Exhibit 1.1
_______________ SHARES
MONDAY LTD
CLASS A COMMON SHARES, PAR VALUE $0.0001 PER SHARE
UNDERWRITING AGREEMENT
______________, 2002
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Monday Ltd, an exempted company limited by shares registered in Bermuda
(the "COMPANY"), proposes to issue and sell to the several underwriters named in
Schedule II hereto (the "UNDERWRITERS"), and certain firms in the
PricewaterhouseCoopers network named in Schedule IA hereto (collectively, the
"PWC ENTITIES"), and certain other firms in the PricewaterhouseCoopers network
and individuals named in Schedule IB hereto (together with the PwC Entities, the
"SELLING SHAREHOLDERS") hereto severally propose to sell to the several
Underwriters, an aggregate of _______________ Class A common shares, $0.0001 par
value per share, of the Company (the "FIRM SHARES"), of which _______________
shares are to be issued and sold by the Company and _______________ shares are
to be sold by the Selling Shareholders, with each Selling Shareholder selling
the number of shares set forth opposite such Selling Shareholder's name in
Schedule IA or Schedule IB, as the case may be, hereto.
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The Company also proposes to issue and sell to the several Underwriters
not more than an additional ___________ Class A common shares, $0.0001 par value
per share (the "ADDITIONAL SHARES"), if and to the extent that you, as manager
of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of Class A common shares granted
to the Underwriters in Section 3 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES". The Class A
common shares, $0.0001 par value per share, of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the "COMMON STOCK".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (File No. 333-87408),
including a prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS". If the Company has filed an abbreviated
registration statement to register additional shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"),
then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed
to include such Rule 462 Registration Statement.
1. Representations and Warranties of the Company and LuxSub. The
Company and Monday SCA, a Luxembourg partnership limited by shares (societe en
commandite par actions) ("LUXSUB"), jointly and severally, represent and warrant
to, and agree with, each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any 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, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances
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under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply
to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to (x) any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein and (y) any Selling Shareholder furnished to
the Company and the Underwriters in writing by or on behalf of such
Selling Shareholder for use under the caption "Principal and Selling
Shareholders".
(c) The Company has been duly incorporated, is validly
existing as an exempted company limited by shares in good standing
under the laws of Bermuda, has the requisite power (corporate or
otherwise) and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, if the jurisdictions in which the Company
is so qualified to transact business recognize the concept of "good
standing", except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Company and LuxSub and each entity that is contemplated by the Rollup
Agreements to become a direct or indirect subsidiary of LuxSub on the
Closing Date (collectively, the "SUBSIDIARIES"), taken as a whole.
(d) Except as set forth on Schedule 1(d), the Company's only
material asset is the capital stock of LuxSub as described in the
Prospectus and the Company does not directly hold any capital stock,
partnership interest or other equity ownership interest in any other
corporation, partnership, limited liability company, joint venture,
trust, unincorporated organization or other form of business or legal
entity.
(e) LuxSub has been duly organized, is validly existing as a
partnership limited by shares (societe en commandite par actions) in
good standing under the laws of Luxembourg, has the requisite power
(corporate or otherwise) and authority to own its property and to
conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, if the jurisdictions
in which LuxSub is so qualified to transact business recognize the
concept of "good standing", except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company, LuxSub and the Subsidiaries, taken as a whole;
all of the issued shares of capital stock of LuxSub have been duly and
validly authorized and issued, are fully paid and non-assessable and,
except as set forth on Schedule 1(e), are owned directly by the
Company, free and clear of all liens, encumbrances, equities or claims.
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(f) Each Subsidiary has been duly organized, is validly
existing in good standing, if the jurisdiction in which such Subsidiary
is organized recognizes the concept of "good standing", under the laws
of its jurisdiction of organization, has the requisite power (corporate
or otherwise) and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, if the jurisdictions in which such
Subsidiary is so qualified to transact business recognize the concept
of "good standing", except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company, LuxSub and the Subsidiaries, taken as a whole;
all of the issued shares of capital stock of each Subsidiary have been
duly and validly authorized and issued, are fully paid and
non-assessable and, except as set forth in the Prospectus or on
Schedule 1(f), upon the "Closing" under, and as defined in, each of the
various Rollup Agreements among PricewaterhouseCoopers International
Limited ("PWCIL"), the Company or LuxSub, as applicable, and one or
more of the Selling Shareholders (collectively, the "ROLLUP
AGREEMENTS"), will be owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and by LuxSub.
(h) The authorized capital stock of the Company and LuxSub
conform as to legal matters to the descriptions thereof contained in
the Prospectus.
(i) The shares of Common Stock (including the Shares to be
sold by the Selling Shareholders) outstanding prior to the issuance of
the Shares to be sold by the Company have been duly authorized and, on
the Closing Date, will be validly issued, fully paid and
non-assessable.
(j) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the terms
of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights. Except as set forth in any of the
Rollup Agreements or as set forth in the Prospectus, including the
Company's right to exchange the equity interests of LuxSub
securityholders for shares of Common Stock and the exchange rights of
certain holders of exchangeable stock issued by certain Subsidiaries
for shares of Common Stock, there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options to
purchase from the Company, LuxSub or any of the Subsidiaries, or
obligations of the Company, LuxSub or any of the Subsidiaries to issue,
shares of Common Stock or any other class of shares of the Company,
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LuxSub or any of the Subsidiaries; and there are no restrictions on
subsequent transfers of the Shares under the laws of Bermuda. The
permission of the Bermuda Monetary Authority has been obtained for the
free transferability of the Shares.
