EXHIBIT 1.1
LAZARD LTD
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
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UNDERWRITING AGREEMENT
November 30, 2006
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
As representative of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Lazard Ltd, a company incorporated under the laws of Bermuda (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 7,000,000 shares and, at the election of the
Underwriters, up to 1,950,000 additional shares of Class A Common Stock, par
value $0.01 per share ("Stock"), of the Company and the shareholders of the
Company named in Schedule II hereto (the "Selling Shareholders") propose,
subject to the terms and conditions stated herein, to sell to the Underwriters
an aggregate of 6,000,000 shares of Stock. The aggregate of 13,000,000 shares to
be sold by the Company and the Selling Shareholders are herein called the "Firm
Shares" and the aggregate of 1,950,000 additional shares to be sold by the
Company are herein called the "Optional Shares". The Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 3
hereof are herein collectively called the "Shares".
For the avoidance of doubt, it shall be understood and agreed by the
parties hereto that any and all references in this Agreement to "subsidiaries"
of the Company shall be deemed to include Lazard Group LLC, a Delaware limited
liability company, and each other significant subsidiary of the Company as such
term is defined in Rule 1-02(w) of Regulation S-X as promulgated by the
Securities and Exchange Commission (the "Commission").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) An "automatic shelf registration statement" as defined under Rule
405 under the Securities Act of 1933, as amended (the "Act"), on Form S-3
(File No. 333-138855) in respect of the Shares has been filed with the
Securities and Exchange Commission (the "Commission") not earlier than
three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became
effective on filing; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission, and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act has been received by the Company (the base
prospectus filed as part of such registration statement, in the form in
which it has most recently been filed with the Commission on or prior to
the date of this Agreement, is hereinafter called the "Basic Prospectus";
any preliminary prospectus (including any preliminary prospectus
supplement) relating to the Shares filed with the Commission pursuant to
Rule 424(b) under the Act is hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus supplement
relating to the Shares that is filed with the Commission and deemed by
virtue of Rule 430B to be part of such registration statement, each as
amended at the time such part of the registration statement became
effective, are hereinafter collectively called the "Registration
Statement"; the Basic Prospectus, as amended and supplemented immediately
prior to the Applicable Time (as defined in Section 1(c) hereof), is
hereinafter called the "Pricing Prospectus"; the form of the final
prospectus relating to the Shares filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 7(a) hereof is
hereinafter called the "Prospectus"; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating
to the Shares filed with the Commission pursuant to Rule 424(b) under the
Act and any documents filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated therein, in each case after
the date of the Basic Prospectus, such Preliminary Prospectus, or the
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any "issuer
free writing prospectus" as defined in Rule 433 under the Act relating to
the Shares is hereinafter called an "Issuer Free Writing Prospectus");
(b) No stop order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. or any other Underwriter by or through ▇▇▇▇▇▇▇, Sachs & Co.
expressly for use therein or by a Selling Shareholder expressly for use in
the preparation of answers therein to Item 7 of Form S-3 under the Act;
(c) For the purposes of this Agreement, the "Applicable Time" is 4:40
pm (Eastern time) on the date of this Agreement. The Pricing Prospectus as
supplemented
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by each Issuer Free Writing Prospectus listed on Schedule III(a)(i) hereto
and the pricing information provided orally by the Underwriters listed on
Schedule III(d) hereto (collectively, the "Pricing Disclosure Package") as
of the Applicable Time, 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; and each Issuer Free Writing Prospectus listed on
Schedule III(a)(ii) hereto does not conflict with the information contained
in the Registration Statement, the Pricing Prospectus or the Prospectus and
each such Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable Time, 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;
PROVIDED, HOWEVER, that this representation and warranty shall not apply to
statements or omissions made in an Issuer Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for
use therein;
(d) The documents incorporated by reference in the Pricing Prospectus
and the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and no
such documents were filed with the Commission since the Commission's close
of business on the business day immediately prior to each of the date of
this Agreement and the execution of this Agreement, except as set forth on
Schedule III(c) hereto;
(e) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each part of
the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or any other Underwriter by
or through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein or by a Selling
Shareholder expressly for use in the preparation of the answers therein to
Item 7 of Form S-3 under the Act;
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(f) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Pricing Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Pricing Prospectus, and other than as set forth in the Prospectus, there
has not been (i) any change in the capital stock of the Company or any of
its subsidiaries, (ii) any change in the amount of long-term debt of the
Company or any of its subsidiaries, or (iii) any material adverse change,
or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' or members' equity or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect"),
otherwise than as (1) set forth or contemplated in the Pricing Prospectus,
including the pro forma financial and capitalization information contained
therein, (2) a result of the separation and recapitalization transactions
that occurred at the time of the Company's initial public offering or (3) a
result of any issuance of securities pursuant to the Company's 2005 Equity
Incentive Plan;
(g) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Pricing
Prospectus or such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases with such exceptions
as do not materially interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(h) (i) The Company (a) has been duly incorporated and is existing as
a corporation in good standing under the laws of Bermuda (meaning solely
that it has not failed to make any filing with any Bermuda governmental
authority, or to pay any Bermuda government fee or tax, which would make it
liable to be struck off the Register of Companies and thereby cease to
exist under the laws of Bermuda), with corporate power and authority to own
its properties and conduct its business as described in the Pricing
Prospectus, (b) has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure to
be so qualified or in good standing as a foreign corporation would not
reasonably be expected to result in a Material Adverse Effect, and (c) is
not subject to any material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; and (ii) each
subsidiary of the Company has been duly incorporated or organized and is
validly existing in good standing under the laws of its jurisdiction of
