EXHIBIT 1.1
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SAMSONITE CORPORATION
(a Delaware corporation)
6,258,525 SHARES OF COMMON STOCK
U.S. PURCHASE AGREEMENT
Dated: February ____, 1997
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TABLE OF CONTENTS
U.S. PURCHASE AGREEMENT.................................................... 1
SECTION 1. Representations and Warranties................................. 4
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(a) Representations and Warranties by the Company......................... 4
(b) Representations and Warranties by the Selling Shareholders............ 10
(c) Officer's Certificates................................................ 13
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing................ 13
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(a) Initial Securities.................................................... 13
(b) Option Securities..................................................... 13
(c) Payment............................................................... 14
(d) Denominations; Registration........................................... 14
SECTION 3. Covenants of the Company....................................... 15
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(a) Compliance with Securities Regulations and Commission Requests........ 15
(b) Filing of Amendments.................................................. 15
(c) Delivery of Registration Statements................................... 15
(d) Delivery of Prospectuses.............................................. 16
(e) Continued Compliance with Securities Laws............................. 16
(f) Blue Sky Qualifications............................................... 16
(g) Rule 158.............................................................. 17
(h) Use of Proceeds....................................................... 17
(i) Listing............................................................... 17
(j) Restriction on Sale of Securities..................................... 17
(k) Reporting Requirements................................................ 17
SECTION 4. Payment of Expenses............................................ 18
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(a) Expenses.............................................................. 18
(b) Expenses of the Selling Shareholders.................................. 18
(c) Termination of Agreement.............................................. 19
(d) Allocation of Expenses................................................ 19
SECTION 5. Conditions of U.S. Underwriters' Obligations................... 19
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(a) Effectiveness of Registration Statement............................... 19
(b) Opinion of Counsel for Company........................................ 19
(c) Opinion of Counsel for the Selling Shareholders....................... 19
(d) Opinion of Counsel for U.S. Underwriters.............................. 20
(e) Officers' Certificate................................................. 20
(f) Certificate of Selling Shareholders................................... 20
(g) Accountant's Comfort Letter........................................... 20
(h) Bring-down Comfort Letter............................................. 21
(i) Approval of Listing................................................... 21
(j) No Objection.......................................................... 22
(k) Lock-up Agreements.................................................... 21
(l) Purchase of International Securities.................................. 21
(m) Conditions to Purchase of Option Securities........................... 21
(n) Additional Documents.................................................. 22
(o) Termination of Agreement.............................................. 22
i
SECTION 6. Indemnification................................................ 22
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(a) Indemnification of U.S. Underwriters.................................. 22
(b) Indemnification of Company, Directors and Officers
and Selling Shareholders............................................ 24
(c) Actions against Parties; Notification................................. 25
(d) Settlement without Consent if Failure to Reimburse.................... 25
(e) Indemnification for Reserved Securities............................... 25
(f) Other Agreements with Respect to Indemnification...................... 25
SECTION 7. Contribution................................................... 26
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SECTION 8. Representations, Warranties and Agreements to
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Survive Delivery............................................... 27
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SECTION 9. Termination of Agreement....................................... 27
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(a) Termination; General.................................................. 27
(b) Liabilities........................................................... 28
SECTION 10. Default by One or More of the U.S. Underwriters............... 28
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SECTION 11. Default by One or More of the Selling Shareholders
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or the Company................................................ 26
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SECTION 12. Notices....................................................... 29
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SECTION 13. Parties....................................................... 29
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SECTION 14. GOVERNING LAW AND TIME........................................ 30
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SECTION 15. Effect of Headings............................................ 30
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ii
SCHEDULES
Schedule A - List of U.S. Underwriters............................. Sch A-1
Schedule B - List of Selling Shareholders.......................... Sch B-1
Schedule C - Pricing Information................................... Sch C-1
Schedule D - List of Subsidiaries.................................. Sch D-1
Schedule E - List of Persons subject to Lock-up.................... Sch E-1
Schedule F - Liens on Stock of Significant Subsidiaries............ Sch F-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel....................... A-1
Exhibit B - Form of Opinion for the Selling Shareholders............... B-1
Exhibit C - Form of Lock-up Letter..................................... C-1
ANNEXES
Annex A - Form of Accountant's Comfort Letter...................... Annex A-1
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SAMSONITE CORPORATION
(a Delaware corporation)
6,258,525 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
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Dated: February ___, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
PaineWebber Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
as U.S. Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Samsonite Corporation, a Delaware corporation (the "Company"), and the
persons listed in Schedule B hereto (the "Selling Shareholders"), confirm their
respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other U.S. Underwriters
named in Schedule A hereto (collectively, the "U.S. Underwriters", which term
shall also include any U.S. Underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇; Bear, ▇▇▇▇▇▇▇ & Co. Inc.; ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation; ▇▇▇▇▇▇▇, Sachs & Co.; ▇▇▇▇▇▇ Brothers
Inc.; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated; PaineWebber Incorporated; and ▇▇▇▇▇
▇▇▇▇▇▇ Inc. are acting as representatives (in such capacity, the "U.S.