(k) The execution and delivery by the Company and LuxSub of,
and the performance by the Company and LuxSub of their respective
obligations under, this Agreement, any Rollup Agreement to which either
of them is a party or any other Transaction Agreement (as defined in
the Rollup Agreements) to which either of them is a party, will not
contravene any provision of applicable law or the Company's Memorandum
of Association, the Company's Bye-laws, LuxSub's Articles of
Association, any Rollup Agreement or any other Transaction Agreement to
which either of them is a party, or any agreement or other instrument
binding upon the Company, LuxSub or any of the Subsidiaries, except, in
the case of any such agreement or other instrument, any contravention
that would not, singly or in the aggregate, have a material adverse
effect on the Company, LuxSub and the Subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company, LuxSub or any Subsidiary,
and no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance
by the Company and LuxSub of their respective obligations under this
Agreement, except for any consent, approval, authorization, order or
qualification that (i) may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Shares or (ii) the failure to obtain would not, singly or in the
aggregate, have a material adverse effect on the Company, LuxSub and
the Subsidiaries, taken as a whole.
(l) The Company is not in violation of its Memorandum of
Association or Bye-laws; LuxSub is not in violation of its Articles of
Incorporation; and except for violations or defaults that singly or in
the aggregate would not have a material adverse effect on the Company,
LuxSub and the Subsidiaries, taken as a whole, none of the Subsidiaries
is in violation of any of their constituent documents and neither the
Company, LuxSub nor any of the 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.
(m) Since the date of the Prospectus, there has not occurred
any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or
in the earnings, business or operations of the Company, LuxSub or the
Subsidiaries or of the Consulting Business as defined in each Rollup
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Agreement (collectively, the "CONSULTING BUSINESSES"), taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement).
(n) Except as set forth in the Prospectus, all dividends and
other distributions declared and payable on the shares of share capital
of the Company may under the current laws and regulations of Bermuda be
paid in U.S. dollars that may be freely transferred out of Bermuda
without the necessity of obtaining any consent, approval, authorization
or order of, or qualification with, any Bermuda governmental body or
agency, and all such dividends and other distributions to shareholders
who are not residents of Bermuda will not be subject, under current
laws and regulations, to withholding, deduction or other taxes under
the laws and regulations of Bermuda.
(o) The statements set forth in the Prospectus under the
caption "Material Income Tax Consequences," insofar as they purport to
describe the provisions of the law and documents referred to therein,
are accurate in all material respects.
(p) Except as set forth in the Prospectus, there are no legal
or governmental proceedings pending or, to the knowledge of the
Company, LuxSub or any of the Subsidiaries, threatened to which the
Company, LuxSub, any of the Subsidiaries, or any of the Selling
Shareholders or their direct or indirect subsidiaries insofar as such
proceedings relate to the Consulting Businesses, is a party or to which
any of the properties of the Company, LuxSub, any of the Subsidiaries,
or any of the Selling Shareholders or their direct or indirect
subsidiaries insofar as such proceedings relate to the Consulting
Businesses, is subject that are required to be described in the
Registration Statement or the Prospectus that are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed as required, as the case may be.
(q) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(r) The Company is not, and after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus will not be, required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
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(s) The Company, LuxSub and the Subsidiaries, and the Selling
Shareholders and their direct or indirect subsidiaries insofar as they
relate to the Consulting Businesses, are insured by insurers of
recognized financial responsibility or are self-insured against losses
and risks and in such amounts as are prudent and customary for their
applicable businesses; neither the Company, LuxSub, any of the
Subsidiaries nor any of the Selling Shareholders or their direct or
indirect subsidiaries insofar as it relates to the Consulting
Businesses has, since July 1, 2000, been refused any material insurance
coverage sought or applied for (not including re-insurance); and
neither the Company, LuxSub nor any of the Subsidiaries nor any of the
Selling Shareholders or their direct or indirect subsidiaries insofar
as it relates to the Consulting Businesses has any reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a material adverse effect on the Company, LuxSub
and the Subsidiaries, or on the Consulting Businesses, taken as a
whole.
(t) Deloitte & Touche LLP, who have certified certain
financial statements of the Company, are independent public accountants
as required by the Securities Act and the rules and regulations of the
Commission thereunder.
(u) Except as set forth in the Prospectus, there are no
contracts, agreements or understandings between the Company, LuxSub or
any of the Subsidiaries, on the one hand, and any person, on the other
hand, granting such person the right to require the Company, LuxSub or
any of the Subsidiaries to file a registration statement under the
Securities Act with respect to any securities of the Company, LuxSub or
any of the Subsidiaries or to require the Company, LuxSub or any of the
Subsidiaries to include such securities with the Shares registered
pursuant to the Registration Statement.
(v) As of the Closing, the Company, LuxSub and the
Subsidiaries shall possess all certificates, permits, licenses,
franchise approvals, qualifications, registrations, certifications and
other similar authorizations issued by the appropriate federal, state
or foreign regulatory authorities applicable to the Consulting
Businesses as conducted as of the date of this Agreement and as of
immediately prior to the Closing, except for a failure to possess any
such certificate, permit, license, franchise approval, qualification,
registration, certification or other similar authorization that would
not, singly or in the aggregate, have a material adverse effect on the
Company, LuxSub and the Subsidiaries, or on the Consulting Businesses,
taken as a whole.