incorporation or formation, as applicable, except where the failure to be
so qualified or in good standing would not reasonably be expected to result
in a Material Adverse Effect;
(i) The Company has an authorized capitalization as set forth in the
Pricing Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Shares contained
in the Pricing Prospectus and the Prospectus; and all of the issued shares
of capital stock or other equity interests of each subsidiary of the
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Company have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors' qualifying shares and except
as otherwise set forth in the Pricing Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances or
claims, except (i) such liens, encumbrances or claims as described in the
Pricing Prospectus or (ii) such liens, encumbrances or claims that,
individually or in the aggregate, do not materially affect the value of
such shares of capital stock or otherwise would not reasonably be expected
to result in a Material Adverse Effect;
(j) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when
issued and delivered to the Underwriters against payment therefor as
provided herein, will be duly and validly issued, fully paid and
non-assessable and free and clear of all liens, encumbrances, or claims and
will conform to the description of the Stock contained in the Pricing
Prospectus;
(k) The Company has been designated as a non-resident company of
Bermuda for the purposes of the Exchange Control ▇▇▇ ▇▇▇▇ and, as such, is
free to acquire, hold and sell foreign currency (including the payment of
dividends) without restriction;
(l) This Agreement has been duly authorized, executed and delivered by
the Company;
(m) The issuance and sale of the Shares to be sold by the Company
hereunder and the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein contemplated
will not conflict with or result in a breach or violation of (i) any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (ii) the
provisions of the Memorandum of Association or Bye-laws of the Company or
(iii) any statute or any order, rule or regulation of, any court or
governmental agency or body or any stock exchange authorities (a
"Governmental Agency") having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties (hereinafter referred to
as "Governmental Authorizations"), except, in the case of clauses (i) and
(iii), for such violations that would not, individually or in the
aggregate, materially affect the value of the Shares, the ability of the
Company to consummate the transactions contemplated hereby or reasonably be
expected to have a Material Adverse Effect; and no consent, approval,
authorization, order, registration, or qualification of or with any such
Governmental Agency is required for the issuance and sale of the Shares or
the consummation by the Company of the transactions contemplated by this
Agreement except such as have been obtained under the Act and such
consents, approvals authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by or for the account of the
Underwriters, such consents, approvals, authorizations, orders,
registrations or qualifications the failure of which to obtain would not,
individually or in the aggregate, materially affect the value of the
Shares, the ability of the Company to consummate the transactions
contemplated hereby or reasonably be expected to have a Material Adverse
Effect;
(n) Neither the Company nor any of its subsidiaries is in violation of
any of its constituent documents, or, except for such defaults which would
not, individually or in
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the aggregate, reasonably be expected to have a Material Adverse Effect, is
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(o) There is no income or other tax of Bermuda (imposed by withholding
or otherwise) on any dividend or distribution to be made by the Company to
the holders of the Shares;
(p) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which would 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;
(q) The statements set forth in the Pricing Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Shares, under the caption
"Material U.S. Federal Income Tax and Bermuda Tax Considerations", and
under the caption "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate and
complete summaries of such provisions in all material respects;
(r) Other than as set forth in the Pricing Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(s) Neither the Company, nor any of its subsidiaries is or, after
giving effect to the offering and sale of the Shares, will be an
"investment company", as such term is defined in the Investment Company Act
of 1940, as amended (the "Investment Company Act");
(t) The Company and each of its subsidiaries have all licenses,
franchises, permits, authorizations, approvals and orders and other
concessions of and from all Governmental Agencies that are necessary to own
or lease their other properties and conduct their businesses as described
in the Pricing Prospectus, except to the extent that the failure to have or
obtain such licenses, franchises, permits, authorizations, approvals and
orders would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;
(u) Neither the Company nor Lazard Group LLC is a Passive Foreign
Investment Company ("PFIC") within the meaning of Section 1297 of the
United States Internal Revenue Code of 1986, as amended, and is not likely
to become a PFIC;
(v) To its knowledge, neither the Company nor any of its subsidiaries
or controlled affiliates does business with the government of, or with any
person located in any country in a manner that violates in any material
respect any of the economic sanctions programs or similar sanctions-related
measures of the United States as administered by the United States Treasury
Department's Office of Foreign Assets Control; and the net proceeds from
this offering and any concurrent offering will not be used to fund any
operations in, finance any investments in or make any payments to any
country, or to make any payments to any person, in a manner that violates
in any
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material respect any of the economic sanctions of the United States
administered by the United States Treasury Department's Office of Foreign
Assets Control;
(w) To its knowledge, neither the Company nor any of its subsidiaries
or controlled affiliates does business with the government of Cuba or with
any person located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(x) (A) (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time
the Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) under the Act) made any offer relating to
the Shares in reliance on the exemption of Rule 163 under the Act, the
Company was a "well-known seasoned issuer" as defined in Rule 405 under the
Act; and (B) at the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Shares,
the Company was not an "ineligible issuer" as defined in Rule 405 under the
Act;
(y) Deloitte & Touche LLP, who have certified certain consolidated
financial statements of the Company, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder;
(z) The Company's internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) are effective and
the Company is not aware of any material weaknesses in its internal control
over financial reporting;
(aa) The Company's internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) are sufficient to
enable the Company's principal executive officer and principal financial
officer to satisfy, in a timely manner, their respective certification
obligations under Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002; and
(bb) The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that comply with
the requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company's
principal executive officer and principal financial officer by others
within those entities; and such disclosure controls and procedures are
effective.