Representatives"), with respect to (i) the sale by the Company and the Selling
Shareholders, acting severally and not jointly, and the purchase by the U.S.
Underwriters, acting severally and not jointly, of the respective numbers of
shares of Common Stock, par value $.01 per share, of the Company ("Common
Stock") set forth in Schedules A and B hereto and (ii) the grant by the Company
and the Selling Shareholders to the U.S. Underwriters, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of 625,852 additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 6,258,525 shares of Common Stock (the
"Initial U.S. Securities") to be purchased by the U.S. Underwriters and all
or any part of the 625,852 shares of Common Stock subject to the option
described in Section 2(b) hereof (the "U.S. Option Securities") are hereinafter
called, collectively, the "U.S. Securities."
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for the offering by the Company
and the Selling Shareholders of an aggregate of 1,564,631 shares of Common Stock
(the "Initial International Securities") through arrangements with certain
underwriters outside the United States and Canada (the "International Managers")
for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ International; Bear, ▇▇▇▇▇▇▇ International Limited;
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation; ▇▇▇▇▇▇▇, Sachs
International; ▇▇▇▇▇▇ Brothers International (Europe); ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited; PaineWebber International; and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. are
acting as lead managers (the "Lead Managers") and the grant by the Company and
the Selling Shareholders to the International Managers, acting severally and not
jointly, of an option to purchase all or any part of the International Managers'
pro rata portion of up to 156,463 additional shares of Common Stock solely to
cover over-allotments, if any (the "International Option Securities" and,
together with the U.S. Option Securities, the "Option Securities"). The Initial
International Securities and the International Option Securities are hereinafter
called the "International Securities." It is understood that the Company is not
obligated to sell and the U.S. Underwriters are not obligated to purchase, any
Initial U.S. Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters," the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities," and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "Global Coordinator").
The Company and the Selling Shareholders understand that the U.S.
Underwriters propose to make a public offering of the U.S. Securities as soon as
the Representatives deem advisable after this Agreement has been executed and
delivered.
The Company, the Selling Shareholders and the Underwriters agree that up to
150,000 shares of the Securities to be purchased by the Underwriters (the
"Reserved Securities") shall be reserved for sale by the Underwriters to certain
eligible employees of and persons having business relationships with the
Company, as part of the distribution of the Securities by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc., and all
other applicable laws, rules and regulations. To the extent that such Reserved
Securities are not orally confirmed for purchase by such eligible employees of
and persons having business relationships with the Company by the end of the
first business day after the date of this Agreement, such Reserved Shares may be
offered to other members of the public as part of the public offering
contemplated hereby.
2
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-18405) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b).