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(w) The Shares have been approved for listing on the New York
Stock Exchange (the "EXCHANGE"), subject to official notice of
issuance.
(x) The Company, LuxSub, each of the Subsidiaries, and each of
the Selling Shareholders and their direct or indirect subsidiaries
insofar as it relates to the Consulting Businesses, maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles in the United
States and to maintain asset accountability; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(y) Each of the agreements described in the Prospectus under
the caption "Arrangements with the PricewaterhouseCoopers Network of
Firms" has been duly authorized, executed and delivered by the Company,
LuxSub or the appropriate Subsidiaries, as applicable.
(z) As of the date hereof, all conditions to the "Escrow
Closing" under, and as defined in, each Rollup Agreement listed on
Schedule 1(z) (collectively, the "PRINCIPAL ROLLUP AGREEMENTS"), other
than the execution of this Agreement, have been satisfied or waived. As
of the Closing, the "Escrow Closing" and the "Closing" under, and as
defined in, each Principal Rollup Agreement shall have been
consummated.
2. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder with respect to such Selling Shareholder, severally and not
jointly, represents and warrants to, and agrees with, each of the Underwriters
that:
(a) If such Selling Shareholder is not a natural person, such
Selling Shareholder (i) has been duly organized, (ii) is validly
existing in good standing, if the jurisdiction in which such Selling
Shareholder is organized recognizes the concept of "good standing",
under the laws of the jurisdiction of its organization, (iii) has the
requisite power (corporate or otherwise) and authority to (x) enter
into this Agreement, each Rollup Agreement to which it is a party and
any other Transaction Agreement to which it is a party and (y)
consummate the transactions contemplated by the agreements in clause
(x) above and (iv) is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, if
the jurisdictions in which such entity is so qualified to transact
business recognize the concept of "good standing", except to the
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extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on such Selling Shareholder. If such
Selling Shareholder is a natural person, such Selling Shareholder has
full legal capacity and is competent to (x) enter into this Agreement,
each Rollup Agreement to which such Selling Shareholder is a party and
any other Transaction Agreement to which such Selling Shareholder is a
party and (y) consummate the transactions contemplated by the
agreements in clause (x) above.
(b) This Agreement, each Rollup Agreement to which the Selling
Shareholder is a party and each power of attorney (the "POWER OF
ATTORNEY"), appointing PWCIL such Selling Shareholder's
attorney-in-fact to the extent set forth therein relating to the
transactions contemplated hereby and by the Registration Statement,
have been duly authorized (if such Shareholder is not a natural
person), executed and delivered by or on behalf of such Selling
Shareholder.
(c) The execution and delivery by such Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations
under, this Agreement, each Rollup Agreement to which it is a party,
any other Transaction Agreement to which it is a party, the Custody
Agreement signed by such Selling Shareholder and ____________, as
Custodian, relating to the deposit of the Shares to be sold by such
Selling Shareholder (the "CUSTODY AGREEMENT"), and the Power of
Attorney will not contravene any provision of applicable law, or the
certificate of incorporation or by-laws or other organizational or
constituent document, agreement or instrument of such Selling
Shareholder (if such Shareholder is not a natural person) or any
agreement or other instrument binding upon such Selling Shareholder,
except, in the case of any such agreement, document or other
instrument, any contravention that would not, singly or in the
aggregate, have a material adverse effect on such Selling Shareholder's
ability to perform its obligations under this Agreement, the Rollup
Agreement or any other Transaction Agreement to which it is a party,
the Custody Agreement or the Power of Attorney of such Selling
Shareholder, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over such Selling Shareholder, and
no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by such
Selling Shareholder of its obligations under this Agreement, the Rollup
Agreement or any other Transaction Agreement to which it is a party,
the Custody Agreement or the Power of Attorney of such Selling
Shareholder, except for any consent, approval, authorization, order or
qualification that (i) may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Shares or (ii) the failure to obtain would not, singly or in the
aggregate, have a material adverse effect on such Selling Shareholder's
ability to perform its obligations under this Agreement, the Rollup
Agreement or any other Transaction Agreement to
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which it is a party, the Custody Agreement or the Power of Attorney of
such Selling Shareholder.
(d) As of the Closing, such Selling Shareholder will have
valid title to, or a valid "security entitlement" within the meaning of
Section 8-501 of the New York Uniform Commercial Code in respect of,
the Shares to be sold by such Selling Shareholder free and clear of all
security interests, claims, liens, equities or other encumbrances. Such
Selling Shareholder has, and on the Closing Date will have, the legal
right and power, and all authorization and approval required by law, to
enter into this Agreement, the Custody Agreement and the Power of
Attorney and to sell, transfer and deliver to the Underwriters the
Shares to be sold by such Selling Shareholder or a security entitlement
in respect of such Shares.
(e) The Custody Agreement and the Power of Attorney of such
Selling Shareholder have been duly authorized (if such Shareholder is
not a natural person), executed and delivered by such Selling
Shareholder and are valid and binding agreements of such Selling
Shareholder.
(f) Delivery of the Shares to be sold by such Selling
Shareholder and payment therefor pursuant to this Agreement will pass
valid title to such Shares, free and clear of any adverse claim within
the meaning of Section 8-102 of the New York Uniform Commercial Code,
to each Underwriter who has purchased such Shares without notice of an
adverse claim.
(g) (i) The Registration Statement when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any 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 and (ii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the representations and warranties set forth in this
paragraph 2(g) shall only apply to statements or omissions in the
Registration Statement or the Prospectus relating to such Selling
Shareholder furnished to the Company and the Underwriters in writing by
or on behalf of such Selling Shareholder expressly for use in the
Registration Statement or the Prospectus.