2. Each of the Selling Shareholders severally represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(a) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Shareholder of this Agreement
and the Power of Attorney and the Custody Agreement hereinafter referred
to, and for the sale and delivery of the Shares to be sold by such Selling
Shareholder hereunder, will be obtained by the Time of Delivery (as defined
in Section 6 hereof); and such Selling Shareholder has full right, power
and authority to enter into this Agreement, the Power-of-Attorney and the
Custody Agreement and to sell, assign, transfer and deliver the Shares by
the Time of Delivery to be sold by such Selling Shareholder hereunder;
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(b) The sale of the Shares to be sold by such Selling Shareholder
hereunder and the compliance by such Selling Shareholder with all of the
provisions of this Agreement, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which such Selling Shareholder is a party or by
which such Selling Shareholder is bound or to which any of the property or
assets of such Selling Shareholder is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
By-laws of such Selling Shareholder if such Selling Shareholder is a
corporation, the Partnership Agreement of such Selling Shareholder if such
Selling Shareholder is a partnership or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over such Selling Shareholder or the property of such Selling Shareholder;
(c) Such Selling Shareholder immediately prior to the each Time of
Delivery will have good and valid title to the Shares to be sold by such
Selling Shareholder hereunder, free and clear of all liens, encumbrances or
claims; and, upon delivery of such Shares and payment therefor pursuant
hereto, good and valid title to such Shares, free and clear of all liens,
encumbrances or claims, will pass to the several Underwriters;
(d) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus (the
initial "Lock-Up Period"), not to offer, sell contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the Company
that are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing on,
or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement), without your
prior written consent;
(e) Such Selling Shareholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(f) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or any amendment or supplement thereto are
made in reliance upon and in conformity with written information furnished
to the Company by such Selling Shareholder expressly for use therein, such
Preliminary Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the Registration
Statement and the Prospectus, when they become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
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(g) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or at
the First Time of Delivery (as hereinafter defined) a properly completed
and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof);
(h) The Selling Shareholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and
each of them, as such Selling Shareholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this Agreement
and the Custody Agreement (as defined below) on behalf of such Selling
Shareholder, to determine the purchase price to be paid by the Underwriters
to the Selling Shareholders as provided in Section 3 hereof, to authorize
the delivery of the Shares to be sold by such Selling Shareholder hereunder
and otherwise to act on behalf of such Selling Shareholder in connection
with the transactions contemplated by this Agreement and the Custody
Agreement, and such Selling Shareholder has duly executed and delivered
(either individually or through its Attorney-in-Fact acting pursuant to the
Power of Attorney) a Custody Agreement, in the form heretofore furnished to
you (the "Custody Agreement"), to The Bank of New York, as custodian (the
"Custodian"); and
(i) The Shares represented by the certificates held in custody for
such Selling Shareholder under the Custody Agreement will be, upon issuance
at the Time of Delivery, subject to the interests of the Underwriters
hereunder; the arrangements made by such Selling Shareholder for such
custody, and the appointment by such Selling Shareholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable;
the obligations of the Selling Shareholders hereunder shall not be
terminated by operation of law, whether by the death or incapacity of any
individual Selling Shareholder or, in the case of an estate or trust, by
the death or incapacity of any executor or trustee or the termination of
such estate or trust, or in the case of a partnership or corporation, by
the dissolution of such partnership or corporation, or by the occurrence of
any other event; if any individual Selling Shareholder or any such executor
or trustee should die or become incapacitated, or if any such estate or
trust should be terminated, or if any such partnership or corporation
should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of the Selling Shareholders in
accordance with the terms and conditions of this Agreement and of the
Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant to
the Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of
whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event.
3. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Shareholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Shareholders,
at a purchase price per Share of $43.71675 number of Firm Shares (to be adjusted
by you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Shares to be sold by the Company and each of the Selling
Shareholders as set forth opposite their respective names in Schedule II hereto
by a fraction,
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the numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased by all of the Underwriters from the Company and the Selling
Shareholders hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
the purchase price per Share set forth in clause (a) of this Section 3, that
portion of the number of Optional Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company, as and to the extent indicated in Schedule II hereto, hereby
grants to the Underwriters the right to purchase at their election up to
1,950,000 Optional Shares, at the purchase price per Share set forth in the
paragraph above, for the sole purpose of covering sales of shares in excess of
the number of Firm Shares, provided that the purchase price per Optional Share
shall be reduced by an amount per share equal to any dividends or distributions
declared by the Company and payable on the Firm Shares but not payable on the
Optional Shares. Any such election to purchase Optional Shares shall be made in
proportion to the maximum number of Optional Shares to be sold by the Company as
set forth in Schedule II hereto. Any such election to purchase Optional Shares
may be exercised only by written notice from you to the Attorneys-in-Fact, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 6 hereof)
or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
4. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
5. [Reserved]
6. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight
hours' notice to the Company and the Selling Shareholders prior to a Time
of Delivery (as defined below) (the "Notification Time"), shall be
delivered by or on behalf of the Company and the Selling Shareholders to
▇▇▇▇▇▇▇, Sachs & Co., through the facilities of The Depository Trust
Company ("DTC"), for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the
Company and the Custodian to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at least forty-eight
hours in advance. Delivery of the Shares by the Company and the Selling
Shareholders will be made to an account or accounts specified by ▇▇▇▇▇▇▇,
Sachs & Co., in such respective portions as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may
designate, upon written notice given to the Company and the Selling
Shareholders prior to the Notification Time. It is understood and agreed by
the parties hereto that no delivery or transfer of Shares to be purchased
and sold hereunder at a Time of Delivery shall be effective until and
unless payment therefor has been made pursuant hereto and each of DTC, the
10
Company and the Selling Shareholders shall have furnished or caused to be
furnished to ▇▇▇▇▇▇▇, Sachs & Co., on behalf of the Underwriters at such
Time of Delivery certificates and other evidence reasonably satisfactory to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the execution in favor of the Underwriters of the
book-entry transfer of Shares, to the custodian for DTC.
The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on December 6, 2006 or
such other time and date as ▇▇▇▇▇▇▇, Sachs & Co., the Company and the
Selling Shareholders may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York City time, on the date specified by
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. in the written notice given by ▇▇▇▇▇▇▇, Sachs & Co. of
the Underwriters' election to purchase such Optional Shares, or such other
time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., the Company and the Selling
Shareholders may agree upon in writing. Such time and date for delivery of
the Firm Shares is herein called the "First Time of Delivery", such time
and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such
time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 10 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 10(o) hereof, will be delivered at the
offices of Cravath, Swaine & ▇▇▇▇▇ LLP, Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (the "Closing Location"), and the Shares will be
delivered as specified in Section (a) above, all at such Time of Delivery.
A meeting will be held at the Closing Location at 2:00 p.m., New York City
time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to
the preceding sentence will be available for review by the parties hereto.
For the purposes of this Section 6, "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City are generally authorized or obligated
by law or executive order to close.
7. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by ▇▇▇▇▇▇▇, Sachs &
Co., as representative of the Underwriters, and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission's close
of business on the second business day following the execution and delivery
of this Agreement; to make no further amendment or any supplement to the
Registration Statement, the Basic Prospectus or the Prospectus prior to the
Time of Delivery which shall be disapproved by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as
representative of the Underwriters, promptly after reasonable notice
thereof; to advise ▇▇▇▇▇▇▇, Sachs & Co., as representative of the
Underwriters, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as representative of the
Underwriters, copies thereof; to advise ▇▇▇▇▇▇▇, Sachs & Co., as
representative of the Underwriters, to file promptly all other material
required to be filed by the Company with the Commission pursuant to Rule
433(d) under the Act; to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the Act) is required in connection with the offering or
sale of the Shares; to advise you,
11
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or other prospectus in respect of the
Shares, of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act, of the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or other prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the
withdrawal of such order; and in the event of any such issuance of a notice
of objection, promptly to take such steps including, without limitation,
amending the Registration Statement or filing a new registration statement,
at its own expense, as may be necessary to permit offers and sales of the
Shares by the Underwriters (references herein to the Registration Statement
shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of
prospectus in a form approved by you and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by
Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus which shall be disapproved by you promptly after
reasonable notice thereof;
(c) Promptly from time to time to take such action as ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., as representative of the Underwriters, may reasonably request to
qualify the Shares for offering and sale under the securities laws of such
jurisdictions as ▇▇▇▇▇▇▇, Sachs & Co., as representative of the
Underwriters, may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of process
in any jurisdiction or subject itself to taxation for doing business in any
jurisdiction;
(d) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with written and electronic copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required at any time
prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Shares and if at
such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify you and upon
your request to file such document and prepare and furnish without charge
to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance,
12
and in case any Underwriter is required to deliver a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) in connection
with sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(e) To make generally available to the Company's shareholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus (the
"Initial Lock-Up Period"), not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any securities of the
Company or its subsidiaries that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Shares or any
such substantially similar securities, without your prior written consent,
subject to the following exceptions:
(i) the issuance by the Company of securities pursuant to
employee stock option plans or other employee or director plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement;
and
(ii) the issuance by the Company of shares of its Stock in
connection with the merger or joint venture with, or acquisition of,
another company, or the acquisition of the assets or property of
another company, and the related entry into a merger or acquisition
agreement, so long as (A) the aggregate number of shares of its Stock
issued in such transactions, taken together, does not exceed
10,600,000 and (B) the recipients of any such shares of Stock in
excess of 5,300,000 (i.e., representing 50% of the aggregate number of
shares of Stock issuable pursuant to this clause (ii)) agree to be
bound by the lock-up restrictions that apply to the Company as set
forth herein;
(g) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (in English) (including a balance
sheet and statements of income, shareholders' or members' equity and cash
flows of the Company and its consolidated subsidiaries certified by
independent public accountants and prepared in conformity with generally
accepted accounting principles in the U.S. ("U.S. GAAP")) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective
date of the Registration Statement), to make available to its shareholders
consolidated summary financial information of the Company and its
subsidiaries for such quarter in each case as required by the rules and
regulations of the Act, provided that the Company may satisfy the
requirements of this subsection by filing such information and all other
information on Form 10-Q or Form 10-K as may be required by Rule 463 under
the Act;
(h) During a period of two years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to the Company's
shareholders, and to deliver to you as soon as
13
practicable after they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any securities
exchange on which any class of securities of the Company is listed;
(i) To pay the required Commission filing fees relating to the Shares
within the time required by Rule 456(b)(1) under the Act without regard to
the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Act;
(j) To use the net proceeds received from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(k) Not to (and to cause the Company's subsidiaries not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which would reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
or facilitate the sale or resale or the Shares;
(l) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange;
(m) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(n) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); PROVIDED, HOWEVER, that the License
shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred.
8. (a) The Company represents and agrees that, without the prior
consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., it has not made and will not make any
offer relating to the Shares that would constitute a "free writing
prospectus" as defined in Rule 405 under the Act; each Underwriter
represents and agrees that, without the prior consent of the Company and
▇▇▇▇▇▇▇, Sachs & Co., it has not made and will not make any offer relating
to the Shares that would constitute a free writing prospectus; any such
free writing prospectus the use of which has been consented to by the
Company and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. is listed on Schedule III(a) hereto;
(b) The Company has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and
c) The Company agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Disclosure Package
or the Prospectus or would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances then prevailing, not
misleading, the Company will give prompt notice thereof to ▇▇▇▇▇▇▇, Sachs &
Co. and, if requested by
14
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will
correct such conflict, statement or omission; PROVIDED, HOWEVER, that with
respect to information provided by a Selling Shareholder expressly for use
in the preparation of the answers therein to Item 7 of Form S-3, this
provision shall only apply to the extent the Company has knowledge of such
an event; PROVIDED FURTHER, HOWEVER, that this provision shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for
use therein.
9. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, the Blue
Sky Memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section 7(c)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky surveys;
(iv) all fees and expenses in connection with listing the Shares on the New York
Stock Exchange; (v) the filing fees incident to, and the fees and disbursements
of counsel for the Underwriters in connection with, securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. Each Selling Shareholder
will pay or cause to be paid all costs and expenses incident to the performance
of such Selling Shareholder's obligations hereunder which are not otherwise
specifically provided for in this Section, including (x) any fees and expenses
of counsel for such Selling Shareholder, (y) such Selling Shareholder's pro rata
share of the fees and expenses of the Attorneys-in-Fact and the Custodian (if
not paid for by the Company), and (z) all expenses and taxes incident to the
sale and delivery of the Shares to be sold by such Selling Shareholder to the
Underwriters hereunder. In connection with clause (z) of the preceding sentence,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. agrees to pay New York State stock transfer tax, and the
Selling Shareholder agrees to reimburse ▇▇▇▇▇▇▇, Sachs & Co. for associated
carrying costs if such tax payment is not rebated on the day of payment and for
any portion of such tax payment not rebated. It is understood, however, that the
Company shall bear, and the Selling Shareholders shall not be required to pay or
to reimburse the Company for, the cost of any other matters not directly
relating to the sale and purchase of the Shares pursuant to this Agreement, and
that, except as provided in this Section, and Sections 12 and 15 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes (other than any imposed by Bermuda or any
political subdivision or taxing authority thereof or therein) on resale of any
of the Shares by them, and any advertising expenses connected with any offers
they may make.
10. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject to the condition that all
representations and warranties and other statements of the Company and of the
Selling Shareholders herein are, at and as of such Time of Delivery, true and
correct, the condition that the Company and the
15
Selling Shareholders shall have performed all of its and their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 7(a) hereof; all material required to be filed by
the Company pursuant to Rule 433(d) under the Act shall have been filed
with the Commission within the applicable time period prescribed for such
filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission and
no notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act shall have been received; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, shall
have furnished to you such written statement, opinion or opinions, dated
such Time of Delivery, with respect to the matters covered in the paragraph
following paragraph (vii) of subsection (d) below as well as such other
related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) [Reserved];
(d) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company and its
subsidiaries, shall have furnished to you their written opinion (in the
form set forth in Annex II(a) hereto), dated such Time of Delivery, to the
effect that:
(i) Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 18 of this
Agreement, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a "New York Court") in
any action arising out of or relating to this Agreement or the
transactions contemplated hereby, has validly and irrevocably waived
any objection to the venue of a proceeding in any such court, and has
validly and irrevocably appointed the Authorized Agent (as defined
herein) as its authorized agent for the purpose described in Section
18 hereof; and service of process effected on such agent in the manner
set forth in Section 18 hereof will be effective to confer valid
personal jurisdiction over the Company;
(ii) To such counsel's knowledge and other than as set forth in
the Prospectus, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate, have a Material
Adverse Effect;
(iii) The issuance and sale of the Shares being delivered at such
Time of Delivery to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any agreement or
instrument filed as an exhibit to the Registration Statement nor will
such action
16
result in any violation of any statute under the laws of the State of
New York or the federal securities laws of the United States of
America or any order, rule or regulation known to such counsel of any
United States Federal or New York Governmental Agency having
jurisdiction over the Company or any of its subsidiaries or any of
their properties;
(iv) No Governmental Authorization of the United States or the
State of New York is required for the issuance and sale of the Shares
or the consummation by the Company of the transactions contemplated by
this Agreement, except the registration under the Act of the Shares,
such consents, approvals, authorizations, registrations or
qualifications that have been obtained or as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and such consents,
approvals, authorizations, registrations or qualifications the failure
of which to obtain would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(v) The statements set forth in the Prospectus under the caption
"Material U.S. Federal Income Tax and Bermuda Tax Considerations",
insofar as they purport to constitute a summary of U.S. laws and the
documents referred to therein, and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete summaries of
such provisions in all material respects;
(vi) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related schedules and notes or other financial or statistical data
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder; and
(vii) Counsel does not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents
of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed or described as required.
Although counsel has not verified, is not passing upon, and does
not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement,
the Pricing Disclosure Package or the Prospectus, except for those
referred to in the opinion in subsection (v) of this Section 10(d), no
facts have come to such counsel's attention that lead them to believe,
and such counsel has no other reason to believe (i) that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and notes or other
financial or statistical data included therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary
17
to make the statements therein not misleading, (ii) that the Pricing
Disclosure Package, as of the Applicable Time (other than the
financial statements and related schedules and notes or other
financial or statistical data included therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading or
(iii) that, as of its date, and as of such Time of Delivery, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules and notes or other financial or
statistical data included therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
In rendering their 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 certificates or other written
statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company.
With respect to the matters to be covered in paragraphs (vi),
(vii) and the paragraph following paragraph (vii) above, such counsel
may state that their opinion is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and discussions with representatives
of the Company and its auditors (including discussions in which the
Underwriters and their counsel participated) in connection with such
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto but is without independent check or
verification, except as with respect to matters set forth in paragraph
(v) above, except as specified.
In rendering their opinion, such counsel may state that they
express no opinion other than as to the law of the State of New York
and the federal securities laws of the United States.
(e) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel for the Company and its
subsidiaries, shall have furnished to you their written opinion (in the
form as set forth in Annex II(b) hereto), dated such Time of Delivery, to
the effect that:
(i) The Company (i) has been duly incorporated and is existing as
a corporation in good standing under the laws of Bermuda (meaning
solely that it has not failed to make any filing with any Bermuda
governmental authority, or to pay any Bermuda government fee or tax,
which would make it liable to be struck off the Register of Companies
and thereby cease to exist under the laws of Bermuda) and (ii) has the
necessary corporate power and authority to conduct its business as
described in the Prospectus;
(ii) The statements contained in the Prospectus under the caption
"Description of Our Common Stock", to the extent that they constitute
statements of Bermuda law, are accurate in all material respects;
(iii) All issued shares of capital stock of the Company
(including, when issued and paid for, the Shares to be sold by the
Company in accordance with the Underwriting Agreement), will be
validly issued, fully paid and non-assessable (which term when used
herein means that no further sums are required to be paid by the
holders thereof in connection with the issue thereof) and will not be
subject to any statutory pre-emptive or similar rights;
18
(iv) No order, consent, approval, licence, authorisation or
validation of, filing with or exemption by any government or public
body or authority of Bermuda or any sub-division thereof is required
to authorise or is required in connection with the execution,
delivery, performance and enforcement of this Agreement, including the
issuance and sale of the Shares, or the ownership or lease of the
Company's properties and conduct of its businesses as described in the
Prospectus, except such as have been duly obtained or filed in
accordance with Bermuda law;
(v) The Company has taken all corporate action required to
authorise its execution and filing of the Registration Statement and
its execution, delivery and performance of this Agreement. This
Agreement has been duly executed and delivered by or on behalf of the
Company, and constitutes the valid and binding obligations of the
Company, enforceable against the Company in accordance with the terms
