder or omits or omitted to
state a material fact regarding the Selling Shareholder required to be
stated therein or necessary in order to make the statements therein
regarding the Selling Shareholder, in light of the circumstances under
which they were made, not misleading.
(n) The Company and the Selling Shareholder shall have furnished the
Underwriters with such further opinions, letters, certificates or documents as
you or counsel for the Underwriters may reasonably request. All opinions,
certificates, letters and documents to be furnished by the Company and the
Selling Shareholder will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Underwriters and to
counsel for the Underwriters. The Company and the Selling Shareholder shall
furnish the Underwriters with conformed copies of such opinions, certificates,
letters and documents in such quantities as you reasonably request. The
certificates delivered under this Section 7 shall constitute representations,
warranties and agreements of the Company and the Selling Shareholder, as the
case may be, as to all matters set forth therein as fully and effectively as if
such matters had been set forth in Section 2 of this Agreement.
(o) The Shares have been duly authorized for quotation on the Nasdaq
Stock Market.
(p) The Representatives shall have received instructions of the
Selling Shareholder with respect to payment of the net proceeds from the sale
of Common Shares by the Selling Shareholder.
8. INDEMNIFICATION.
(a) The Company and the Selling Shareholder, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several (and actions in respect thereof), to which such
Underwriter or such controlling person may become subject, under the Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement made by the
Company or the Selling Shareholder in Section 2 of this Agreement or
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therein a material fact required to be stated therein or necessary to make the
statements not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
in writing by that Underwriter through the Representatives to the Company
expressly for use therein; and will reimburse, as incurred, all legal or other
expenses reasonably incurred by the Company and/or, as the case may be, the
Selling Shareholder, director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
The Company and the Selling Shareholder acknowledge that the statements with
respect to the public offering of the Shares set forth in the third paragraph
under the heading "Underwriting" and the first sentence of the third paragraph
from the end of such section, to the extent that it relates to the
Underwriters, and the last paragraph on the cover page of the Prospectus have
been furnished by the Underwriters to the Company expressly for use therein and
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus. The indemnity agreement contained
in this subsection (b) shall be in addition to any liability which the
Underwriters may otherwise have.
(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 one or more indemnifying
parties under this Section 8, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) of this Section 8 or to the
extent that the indemnifying party was not adversely affected by such omission.
In case any such action is brought against an indemnified party and it notifies
an indemnifying party or parties of the commencement thereof, the indemnifying
party or parties against which a claim is to be made will be entitled to
participate therein and, to the extent that it or they may wish, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
has 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, the indemnified party or parties
shall have the right to select separate counsel to assume such legal defenses
and otherwise to participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses (other than the reasonable costs of investigation)
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party has employed such counsel in
connection with the assumption of such different or additional legal defenses
in accordance with the proviso to the immediately preceding sentence, (ii) the
indemnifying party has not employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, or (iii) the indemnifying party has
authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party.
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(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) (i) in such proportion as is appropriate to
reflect the relative benefits received by each of the contributing parties, on
the one hand, and the party to be indemnified, on the other hand, from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of each of the contributing parties, on the one hand, and
the party to be indemnified, on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. In any
case where the Company and/or the Selling Shareholder are contributing parties
and the Underwriters are the indemnified party, the relative benefits received
by the Company and/or the Selling Shareholder, on the one hand, and the
Underwriters, on the other, shall be deemed to be in the same proportion as the
proceeds from the offering of the Shares (before deducting expenses) bear to
the total underwriting discounts received by the Underwriters hereunder, 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 the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Shareholder or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this paragraph (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), the Underwriters shall
not be required to contribute any amount in excess of the underwriting discount
applicable to the Shares purchased by the Underwriters hereunder. The
Underwriters' obligations to contribute pursuant to this paragraph (d) are
several in proportion to their respective underwriting obligations, and not
joint. 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
paragraph (d), (i) each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter and (ii) each director of
the Company, each officer of the Company who has signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and the Selling
Shareholder shall have the same rights to contribution as the Company, subject
in each case to this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect to which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation (x) it or they may have
hereunder or otherwise than under this paragraph (d) or (y) to the extent that
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such party or parties were not adversely affected by such omission. The
contribution agreement set forth above shall be in addition to any liabilities
which any indemnifying party may otherwise have.