Two forms of prospectus are to be used in connection with the offering and sale
of the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical
to the Form of U.S. Prospectus, except for the front cover and back cover pages
and the information under the caption "Underwriting" and the inclusion in the
Form of International Prospectus of a section under the caption "Certain United
States Federal Tax Considerations to Non-United States Holders." The
information included in any such prospectus or in any such Term Sheet, as the
case may be, that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information." Each Form of U.S. Prospectus and
Form of International Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of U.S. Prospectus and the final Form of
International Prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated January 7, 1997, and preliminary
International Prospectus dated January 7, 1997, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the U.S. Prospectus, the International Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
3
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and Form of International Prospectus) or the Prospectuses (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and Form of International Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company represents
and warrants to each U.S. Underwriter as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof, and agrees with each U.S. Underwriter,
as follows:
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
The Prospectuses as of their respective dates do not and as of the
Closing Date (as defined in Section 2(c) hereof) will not, and any
supplement or amendment thereto, if any, as of its date will not, contain
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 the
Prospectuses, any preliminary prospectuses and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their respective
times of issuance and at the Closing Time, complied and will comply in all
material respects with any applicable laws or regulations of foreign
jurisdictions in which the Prospectuses and such preliminary prospectuses,
as amended or supplemented, if applicable, are distributed in connection
with the offer and sale of Reserved Securities, except that the
representations and warranties contained in this paragraph (a) shall not
apply to statements or omissions in the Prospectuses (or any supplement or
amendment thereto) based upon information furnished to the Company in
writing by or on behalf of the Selling Shareholders or any U.S. Underwriter
expressly for use therein. The Prospectuses delivered to the Underwriters
for use in connection with this offering were identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
4
(ii) The Company is and each of its significant subsidiaries (as
defined in Rule 1-02 under Regulation S-X as promulgated by the Commission)
(the "Significant Subsidiaries") is existing as a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, has the requisite corporate power and
authority to carry on its business as it is currently being conducted and
to own, lease and operate its properties, and is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole. Except as set forth in Schedule F,
all of the outstanding shares of capital stock or other securities
evidencing equity ownership of each Significant Subsidiary of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable, are not subject to preemptive or similar rights and, except
as set forth in the Prospectuses or in Schedule F, are owned by the Company
or a subsidiary of the Company free and clear of any security interest,
claim, lien or encumbrance. Except as set forth in the Prospectuses or in
Schedule F, there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in any Significant Subsidiary of the
Company, except for such rights held by the Company or its subsidiaries.
The Company has the requisite corporate power and authority to enter into
and perform its obligations under this Agreement, the International
Purchase Agreement and to issue, sell and deliver to the U.S. Underwriters
the U.S. Securities to be sold by the Company to the U.S. Underwriters
pursuant hereto and to sell and deliver to the International Managers the
International Securities to be sold by the Company to the International
Managers pursuant thereto. The Common Stock conforms to all statements
relating thereto contained in the Prospectuses and such descriptions
conform to the rights set forth in the instruments defining the same; no
holder of the Securities will be subject to personal liability solely by
reason of being such a holder; and the issuance of the Securities to be
issued and sold by the Company pursuant hereto is not subject to the
preemptive or other similar rights of any securityholder of the Company.
(iii) Neither the Company nor any of its Significant Subsidiaries is
in violation of its charter or by-laws or in default in the performance of
any obligation, agreement or condition contained in any bond, debenture,
note, evidence of indebtedness, indenture, instrument or other agreement to
which the Company or any of its subsidiaries is a party or by which it or
any of its Significant Subsidiaries or their respective properties are
bound, except such violations or defaults that would not have a material
adverse effect upon the Company and its subsidiaries, taken as a whole.