(h) Each of the agreements described in the Prospectus under
the caption "Arrangements with the PricewaterhouseCoopers Network of
Firms" to which such Selling Shareholder is contemplated to be a party
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has been duly authorized (if such Shareholder is not a natural person),
executed and delivered by such Selling Shareholder.
3. Agreements to Sell and Purchase. Each Selling Shareholder and the
Company, severally and not jointly, hereby agree to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from such Selling Shareholder and
the Company at $____ a share (the "PURCHASE PRICE") the number of Firm Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the number of Firm Shares to be
sold by such Selling Shareholder and the Company as the number of Firm Shares
set forth in Schedule II hereto opposite the name of such Underwriter bears to
the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to _____________ Additional
Shares at the Purchase Price. You may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving written notice of
each election to exercise the option, not later than 30 days after the date of
this Agreement. Any exercise notice shall specify the number of Additional
Shares to be purchased by the Underwriters and the date on which such shares are
to be purchased. Each purchase date must be at least one business day after the
written notice is given and may not be earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 5 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. On each
day, if any, that Additional Shares are to be purchased (an "OPTION CLOSING
DATE"), each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) that bears the same proportion to the total number
of Additional Shares to be purchased on such Option Closing Date as the number
of Firm Shares set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
Each of the Selling Shareholders, the Company and LuxSub hereby agrees
that it will not, and the Company and LuxSub agree that they will cause each
Subsidiary not to, without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf
of the Underwriters, during the period ending 180 days after the date of the
Prospectus (or, in the case of the Selling Shareholders, 2 years after the
Closing Date), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, exchange, redeem or otherwise transfer or
dispose of, directly or indirectly, (i) any shares of Common Stock or the
Company's Class X common shares (the "X STOCK") or any securities convertible
into or exercisable
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or exchangeable for Common Stock or X Stock, or (ii) any shares of capital stock
of LuxSub or any securities convertible into or exercisable or exchangeable for
capital stock of LuxSub, or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, X Stock or capital stock of LuxSub or any
securities convertible into or exercisable or exchangeable for Common Stock, X
Stock or capital stock of LuxSub, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock, X Stock,
capital stock of LuxSub or such other securities, in cash or otherwise.
The restrictions contained in the preceding paragraph shall not apply
to (A) the Shares to be sold hereunder, (B) the issuance by the Company of a
number of shares of Common Stock not to exceed shares of Common Stock upon the
exercise of an option or warrant or the exchange, redemption or conversion of a
security outstanding on the date of Closing of which the Underwriters have been
advised in writing prior to the date of this Agreement, including exchanges of
Class I common shares of LuxSub for shares of Common Stock and exchanges of
exchangeable shares of certain Subsidiaries for shares of Common Stock, provided
that, except as otherwise agreed in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the
Underwriters, such shares of Common Stock are subject to the terms of the
restrictions contained in the preceding paragraph, (C) issuance of shares of
Common Stock, Class I common shares of LuxSub and exchangeable shares of certain
Subsidiaries in exchange for "Sub Shares" (as defined in each Rollup Agreement),
(D) the granting by the Company, LuxSub or any of the Subsidiaries of awards
with respect to not more than ___ shares of Common Stock to officers, directors,
consultants or employees (including any person providing services through a
personal services company) under the benefit plans described in the Prospectus,
provided that any such awards are not exercisable, and any shares of Common
Stock subject to any such award may not be delivered, prior to the end of the
180-day lock-up period, and the sale of not more than ___ shares of Common Stock
to officers, directors, consultants or employees (including any person providing
services through a personal services company) under the Company's 2003 Employee
Share Purchase Plan (as described in the Prospectus), (E) any transaction
required under the Company's independence relief no-action letter dated
_________, 2002 from the Commission, (F) the issuance by the Company (or LuxSub)
of a number of shares not exceeding 10% of the Common Stock to be outstanding
immediately following the Closing (assuming all Class I common shares of LuxSub
and exchangeable shares of the Subsidiaries then outstanding are redeemed or
exchanged for newly issued Common Stock on a one-for-one basis), in each case in
connection with acquisitions, including any acquisitions of the consulting
business of a firm in the PricewaterhouseCoopers network that is designated a
"member firm", provided that the recipient of such shares agrees to be bound by
the restrictions contained in the preceding paragraph, (G) the transfer by any
Selling Shareholder of Class I common shares of LuxSub or any exchangeable
shares of any Subsidiary, provided that, prior to any such transfer and any
subsequent transfer, the recipient of any such shares agrees, in an instrument
satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to be
12
bound by the restrictions contained in the preceding paragraph to the same
extent as such Selling Shareholder or subsequent transferee, (H) with respect to
the exceptions in clauses (A), (B), (C), (D) (in the case of (D), only with
respect to the sale of shares of Common Stock), (E) and (F) above, the issuance
by LuxSub of the same number of shares of its equity to the Company and (I) the
sale by any Selling Shareholder of a number of shares of Common Stock which,
when added to the number of shares of Common Stock sold prior thereto pursuant
to this clause (I), shall not exceed the number determined by multiplying the
applicable percentage set forth in the table below by the aggregate number of
shares of Common Stock held by such Selling Shareholder immediately following
the Closing (assuming all Class I common shares of LuxSub and exchangeable
shares of the Subsidiaries then held by such Selling Shareholder are redeemed or
exchanged for newly issued Common Stock on a one-for-one basis).