9. RIGHT TO INCREASE OFFERING. At any time during a period of 30 days
from the date of the Prospectus, the Underwriters, by no less than two business
days prior notice to the Selling Shareholder and the Company, may designate a
closing (which may be concurrent with, and part of the closing on the Closing
Date with respect to the Firm Shares or may be a second closing held on a date
subsequent to the Closing Date, in either case such date shall be referred to
herein as the "Option Closing Date") at which the Underwriters may purchase all
or less than all of the Additional Shares in accordance with the provisions of
this Section 9 at the purchase price per share to be paid for the Firm Shares.
In no event shall the Option Closing Date be later than 10 business days after
written notice of the election to purchase Additional Shares is given.
The Selling Shareholder agrees to sell to the several Underwriters
on the Option Closing Date the number of Additional Shares specified in such
notice and the Underwriters agree severally, and not jointly, to purchase such
Additional Shares on the Option Closing Date. Such Additional Shares shall be
purchased for the account of each Underwriter in the same proportion as the
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I bears to the total number of Firm Shares (subject to adjustment by
you to eliminate fractions) and may be purchased by the Underwriters only for
the purpose of covering over-allotments made in connection with the sale of the
Firm Shares.
No Additional Shares shall be sold or delivered unless the Firm
Shares previously have been, or simultaneously are, sold and delivered. The
right to purchase the Additional Shares or any portion thereof may be
surrendered and terminated at any time upon notice by you to the Selling
Shareholder.
Except to the extent modified by this Section 9, all provisions of
this Agreement relating to the transactions contemplated to occur on the
Closing Date for the sale of the Firm Shares shall apply, MUTATIS MUTANDIS, to
the Option Closing Date for the sale of the Additional Shares.
10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers, the Selling Shareholder and
the Underwriters, respectively, 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 the Underwriters, and will survive delivery of, and payment
for, the Shares. Any successors to the Underwriters and successors to other
indemnified parties shall be entitled to the indemnity, contribution and
reimbursement agreements contained in this Agreement.
11. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at 11:00 A.M., New
York time on the first business day following the date hereof, or at
such earlier time after the Registration Statement
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becomes effective as the Representatives, in their sole discretion, shall
release the Shares for the sale to the public unless prior to such time the
Representatives shall have received written notice from the Company that they
elect that this Agreement shall not become effective, or the Representatives
shall have given written notice to the Company that the Representatives on
behalf of the Underwriters elect that this Agreement shall not become
effective; PROVIDED, HOWEVER, that the provisions of this Section 11 and of
Section 6 and Section 8 hereof shall at all times be effective. For purposes of
this Section 11(a), the Shares to be purchased hereunder shall be deemed to
have been so released upon the earlier of notification by the Representatives
to securities dealers releasing such Shares for offering or the release by the
Representatives for publication of the first newspaper advertisement which is
subsequently published relating to the Shares.