(iv) The execution, delivery and performance of this Agreement and the
International Purchase Agreement by the Company, compliance by the Company
with the provisions hereof and thereof and the consummation by the Company
of the transactions contemplated hereby and thereby will not (i) conflict
with or constitute a breach of any of the terms or provisions of the
respective charter or bylaws of the
5
Company or any of its Significant Subsidiaries, (ii) constitute a default
under, or result in the imposition of a lien or encumbrance on any
properties of the Company or any of its Significant Subsidiaries pursuant
to, or an acceleration of indebtedness pursuant to, any bond, debenture,
note, indenture, mortgage, deed of trust or other agreement or instrument
to which the Company or any of its Significant Subsidiaries is a party or
by which any of them or their property is bound, (iii) violate any law or
administrative regulation applicable to the Company, any of its Significant
Subsidiaries or any of their assets or properties, or (iv) violate any
judgment, order or decree of any court or governmental agency or authority
entered in any proceeding to which the Company or any of its Significant
Subsidiaries was or is now a party or to which any of them or their
respective properties may be subject, except, in the case of clauses (ii),
(iii) and (iv), such default, impositions and violations that would not
have a material adverse effect upon the Company and its subsidiaries, taken
as a whole. No consent, approval, authorization or order of, or filing or
registration with, any regulatory body, administrative agency, or other
governmental agency (except as securities or Blue Sky laws of the various
states may require) is required on the part of the Company, for the
execution, delivery and performance of this Agreement and the International
Purchase Agreement and the valid issuance and sale of the Securities to be
sold by the Company pursuant hereto and thereto, other than (i) those that
have been or will be obtained or made on or prior to the Closing Date, as
required under the 1933 Act or the 1933 Act Regulations, (ii) those that
have been obtained under the laws and regulations of jurisdictions outside
the United States in which the Reserved Securities are offered and (iii)
those that are not required to be obtained or made on or prior to the
Closing Date. No consents or waivers from any person (other than any
regulatory body, administrative agency or other governmental agency) are
required on the part of the Company, to consummate the transactions
contemplated by this Agreement, the International Purchase Agreement or the
Prospectuses, other than (i) such consents and waivers as have been or will
be obtained on or prior to the Closing Date and (ii) those that are not
required to be obtained on or prior to the Closing Date.
(v) This Agreement and the International Purchase Agreement have been
duly authorized and validly executed by the Company and (assuming the due
execution and delivery thereof by the Selling Shareholders, U.S.
Underwriters and the International Managers) are legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with its terms, except as the enforceability thereof may be limited (i) by
the effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors, (ii) by the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefor
may be brought and (iii) to the extent that rights to indemnification and
contribution thereunder may be limited by federal or state securities laws
or public policy relating thereto may be unenforceable.
(vi) There is (i) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened or
contemplated, to which the Company or any of its Significant Subsidiaries
is or may be a party or to which the business or property of the Company or
any of its Significant Subsidiaries is or may be subject, (ii) no statute,
6
rule, regulation or order that has been enacted, adopted or issued by any
governmental agency or that, to the knowledge of the Company, has been
proposed by any governmental body, or (iii) no injunction, restraining
order or order of any nature issued by a federal or state court of
competent jurisdiction to which the Company or any of its Significant
Subsidiaries is subject that, in the case of clauses (i), (ii) and (iii)
above, (w) is required to be disclosed in the Prospectuses, that is not so
disclosed, (x) is not disclosed in the Prospectuses and would materially
and adversely affect the Company and its subsidiaries, taken as a whole,
(y) would interfere with or adversely affect the issuance of the Securities
in any material respect or (z) except to the extent referred to in clauses
(i), (ii) and (iii) of paragraph (v) above would in any manner draw into
question the validity of this Agreement, the International Purchase
Agreement or the Securities. There is no contract or document concerning
any of the Company or its Significant Subsidiaries of a character required
to be described in the Prospectuses that is not so described as required.
(vii) All income and other material tax returns required to be filed
by the Company or any of its Significant Subsidiaries in any jurisdiction
have been filed, other than those filings being contested in good faith,
and all material taxes, including withholding taxes, penalties and
interest, assessments, fees and other charges shown to be due on such
returns or claimed to be due from such entities have been paid, other than
those being contested in good faith and for which adequate reserves have
been provided in the Company's financial statements (in accordance with
generally accepted accounting principles) or those currently payable
without penalty or interest.
(viii) Neither the Company nor any of its Significant Subsidiaries is
involved in any material labor dispute nor, to the knowledge of the Company
or any of its Significant Subsidiaries, is any material dispute threatened
that, if such dispute were to occur, would have a material adverse effect
on the condition (financial or other), business, property, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole.