thereof;
(vi) The execution and delivery of this Agreement, including the
issuance and sale of Shares, and the performance by the Company of its
obligations thereunder will not result in any violation of the
provisions of the Memorandum of Association or Bye-laws of the Company
or any applicable law, regulation, order or decree in Bermuda;
(vii) The statements contained in the Prospectus forming a part
of the Registration Statement under the captions "Prospectus
Summary--Material U.S. Federal Income Tax and Bermuda Tax
Considerations," "Material U.S. Federal Income Tax and Bermuda Tax
Considerations--Taxation of Lazard and its Subsidiaries--Bermuda" and
"Material U.S. Federal Income Tax and Bermuda Tax
Considerations--Taxation of Shareholders--Bermuda", to the extent that
they constitute statements of Bermuda law, are accurate in all
material respects;
(viii) The Company has received an assurance from the Ministry of
Finance in Bermuda that in the event of there being enacted in Bermuda
any legislation imposing tax computed on profits or income or computed
on any capital asset, gain or appreciation, or any tax in the nature
of estate duty or inheritance tax, then the imposition of any such tax
shall not be applicable to the Company or any of its operations or its
shares, debentures or other obligations (subject to the proviso
expressed in such assurance as described in the Prospectus);
(ix) The choice of the laws of the State of New York as the
governing law of the Documents is a valid choice of law and would be
recognised and given effect to in any action brought before a court of
competent jurisdiction in Bermuda, except for those laws (i) which
such court considers to be procedural in nature, (ii) which are
revenue or penal laws or (iii) the application of which would be
inconsistent with public policy, as such term is interpreted under the
laws of Bermuda. To the extent Bermuda law is applicable, the
submission in the Documents to the jurisdiction of the New York Court
is valid and binding upon the Company;
(x) The courts of Bermuda would recognise as a valid judgment, a
final and conclusive judgment in personam obtained in the Foreign
Courts against the Company based upon the Documents under which a sum
of money is payable (other than a sum of money payable in respect of
multiple damages, taxes or other charges of a like nature or in
respect of a fine or other penalty) and
19
would give a judgment based thereon provided that (a) such courts had
proper jurisdiction over the parties subject to such judgment, (b)
such courts did not contravene the rules of natural justice of
Bermuda, (c) such judgment was not obtained by fraud, (d) the
enforcement of the judgment would not be contrary to the public policy
of Bermuda, (e) no new admissible evidence relevant to the action is
submitted prior to the rendering of the judgment by the courts of
Bermuda and (f) there is due compliance with the correct procedures
under the laws of Bermuda;
(xi) The Company is not entitled to any immunity under the laws
of Bermuda, whether characterised as sovereign immunity or otherwise,
from any legal proceedings to enforce the Documents in respect of
itself or its property; and
(xii) The Company has been designated as non-resident of Bermuda
for the purposes of the Exchange Control ▇▇▇ ▇▇▇▇ and, as such, is
free to acquire, hold and sell foreign currency (including the payment
of dividends) without restriction. There is no income or other tax of
Bermuda imposed by withholding or otherwise on any dividend or
distribution to be made by the Company to the holders of the Shares.
(f) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel of the Company, shall have
furnished to you his written opinion (in the form set forth in Annex II(c)
hereto), dated such Time of Delivery, to the effect that:
(i) Each of the Company and each subsidiary of the Company (as
such term is defined in Rule 1-02(w) of Regulation S-X as promulgated
by the SEC) has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of failure to be so
qualified in any such jurisdiction, except where the failure to be so
qualified or in good standing as a foreign corporation would not
reasonably be expected to result in a Material Adverse Effect (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(ii) Each subsidiary of Lazard Ltd (as such term is defined in
Rule 1-02(w) of Regulation S-X as promulgated by the SEC) has been
duly incorporated or organized and is validly existing as a corporate
entity in good standing under the laws of its jurisdiction of
incorporation or formation, as applicable, except where the failure to
be so qualified or in good standing would not reasonably be expected
to result in a Material Adverse Effect; and all of the issued shares
of capital stock or other equity interests of each such subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares and
shares or interests in the Paris subsidiary that are owned by Lazard
Group LLC's French managing directors and except as otherwise set
forth or described in the Prospectus) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims, except for such liens, encumbrances, equities or claims as
described in the Prospectus (such counsel being entitled to rely in
respect of the opinion in
20
this clause upon opinions of local counsel and in respect of matters
of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they believe
both you and they are justified in relying upon such opinions and
certificates);
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of such
counsel's knowledge and other than as set forth in the Prospectus, no
such proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
(iv) The issuance and sale of the Shares, compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, except for such breaches, violations or
defaults that would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect;
(v) To the best of such counsel's knowledge, the Company and each
of its subsidiaries have all licenses and concessions of and from all
Governmental Agencies that are necessary to own or lease their
properties and conduct their businesses as described in the
Prospectus, and the Company and each of its subsidiaries have all
franchises, permits, authorizations, approvals and orders and other
licenses and concessions of and from all Governmental Agencies that
are necessary to own or lease their other properties and conduct their
businesses as described in the Prospectus, except for such licenses,
concessions, franchises, permits, authorizations, approvals and orders
the failure to obtain which will not have, individually or in the
aggregate, a Material Adverse Effect;
(vi) To best of such counsel's knowledge, none of the Company's
subsidiaries is in violation of its constitutive documents and neither
the Companynor any of its subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound except for
such violations or defaults which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
and
(vii) The statements set forth in the Prospectus under the
caption "Certain Relationships and Related Transactions", insofar as
they purport to describe the provisions of the documents referred to
therein, are accurate and complete summaries of such provisions in all
material respects.
21
Although such counsel has not verified, is not passing upon, and
does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement,
the Pricing Disclosure Package or the Prospectus, except for those
referred to in the opinion in subsection (vii) of this Section 10(f),
no facts have come to such counsel's attention that lead him to
believe and such counsel has no other reason to believe (i) that, as
of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and notes
or other financial or statistical data included therein, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) that the Pricing Disclosure Package, as of the
Applicable Time, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) that,
as of its date, and as of such Time of Delivery, the Prospectus or any
further amendment or supplement thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules and notes or other financial or statistical data included
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering his opinion, such counsel may state that he
expresses no opinion other than as to the law of the State of New York
and the federal securities laws of the United States.