(b) This Agreement (except for the provisions of Sections 6
and 8 hereof) may be terminated by the Representatives by notice to the Company
in the event that the Company or the Selling Shareholder has failed to comply
in any material respect with any of the provisions of this Agreement required
on their respective parts to be performed at or prior to the Closing Date or
the Option Closing Date, or if any of the representations or warranties of the
Company or the Selling Shareholder are not accurate in any material respect or
if the covenants, agreements or conditions of, or applicable to the Company or
the Selling Shareholder herein contained have not been complied with in any
material respect or materially satisfied within the time specified on the
Closing Date or the Option Closing Date, respectively, or if prior to the
Closing Date or the Option Closing Date:
(i) the Company or any of its subsidiaries shall have
sustained a loss by strike, fire, flood, accident or other calamity of
such a character as to interfere materially with the conduct of the
business and operations of the Company and its subsidiaries taken as a
whole regardless of whether or not such loss was insured;
(ii) trading in the Common Shares shall have been
suspended by the Commission, the Nasdaq Stock Market or trading in
securities generally on the New York or American Stock Exchange or the
Nasdaq Stock Market shall have been suspended or a material limitation
on such trading shall have been imposed or minimum or maximum prices
shall have been established on any such exchange or market system;
(iii) a banking moratorium shall have been declared by
Bahamian, New York or United States authorities;
(iv) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an
outbreak or escalation of any other insurrection or armed conflict
involving the United States; or
(v) there shall have been a material adverse change in
(A) general economic, political or financial conditions or (B) the
present or prospective business or condition (financial or other) of
the Company and its subsidiaries taken as a whole that, in each case,
in the Representatives' judgment makes it impracticable or inadvisable
to make or
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consummate the public offering, sale or delivery of the Shares on the
terms and in the manner contemplated in the Prospectus and the
Registration Statement.
(c) Termination of this Agreement under this Section 11 or
Section 12 after the Firm Shares have been purchased by the Underwriters
hereunder shall be applicable only to the Additional Shares. Termination of
this Agreement shall be without liability of any party to any other party other
than as provided in Sections 6 and 8 hereof.
12. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 or 11 hereof)
to purchase and pay for (a) in the case of the Closing Date, the number of Firm
Shares agreed to be purchased by such Underwriter or Underwriters upon tender
to you of such Firm Shares in accordance with the terms hereof or (b) in the
case of the Option Closing Date, the number of Additional Shares agreed to be
purchased by such Underwriter or Underwriters upon tender to you of such
Additional Shares in accordance with the terms hereof, and the number of such
Shares shall not exceed 10% of the Firm Shares or Additional Shares required to
be purchased on the Closing Date or the Option Closing Date, as the case may
be, then, each of the non-defaulting Underwriters shall purchase and pay for
(in addition to the number of such Shares which it has severally agreed to
purchase hereunder) that proportion of the number of Shares which the
defaulting Underwriter or Underwriters shall have so failed or refused to
purchase on such Closing Date or Option Closing Date, as the case may be, which
the number of Shares agreed to be purchased by such non-defaulting Underwriter
bears to the aggregate number of Shares so agreed to be purchased by all such
non-defaulting Underwriters on such Closing Date or Option Closing Date, as the
case may be. In such case, you shall have the right to postpone the Closing
Date or the Option Closing Date, as the case may be, to a date not exceeding
seven full business days after the date originally fixed as such Closing Date
or the Option Closing Date, as the case may be, pursuant to the terms hereof in
order that any necessary changes in the Registration Statement, the Prospectus
or any other documents or arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise
than for a reason sufficient to justify the termination of this Agreement under
the provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the
case of the Closing Date, the number of Firm Shares agreed to be purchased by
such Underwriter or Underwriters upon tender to you of such Firm Shares in
accordance with the terms hereof or (b) in the case of the Option Closing Date,
the number of Additional Shares agreed to be purchased by such Underwriter or
Underwriters upon tender to you of such Additional Shares in accordance with
the terms hereof, and the number of such Shares shall exceed 10% of the Firm
Shares or Additional Shares required to be purchased by all the Underwriters on
the Closing Date or the Option Closing Date, as the case may be, then (unless
within 48 hours after such default arrangements to your satisfaction shall have
been made for the purchase of the defaulted Shares by an Underwriter or
Underwriters) and subject to the provisions of Section 11(b) hereof, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or on the part of the Company or the Selling Shareholder except as
otherwise provided in Sections 6 and 8 hereof. As used in this Agreement, the
term "Underwriter" includes any person substituted
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for an Underwriter under this paragraph. Nothing in this Section 12, and no
action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
13. NOTICES. All communications hereunder shall be in writing and if
sent to the Representatives shall be mailed or delivered or sent by facsimile
and confirmed by letter c/o ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department (facsimile number
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇, Esq. (facsimile number (212)
752-5958), or, if sent to the Company, shall be mailed or delivered or sent by
facsimile and confirmed by letter to the Company at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇-▇▇▇▇, ▇▇▇▇▇▇, The Bahamas, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (facsimile
number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.A.