PERIOD OF TIME FOLLOWING THE CLOSING PERCENTAGE
------------------------------------ ----------
Less than six months................................ 0%
Between 6 months and 12 months...................... 25%
Between 12 months and 18 months..................... 50%
Between 18 months and 24 months..................... 75%
More than 24 months................................. 100%
In addition, each Selling Shareholder agrees that, without the prior
written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock, X Stock or capital stock of LuxSub or any Subsidiary or
any security convertible into or exercisable or exchangeable for Common Stock, X
Stock or capital stock of LuxSub or any Subsidiary.
The provisions set forth in Exhibit A hereto are the "lock-up
provisions" of this Agreement referred to in (i) Section 2.03(a) of the Voting
Agreement (the "VOTING AGREEMENT"), dated as of April 30, 2002, among the
Company and the covered persons signatory thereto and (ii) Section 2.03(a) of
the Transfer Rights Agreement (the "TRANSFER RIGHTS AGREEMENT"), dated as of
April 30, 2002, among LuxSub and the covered persons signatory thereto.
4. Terms of Public Offering. The Selling Shareholders and the Company
are advised by you that the Underwriters propose to make a public offering of
their respective portions of the Shares as soon after the Registration Statement
and this Agreement have become effective as in your judgment is advisable. The
Selling Shareholders and the Company are further advised by you that the Shares
are to be offered to the public initially at $___ a share (the "PUBLIC OFFERING
PRICE") and to certain dealers selected by you at a price that represents a
concession not in excess of $____ a share under the Public Offering Price, and
13
that any Underwriter may allow, and such dealers may reallow, a concession, not
in excess of $___ a share, to any Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by
Selling Shareholders and the Company shall be made to the Selling Shareholders
and the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on __________, 2002, or at such
other time on the same or such other date, not later than _________, 2002, as
shall be designated in writing by you. The time and date of such payment are
referred to as the "CLOSING DATE".
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 3 or at such other time on the same or
on such other date, in any event not later than __________, 2002, as shall be
designated in writing by you.
The Firm Shares and Additional Shares shall be registered in such names
and in such denominations as you shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares shall be
delivered to you on the Closing Date or an Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Shares to the Underwriters
duly paid, against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Selling Shareholders and the Company to sell the Shares to the Underwriters and
the several obligations of the Underwriters to purchase and pay for the Shares
on the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than 4:00 p.m. (New York City time) on the
date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, except as set forth in the Prospectus,
there shall not have occurred any change, or any development involving
a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company, LuxSub and the
Subsidiaries, taken as a whole, or any of the Selling Shareholders or
their direct or indirect subsidiaries insofar as it relates to the
Consulting Businesses, taken as a whole, or on the Consulting
Businesses, taken as a
14
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ judgment, is material and adverse
and that makes it, in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 6(a) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied in all material respects with all of
the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion and supplemental letter of Cravath, Swaine & ▇▇▇▇▇, outside
counsel for the Company and the Selling Shareholders, dated the Closing
Date, substantially in the form attached hereto as Annex A.
(d) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel for the Company,
dated the Closing Date, substantially in the form attached hereto as
Annex B;
(e) The Underwriters shall have received on the Closing Date
an opinion of Linklaters ▇▇▇▇▇▇, Luxembourg counsel for the Company and
LuxSub, dated the Closing Date, substantially in the form attached
hereto as Annex C.
(f) The Underwriters shall have received on the Closing Date
an opinion of local counsel for each Selling Shareholder in the
jurisdiction of each such Selling Shareholder's organization, dated the
Closing Date, substantially in the form attached hereto as Annex D.
The opinions described in Sections 6(c), 6(d), 6(e) and 6(f)
above shall be rendered to the Underwriters at the request of the
Company or one or more of the Selling Shareholders, as the case may be,
and shall so state therein.
(g) The Underwriters shall have received on the Closing Date
an opinion and supplemental letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Underwriters, dated the Closing Date, substantially in
forms reasonably satisfactory to you.
15
(h) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Bermuda counsel for the
Underwriters, dated the Closing Date, substantially in a form
reasonably satisfactory to you.
(i) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from Deloitte & Touche LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(j) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and each partner, officer and director
of the Company, LuxSub or any Subsidiary, relating to sales and certain
other dispositions of shares of Common Stock, X Stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
(k) The Underwriters shall have received on the Closing Date a
certificate with respect to each Selling Shareholder, dated the Closing
Date and signed by the Selling Shareholder if such Selling Shareholder
is an individual or by an executive officer of the Selling Shareholder
if such Selling Shareholder is not an individual, that the
representations and warranties of such Selling Shareholder contained in
this Agreement are true and correct as of the Closing Date and that
such Selling Shareholder has complied in all material respects with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
(l) The Shares to be sold by the Company or any Selling
Shareholder on the Closing Date shall have been duly listed, subject to
notice of issuance, on the Exchange.
(m) The "Escrow Release" under, and as defined in, each
Principal Rollup Agreement shall have been delivered to the
Underwriters in accordance therewith and the "Closing" under, and as
defined in, each Principal Rollup Agreement shall have been
consummated.
(n) On or after the date hereof there shall not have occurred
a material change or prospective change in Bermuda, Luxembourg or
United States taxation affecting the Company, LuxSub, the Shares or the
transfer thereof, or the imposition of new exchange controls by the
▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ that are materially adverse to holders of
shares of Common Stock.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company and LuxSub and the Subsidiaries, the due
authorization and issuance of the Additional Shares to be sold on such Option
Closing Date and other matters related to the issuance of such Additional
Shares.