(g) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, Investment Company Act
counsel for the Company and its subsidiaries, shall have furnished to you
their written opinion (in the form set forth in Annex II(d) hereto), dated
such Time of Delivery, to the effect that none of the Company, Lazard Group
LLC, LLtd Corp II, a Delaware corporation ("Ltd Sub A"), Lltd 2 S.ar.l., a
Luxembourg Company ("Ltd Sub B"), is or, after giving effect to the
offering and sale of the Shares, will be an "investment company", as such
term is defined in the Investment Company Act;
(h) The respective counsel for each of the Selling Shareholders (which
counsel may be internal counsel of the Company), each shall have furnished
to you their written opinion with respect to each of the Selling
Shareholders for whom they are acting as counsel (a draft of each such
opinion is attached as Annex II(e) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) A Power-of-Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Shareholder and constitute
valid and binding agreements of such Selling Shareholder in accordance
with their terms;
(ii) This Agreement has been duly executed and delivered by or on
behalf of such Selling Shareholder; and the sale of the Shares to be
sold by such Selling Shareholder hereunder and the compliance by such
Selling Shareholder with all of the provisions of this Agreement, the
Power-of-Attorney and the Custody Agreement and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any
22
terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which such Selling Shareholder
is a party or by which such Selling Shareholder is bound or to which
any of the property or assets of such Selling Shareholder is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of such Selling Shareholder if
such Selling Shareholder is a corporation, the Partnership Agreement
of such Selling Shareholder if such Selling Shareholder is a
partnership or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over such
Selling Shareholder or the property of such Selling Shareholder;
(iii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the
Shares to be sold by such Selling Shareholder hereunder, except any
such consent, approval, authorization or order which has been duly
obtained and is in full force and effect, such as have been obtained
under the Act and such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of such
Shares by the Underwriters;
(iv) Immediately prior to such Time of Delivery, such Selling
Shareholder had good and valid title to the Shares to be sold at such
Time of Delivery by such Selling Shareholder under this Agreement,
free and clear of all liens, encumbrances or claims, and full right,
power and authority to sell, assign, transfer and deliver the Shares
to be sold by such Selling Shareholder hereunder; and
(v) Immediately prior to such Time of Delivery, good and valid
title to such Shares, free and clear of all liens, encumbrances,
equities or claims, has been transferred to each of the several
Underwriters who have purchased such Shares in good faith and without
notice of any such lien, encumbrance or claim or any other adverse
claim within the meaning of the Uniform Commercial Code.
In rendering the opinion in paragraphs (iv) and (v), such counsel
may rely upon a certificate of such Selling Shareholder in respect of
matters of fact as to ownership of, and liens, encumbrances or claims
on, the Shares sold by such Selling Shareholder, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such certificate;
(i) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, Deloitte &
Touche LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto (the executed copy of the
letter delivered prior to the execution of this Agreement is attached as
Annex I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex I(b)
hereto);
23
(j) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Pricing Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus, and (ii) since the respective
dates as of which information is given in the Registration Statement and
the Pricing Prospectus there shall not have been (a) any change in the
capital stock of the Company or any of its subsidiaries, (b) any change in
the amount of long-term debt of the Company or any of its subsidiaries, or
(c) any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' or members' equity or results of operations of the Company
and its subsidiaries, otherwise than as (1) set forth or contemplated in
the Pricing Prospectus, including the pro forma financial and
capitalization information included therein, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representative so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus, (2) a result of the separation and
recapitalization transactions that occurred at the time of the Company's
initial public offering or (3) a result of any issuance of securities
pursuant to the Company's 2005 Equity Incentive Plan;
(k) On or after the Applicable Time (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred
stock (if any) by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities
or preferred stock (if any);
(l) On or after the Applicable Time there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the London Stock
Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities in New York or London declared
by the relevant authorities, or a material disruption in commercial banking
or securities settlement or clearance services in the United States or the
United Kingdom; (iv) a change or development involving a prospective change
in Bermuda taxation affecting the Company, the Shares or the transfer
thereof; (v) the outbreak or escalation of hostilities involving the United
States, the United Kingdom or Bermuda or the declaration by the United
States, the United Kingdom or Bermuda of a national emergency or war; or
(vi) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions or currency exchange rates or
controls in the United States, the United Kingdom, Bermuda or elsewhere, if
the effect of any such event specified in clause (v) or (vi) in the
judgment of the Representative makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(m) The Shares to be sold by the Company at such Time of Delivery
shall have been duly listed, subject to notice of issuance, on the New York
Stock Exchange;
24
(n) The Company shall have complied with the provisions of Section
7(d) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(o) The Company and the Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and of the Selling Shareholders, respectively,
reasonably satisfactory to you as to the accuracy of the representations
and warranties of the Company and the Selling Shareholder, respectively,
herein at and as of such Time of Delivery, as to the performance by the
Company and the Selling Shareholders of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and as to
such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a), (j) and (k) of this Section, and as to such other
matters as you may reasonably request; and
(p) The Company has delivered to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of the
several Underwriters (i) a lock-up agreement, substantially as set forth in
Annex III hereto, signed by each of the persons or entities listed on
Schedule IV hereto.