(facsimile number (▇▇▇) ▇▇▇-▇▇▇▇), or if sent to the Selling Shareholder, shall
be mailed or delivered or sent by facsimile and confirmed by letter to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, Saffrey Square, P.O. Box
N-9306, Nassau, The Bahamas (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.A. (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇).
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Company, the Selling Shareholder and each Underwriter and the
Company's, the Selling Shareholder's and each Underwriter's respective
successors and legal representatives, and nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such persons and for the benefit of no other person,
except that the representations, warranties, indemnities and contribution
agreements of the Company and the Selling Shareholder contained in this
Agreement shall also be for the benefit of any person or persons, if any, who
control any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and except that the Underwriters' indemnity and
contribution agreements shall also be for the benefit of the directors of the
Company, the officers of the Company who have signed the Registration
Statement, the Selling Shareholder and any person or persons, if any, who
control the Company or the Selling Shareholder within the meaning of Section 15
of the Act or Section 20 of the Exchange Act. No purchaser of Shares from the
Underwriters will be deemed a successor because of such purchase.
15. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to the choice of law or conflict of law principles thereof. Each
party hereto consents to the jurisdiction of each court in which any action is
commenced seeking indemnity or contribution pursuant to Section 8 above and
agrees to accept, either directly or through an agent, service of process of
each such court.
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16. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. In addition to the
provisions of Section 15, all judicial proceedings arising out of or relating
to this Agreement may be brought in any state or federal court of competent
jurisdiction in the State of New York, and by execution and delivery of this
Agreement, each of the Company and the Selling Shareholder accepts for itself
and himself and in connection with its or his properties, generally,
unconditionally and irrevocably, the nonexclusive jurisdiction of the aforesaid
courts and irrevocably waives any objection to the venue of a proceeding in any
such court or any defense of forum non conveniens and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this Agreement. Each
of the Company and the Selling Shareholder designates and appoints CT
Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and such other
persons located in the United States as may hereafter be selected by the
Company or the Selling Shareholder, as the case may be, agreeing in writing to
so serve, as its or his agent to receive on its or his behalf service of all
process in any such proceedings in any such court, such service being hereby
acknowledged by the Company and the Selling Shareholder to be effective and
binding service in every respect. A copy of any such process so served shall be
mailed by registered mail to the Company or the Selling Shareholder, as the
case may be, as provided in Section 13 hereof; PROVIDED, HOWEVER, that, unless
otherwise provided by applicable law, any failure to mail such copy shall not
affect the validity of service of such process. If any agent appointed by the
Company or the Selling Shareholder refuses to accept service, the Company and
the Selling Shareholder hereby agree that service of process sufficient for
personal jurisdiction in any action against the Company or the Selling
Shareholder, as the case may be, in the State of New York may be made by
registered or certified mail, return receipt requested, to the Company or the
Selling Shareholder, as the case may be, as provided in Section 13 hereof, and
each of the Company and the Selling Shareholder hereby acknowledges that such
service shall be effective and binding in every respect. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of any Underwriter to bring proceedings against the Company or
the Selling Shareholder in the courts of any other jurisdiction.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
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If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement
between us.
Very truly yours,
▇▇▇▇▇▇▇ LEISURE LIMITED
By: _______________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and
Chief Operating Officer
SELLING SHAREHOLDER
By: _______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Accepted as of the date first above written:
ING BARING ▇▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
By: ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC
Acting on its own behalf and as one of
the several Underwriters referred to in
the foregoing Agreement
By: _______________________________
Name:
Title:
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SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated March __, 1999
Number of Firm
Shares to be
Purchased from
the Selling
Shareholder
---------------
NAME AND ADDRESS
----------------
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC..................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.............................
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C..............................
---------
Total....................................................... 1,500,000
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