7. Covenants of the Company and LuxSub. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, two signed copies of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 3:00 p.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in Section 7(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish (at the Company's expense for the first nine
months following the Closing Date and at the Underwriters' expense
thereafter) to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Shares may have
been sold by you on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the
17
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
shall reasonably request, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
consent to service of process in any jurisdiction where it has not
already so qualified or consented.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement
covering the twelve-month period ending ________, 2003 that satisfies
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, not
to grant any options under the benefit plans described in the
Prospectus that are exercisable prior to the termination of the 180-day
lock-up period.
(g) 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. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Selling
Shareholders, jointly and severally, agree to pay or cause to be paid all
expenses incident to the performance of their obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel,
the Company's accountants and counsel for the Selling Shareholders in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale under state
securities laws as
18
provided in Section 7(d) hereof, including filing fees and the reasonable fees
(not to exceed $5,000) and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the
Common Stock and all costs and expenses incident to listing the Shares on the
Exchange, (vi) the cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar or depositary, (viii) the
costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and one-half of the cost of any aircraft
chartered in connection with the road show, (ix) all expenses in connection with
any offer and sale of the Shares outside of the United States, including filing
fees and the reasonable fees and disbursements of counsel (which counsel shall
be chosen in consultation with the Company) for the Underwriters in connection
with offers and sales outside of the United States and (x) all other costs and
expenses incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled "Indemnity
and Contribution", and the last paragraph of Section 12 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Selling Shareholders may otherwise have for the
allocation of such expenses among themselves.
9. Indemnity, Contribution and Limitation of Liability. (a)(i)(A) The
PwC Entities (subject to Section 9(a)(i)(B)), the Company and LuxSub, jointly
and severally, agree to indemnify and hold harmless each Underwriter, each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT") and each affiliate of any Underwriter
within the meaning of Rule 405 under the Securities Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any
19
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Shares, or any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities, unless such failure is the result of noncompliance by the Company
with Section 7(a) hereof.
(B) Notwithstanding the provisions of Section 9(a)(i)(A), the parties
hereto agree that, following the Closing, the PwC Entities shall only be liable
for amounts payable under Section 9(a)(i)(A) in the event that (x) the Company
or LuxSub is bankrupt or insolvent or (y) an indemnified party (as defined
below) shall have obtained a judicial judgment, order or decree (in each case,
which has not been appealed) for amounts payable to such indemnified party under
Section 9(a)(i)(A) (including reimbursement of legal fees or other expenses) and
such indemnified party shall have made a demand upon the Company and LuxSub for
payment of such amounts following such judgment, order or decree, which demand
remains unsatisfied for 60 days or more.
(ii) Each of the Selling Shareholders agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, the officers
of the Company who sign the Registration Statement, LuxSub, each Underwriter,
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and each
affiliate of any Underwriter within the meaning of Rule 405 under the Securities
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to information relating to such Selling Shareholder furnished to
the Company and
20
the Underwriters in writing by or on behalf of such Selling Shareholder
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, LuxSub, the Selling Shareholders, the directors
of the Company, the officers of the Company who sign the Registration Statement
and each person, if any, who controls the Company or any Selling Shareholder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a)(i), 9(a)(ii) or 9(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person or persons against whom
such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the
fees and expenses of more than one
21
separate firm (in addition to any local counsel) for the Company, its directors,
its officers who sign the Registration Statement, LuxSub and each person, if
any, who controls the Company or LuxSub within the meaning of either such
Section and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Selling Shareholders and all persons, if
any, who control any Selling Shareholder within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters and such
control persons and affiliates of any Underwriters, such firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm
for LuxSub, the Company and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Shareholders and such control persons of
any Selling Shareholders, such firm shall be designated in writing by PWCIL, as
attorney in fact for the Selling Shareholders under the Power of Attorney. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d)(i) To the extent the indemnification provided for in Section
9(a)(i), 9(a)(ii) or 9(b) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such Section, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (x) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (y) if the allocation provided by clause 9(d)(x) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(d)(x) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Selling Shareholders, the Company and LuxSub on the one hand and
the Underwriters on the other hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the aggregate net
proceeds received by such Selling Shareholder, the Company and LuxSub under this
Agreement, and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table
22
on the cover of the Prospectus, bear to the aggregate Public Offering Price of
the Shares. The relative fault of the Selling Shareholders, the Company and
LuxSub on the one hand and the Underwriters on the other hand 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 Selling Shareholders, the
Company and LuxSub or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 9 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint.
(ii) Notwithstanding the provisions of Section 9(d)(i), the parties
hereto agree that with respect to amounts payable under Section 9(d)(i) due to
the unavailability or insufficiency of the indemnification provided for in
Section 9(a)(i)(A), following the Closing, the PwC Entities shall only be liable
for amounts payable under Section 9(d)(i) in the event that (x) the Company or
LuxSub is bankrupt or insolvent or (y) an indemnified party shall have obtained
a judicial judgment, order or decree (in each case, which has not been appealed)
for amounts payable to such indemnified party under Section 9(d)(i) (including
reimbursement of legal fees or other expenses) and such indemnified party shall
have made a demand upon the Company and LuxSub for payment of such amounts
following such judgment, order or decree, which demand remains unsatisfied for
60 days or more.