11. [Reserved]
12. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Disclosure Package or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any "issuer information"
filed or required to be filed pursuant to Rule 433(d) under the Act, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Disclosure Package or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) Each Selling Shareholder will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, the Basic Prospectus, any Preliminary Prospectus,
the Pricing Disclosure Package or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such
25
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus or
any amendment or supplement thereto or any Issuer Free Writing Prospectus,
in reliance upon and in conformity with written information furnished to
the Company by such Selling Shareholder expressly for use therein; and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; PROVIDED, HOWEVER,
that such Selling Shareholder shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, the Pricing Disclosure Package or the
Prospectus or any such amendment or supplement or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
expressly for use therein. The liability of each Selling Shareholder under
the indemnity contained in this paragraph shall be limited to an amount
equal to the amount of gross proceeds attributable to the sale of such
Selling Shareholder's Shares.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Shareholder against any losses, claims, damages or liabilities
to which the Company or such Selling Shareholder may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus,
or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged
omission to be stated therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus,
the Pricing Disclosure Package or the Prospectus or any amendment thereto,
or supplement or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein; and
will reimburse the Company and such Selling Shareholder for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
26
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 12 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Shareholders on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection
(d) above, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the
Selling Shareholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
each of the Selling Shareholders and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (e)
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (e)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this subsection
(e), (x) no Underwriter shall be required to contribute any amount in
excess of the amount by which
27
the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission and (y)
no Selling Shareholder shall be required to contribute any amount in excess
of the amount of gross proceeds attributable to the sale of such Selling
Shareholder's Shares. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section 12 shall be in addition to any liability which the Company and
the respective Selling Shareholders may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act and each broker-dealer
Affiliate of any Underwriter; and the obligations of the Underwriters under
this Section 12 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person,
if any, who controls the Company or any Selling Shareholder within the
meaning of the Act.
13. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery,
you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange
for the purchase of such Shares, then the Company and the Selling
Shareholders shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you
to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company and the Selling
Shareholders that you have so arranged for the purchase of such Shares, or
the Company and the Selling Shareholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the
Selling Shareholders shall have the right to postpone such Time of Delivery
for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Shareholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased does not
exceed one-eleventh of the aggregate number of all of the Shares to be
purchased at such Time of Delivery, then the Company and the Selling
Shareholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed
to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Shares which such Underwriter agreed to purchase hereunder)
of the Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been
28
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Shareholders as provided in subsection (a) above,
the aggregate number of such Shares which remains unpurchased exceeds
one-eleventh of the aggregate number of all of the Shares to be purchased
at such Time of Delivery, or if the Company and the Selling Shareholders
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter
or Underwriters, then this Agreement (or, with respect to the Second Time
of Delivery, the obligations of the Underwriters to purchase and of the
Company to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or
the Selling Shareholders, except for the expenses to be borne by the
Company and the Selling Shareholders and the Underwriters as provided in
Section 9 hereof and the indemnity and contribution agreements in Section
12 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
14. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Shareholder, and shall survive delivery of and payment for the
Shares.
15. If this Agreement shall be terminated pursuant to Section 13 hereof,
neither the Company nor the Selling Shareholders shall then be under any
liability to any Underwriter except as provided in Sections 9 and 12 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of the
Company and the Selling Shareholders as provided herein, the Company and each of
the Selling Shareholders pro rata (based on the number of Shares to be sold by
the Company and such Selling Shareholder hereunder) will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company and the Selling Shareholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 9 and 12 hereof.
16. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representative; and in all dealings with any Selling Shareholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Shareholder made or given by any
or all of the Attorneys-in-Fact for such Selling Shareholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Registration Department; if to any Selling Shareholder shall be delivered or
sent by mail, telex or facsimile transmission to counsel for such Selling
Shareholder at is address set
29
forth in Schedule II hereto; and if to the Company or LAZ-MD Holdings shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; and if to
any person or entity set forth on Schedule IV shall be delivered or sent by
mail, telex or facsimile transmission to the address or contact specified on
such Schedule IV; provided, however, that any notice to an Underwriter pursuant
to Section 12(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire or telex constituting such Questionnaire, which address will be
supplied to the Company or the Selling Shareholders by you upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
17. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders and, to the
extent provided herein, the officers and directors of the Company and each
person who controls the Company, any Selling Shareholder or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
18. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York court, (ii)
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company and each of the Selling Shareholders
irrevocably waives any immunity to jurisdiction to which it may otherwise be
entitled or become entitled (including sovereign immunity, immunity to
pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against it arising out of or based on this Agreement
or the transactions contemplated hereby which is instituted in any New York
Court or in any competent court in Bermuda. The Company and each of the Selling
Shareholders has appointed Lazard Group LLC, New York, New York, as its
authorized agent (the "Authorized Agent") upon whom process may be served in any
such action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company and each of the
Selling Shareholders represents and warrants that the Authorized Agent has
agreed to act as such agent for service at process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such serviceto the Company or a Selling Shareholder shall be deemed, in every
respect, effective service of process upon the Company or the relevant Selling
Shareholder as the case may be.
19. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company or a Selling Shareholder, as the
case may be, will indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
an Underwriter is able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of the Company or such
Selling Shareholder and shall continue in full force and effect notwithstanding
any such judgment or order as aforesaid. The
30
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into United States dollars.
20. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
21. The Company and each of the Selling Shareholders acknowledges and
agrees that (i) the purchase and sale of the Shares pursuant to this Agreement
is an arm's-length commercial transaction between the Company and the Selling
Shareholders, on the one hand, and the several Underwriters, on the other, (ii)
in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company and each of the Selling Shareholders, (iii) no Underwriter has
assumed an advisory or fiduciary responsibility in favor of the Company or any
of the Selling Shareholders with respect to the offering contemplated hereby or
the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company or any of the Selling Shareholders
on other matters) or any other obligation to the Company or any of the Selling
Shareholders except the obligations expressly set forth in this Agreement and
(iv) the Company and each of the Selling Shareholders has consulted its own
legal and financial advisors to the extent it deemed appropriate. The Company
and each of the Selling Shareholders agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company or any of the
Selling Shareholders, in connection with such transaction or the process leading
thereto.
22. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company or the Selling Shareholders on the
one hand, and the Underwriters, or any of them, on the other, with respect to
the subject matter hereof.
23. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
24. The Company, each of the Selling Shareholders and each of the
Underwriters hereby irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
25. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
26. The Company and each of the Selling Shareholders is authorized, subject
to applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriters imposing any limitation of any kind.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Shareholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Shareholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
31
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power-of-Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Lazard Ltd
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director and General
Counsel
Each Selling Shareholder named in
Schedule II to this Agreement
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director and General
Counsel
As Attorney-in-Fact acting on behalf
of each of the Selling Shareholders
named in Schedule II to this
Agreement.
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
-------------------------------------
On behalf of each of the Underwriters
32