(e) The Selling Shareholders , LuxSub, the Company and the Underwriters
agree that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters or
the Selling Shareholders, as the case may be, were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 9(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 9(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 9 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
23
(f) The indemnity and contribution provisions contained in this Section
9 and the representations, warranties and other statements of the Company,
LuxSub and the Selling Shareholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter, any
person controlling any Underwriter or any affiliate of any Underwriter, any
Selling Shareholder or any person controlling any Selling Shareholder, or the
Company or LuxSub, the officers or directors of the Company or LuxSub or any
person controlling the Company or LuxSub and (iii) acceptance of and payment for
any of the Shares.
(g) Notwithstanding any other provision of this Agreement, the parties
hereto agree that:
(i) the liability of each Selling Shareholder (including any
of the PwC Entities) pursuant to this Section 9 shall be limited to an
amount equal to the aggregate net proceeds received by such Selling
Shareholder under this Agreement; and
(ii) they will look solely to the assets of the Selling
Shareholders that are not individuals (including the PwC Entities) to
satisfy any amounts payable by the Selling Shareholders under this
Section 9 and not to the assets of the partners or shareholders of any
such Selling Shareholder individually.
(h) For purposes of this Section 9, "aggregate net proceeds" shall mean
the aggregate gross proceeds received hereunder in connection with the sale of
the Shares by the Company, LuxSub or a Selling Shareholder, as the case may be,
minus only the underwriting discounts and commissions applicable thereto.
10. [Intentionally omitted.]
11. Termination. The Underwriters may terminate this Agreement by
notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, the New York
Stock Exchange or the Nasdaq National Market, (ii) trading of any securities of
the Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by United States
Federal, New York State, Bermuda or Luxembourg authorities or (v) there shall
have occurred any outbreak or escalation of hostilities, or any change in
financial markets, currency exchange rates or controls, or any calamity or
crisis that, in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ judgment, is material and adverse and which,
singly or together with any other event specified in this clause (v), makes it,
in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ judgment, impracticable or inadvisable to proceed with the
offer, sale or
24
delivery of the Shares on the terms and in the manner contemplated in the
Prospectus.
12. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 12 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
the Selling Shareholders for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Shareholders. In any such case either you or the relevant Selling
Shareholder or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on an Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such Option Closing Date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase the
Additional Shares to be sold on such Option Closing Date or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any of the Selling
Shareholders, the Company or LuxSub to comply with the terms or to fulfill any
of the conditions
25
of this Agreement, or if for any reason any of the Selling Shareholders, the
Company or LuxSub shall be unable to perform its obligations under this
Agreement, the Selling Shareholders will, jointly and severally, reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder. The
provisions of this Section shall not supersede or otherwise affect any agreement
that the Selling Shareholders may otherwise have for the allocation of such
expenses among themselves.
13. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Submission to Jurisdiction; Appointment of Agent for Service. (a)
The Selling Shareholders, the Company and LuxSub irrevocably submit to the
non-exclusive jurisdiction of any New York State or United States Federal court
sitting in The City of New York over any suit, action or proceeding arising out
of or relating to this Agreement, the Prospectus, the Registration Statement or
the offering of the Shares. The Selling Shareholders, the Company and LuxSub
irrevocably waive, to the fullest extent permitted by law, any objection which
any of them may now or hereafter have to the laying of venue of any such suit,
action or proceeding brought in such a court and any claim that any such suit,
action or proceeding brought in such a court has been brought in an inconvenient
forum. To the extent that any of the Selling Shareholders, the Company or LuxSub
has or hereafter may acquire any immunity (on the grounds of sovereignty or
otherwise) from the jurisdiction of any court or from any legal process with
respect to itself or its property, the Selling Shareholders, the Company and
LuxSub irrevocably waive, to the fullest extent permitted by law, such immunity
in respect of any such suit, action or proceeding.
(b) The Selling Shareholders, the Company and LuxSub hereby irrevocably
appoint ______________, with offices at
_________________________________________ as agent for service of process in any
suit, action or proceeding described in the preceding paragraph and agree that
service of process in any such suit, action or proceeding may be made upon it at
the office of such agent. Each of the Selling Shareholders, the Company and
LuxSub waive, to the fullest extent permitted by law, any other requirements of
or objections to personal jurisdiction with respect thereto. Each of the Selling
Shareholders, the Company and LuxSub, jointly and severally, represents and
warrants to the Underwriters that such agent has agreed to act as the agent for
service of process for such person, and the Selling Shareholders, the Company
and LuxSub agree 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.
26
15. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest extent
permitted by law, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Underwriters could purchase United
States dollars with such other currency in The City of New York on the business
day preceding that on which final judgment is given. The obligation of the
Selling Shareholders, the Company and LuxSub with respect to any sum due from it
to any Underwriter or any person controlling any Underwriter shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day following receipt by such Underwriter
or controlling person of any sum in such other currency, and only to the extent
that such Underwriter or controlling person may in accordance with normal
banking procedures purchase United States dollars with such other currency. If
the United States dollars so purchased are less than the sum originally due to
such Underwriter or controlling person hereunder, notwithstanding any such
judgment, the party owing such money shall indemnify such Underwriter or
controlling person against such loss. If the United States dollars so purchased
are greater than the sum originally due to such Underwriter or controlling
person hereunder, such Underwriter or controlling person agrees to pay to the
Selling Shareholders, the Company and LuxSub an amount equal to the excess of
the dollars so purchased over the sum originally due to such Underwriter or
controlling person hereunder.
16. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
17. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
18. Interim Covenants. From the date of this Agreement through the
Closing (the "INTERIM PERIOD"), the PwC Entities, jointly and severally, agree
to cause the Company and LuxSub to comply with and otherwise perform all of
their obligations under this Agreement that are required to be complied with and
performed by the Company or LuxSub during the Interim Period.
Very truly yours,
Monday Ltd
By:
------------------------------
Name:
Title:
27
Monday SCA
By:
------------------------------
Name:
Title:
PricewaterhouseCoopers International
Limited, acting on behalf of
the Selling Shareholders named
in Schedule IA and Schedule IB
By:
------------------------------
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Acting severally on behalf of
itself and the several
Underwriters named in
Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
---------------------------------
Name:
Title:
28
SCHEDULE IA
NUMBER OF FIRM SHARES
SHAREHOLDER TO BE SOLD
PricewaterhouseCoopers LLP (United States)
PricewaterhouseCoopers UK (United Kingdom)
PwC Deutsche Revision Aktiengesellschaft (Germany)
Total:...................................
IA-1
SCHEDULE IB
NUMBER OF FIRM SHARES
SHAREHOLDER TO BE SOLD
Total:.............................
IB-1
SCHEDULE II
NUMBER OF FIRM SHARES TO BE
UNDERWRITER PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
[NAMES OF OTHER UNDERWRITERS]
Total:...........................
II-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 2002
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with the entity that will own, directly or indirectly,
the management consulting and technology services businesses being transferred
from the PricewaterhouseCoopers network of firms (the "COMPANY"), a subsidiary
of the Company ("LUXSUB"), the other Underwriters named therein and the
shareholders of the Company named therein, providing for the public offering
(the "PUBLIC OFFERING") by the several Underwriters, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(the "UNDERWRITERS"), of Class A common shares of the Company (the "COMMON
STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, the undersigned will not, during the
period commencing on the date of the Underwriting Agreement and ending 180 days
after the date of the final prospectus relating to the Public Offering (the
"PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, exchange, redeem or otherwise transfer or
dispose of, directly or indirectly, (i) any shares of Common Stock or Class X
common shares of the Company (the "X STOCK") or any securities convertible into
or exercisable or exchangeable for Common Stock or X Stock, (ii) any capital
stock of LuxSub or any securities convertible into or exercisable or
exchangeable for capital stock of LuxSub or (iii) any shares of capital stock of
any direct or indirect subsidiary of LuxSub (collectively, the "SUBSIDIARIES")
or any securities convertible into or exercisable or exchangeable for capital
stock of any Subsidiary, or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, X Stock, or any capital stock of LuxSub or any
Subsidiary, whether any such transaction described in clause (1) or (2) above is
to be settled by delivery of Common Stock, X Stock or capital stock of LuxSub or
such other securities, in cash or otherwise.
A-1
The foregoing sentence shall not apply to (a) the sale of any shares of Common
Stock to the Underwriters pursuant to the Underwriting Agreement, (b) the pledge
of shares of Common Stock, X Stock or capital stock of LuxSub or any Subsidiary
as security for the timely payment of liquidated damages in respect of any
breach of the undersigned's obligations under the Redemption and Non-Competition
Agreement to be entered into on or about the date of the Underwriting Agreement
between the undersigned and the Company, LuxSub or any Subsidiary, (c)
transactions relating to shares of Common Stock acquired in open market
transactions after the completion of the Public Offering, (d) any transaction
required under the Company's independence relief no-action letter from the
Securities and Exchange Commission or (e) the transfer of Class I common shares
of LuxSub or shares of any Subsidiary held by the undersigned, provided that,
prior to any such transfer and any subsequent transfer, the recipient of any
such shares agrees, in an instrument satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to be bound
by the provisions of this Lock-Up Agreement to the same extent as the
undersigned or subsequent transferee.
In addition, the undersigned agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, the undersigned will
not, during the period commencing on the date of the Underwriting Agreement and
ending 180 days after the date of the Prospectus, make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock, X Stock or capital stock of LuxSub or any Subsidiary, or any security
convertible into or exercisable or exchangeable for Common Stock, X Stock or
capital stock of LuxSub or any Subsidiary. The undersigned also agrees and
consents to the entry of stop transfer instructions with the transfer agent and
registrar of each of the Company, LuxSub and the Subsidiaries against the
transfer of the undersigned's shares of Common Stock, X Stock and capital stock
of LuxSub or any Subsidiary except in compliance with the foregoing
restrictions.
Notwithstanding the foregoing, (i) gifts and transfers by will or
intestacy or (ii) bona fide transfers for no consideration to (A) the
undersigned's members, partners, affiliates or immediate family or (B) a trust,
the beneficiaries of which are the undersigned or members of the undersigned's
immediate family, shall not be prohibited by this Lock-Up Agreement; provided
that (x) prior to any such transfer, the donee or transferee agrees, in an
instrument satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to be bound by the provisions of this
Lock-Up Agreement to the same extent as the undersigned and (y) if the donor or
transferor is a reporting person subject to Section 16(a) of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), any gifts or transfers
made in accordance with this paragraph shall not require such person to, and
such person shall not voluntarily, file a report of such transaction on Form 4
under the Exchange Act. "IMMEDIATE FAMILY" shall mean spouse, lineal
descendants, father, mother, brother or sister of the transferor and father,
mother, brother or sister of the transferor's spouse.
A-2
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters and the other parties
thereto.
Very truly yours,
-----------------------------------------
(Signature)
Name:
-------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
A-3