(ix) Neither the Company nor any of its Significant Subsidiaries has
violated any safety or similar law applicable to its business, nor any
federal, state or local law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable federal or state wages and
hours laws, nor any provisions of the Employee Retirement Income Security
Act of 1974, as amended, or the rules and regulations promulgated
thereunder, which in each case would have a material adverse effect on the
business, financial condition or results of operations of the Company and
its subsidiaries, taken as a whole. To the best of the Company's knowledge,
the Company and its Significant Subsidiaries are in substantial compliance
with all applicable existing federal, state, local and foreign laws and
regulations relating to protection of human health or the environment or
imposing liability or standards of conduct concerning any Hazardous
Material ("Environmental Laws"), except for such instances of noncompliance
which, either singly or in the aggregate, would not have a material adverse
effect on the condition (financial or other), business, property, net worth
or results of operations of the Company and its subsidiaries, taken as a
whole. The term "Hazardous Material" means (i) any "hazardous substance" as
defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, (ii) any "hazardous
7
waste" as defined by the Resource Conservation and Recovery Act, as
amended, (iii) any petroleum or petroleum product, (iv) any polychlorinated
biphenyl and (v) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material, waste or substance regulated under or within the
meaning of any other Environmental Law.
(x) The Company and its Significant Subsidiaries have such material
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("Permits") as are necessary to own, lease and
operate their respective properties and to conduct their business in the
manner described in the Prospectuses, other than Permits the absence of
which, in the aggregate, will not have a material adverse effect on the
Company and its subsidiaries, taken as a whole. The Company and its
Significant Subsidiaries have fulfilled and performed all of their material
obligations with respect to such Permits and no event has occurred that
allows, or after notice or lapse of time or both would allow, revocation or
termination by the Company thereof or which results in any other material
impairment of the rights of the holder of any such Permit, and such Permits
contain no restrictions that are materially burdensome to the Company and
its Significant Subsidiaries, taken as a whole. Neither the Company nor any
of its Significant Subsidiaries knows that any governmental body or agency
is considering limiting, suspending or revoking any such Permit.
(xi) The Company and each of its Significant Subsidiaries has good and
marketable title, free and clear of all liens, claims, encumbrances and
restrictions to all property and assets described in the Prospectuses as
being owned by it, except as described in the Prospectuses (including the
financial statements) or that would not have a material adverse effect upon
the condition (financial or other), business, property, prospects, net
worth or results of operations of the Company and its subsidiaries, taken
as a whole. All material leases to which the Company or any of its
Significant Subsidiaries is a party are valid and binding, and no default
has occurred or is continuing thereunder which might result in any material
adverse change in the business, financial condition or results of operation
of the Company and its subsidiaries, taken as a whole, and the Company and
its Significant Subsidiaries enjoy peaceful and undisturbed possession
under all such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the Company
or such Significant Subsidiary.
(xii) The Company and each of its Significant Subsidiaries maintains
liability, casualty and other insurance (subject to customary deductibles
and retentions) with responsible insurance companies against such risks
companies engaged in similar businesses as the Company and its Significant
Subsidiaries operate (which may include self-insurance in comparable form
to that maintained by such responsible companies).
(xiii) The consolidated historical financial statements, together
with related schedules and notes, forming part of the Prospectuses (and any
amendment or supplement thereto), present fairly, in all material respects,
the consolidated financial position, results of operations and cash flows
of the entities covered thereby, at the respective dates or for the
respective periods to which they apply; such historical financial
statements and related notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved,
8
except as disclosed therein; and the other historical financial information
set forth in the Prospectuses (and any amendment or supplement thereto), in
all material respects, is fairly presented and prepared on a basis
consistent with such financial statements and the books and records of the
entities covered thereby.
(xiv) The Company and each of its Significant Subsidiaries maintains
a system of internal accounting controls sufficient to provide reasonable
assurance that:
(A) transactions are executed in accordance with management's
general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; and
(C) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect thereto.
(xv) Except as contemplated by or set forth in the Prospectuses,
subsequent to the respective dates as of which information is given in the
Prospectuses, and up to the Closing Date, unless the Company has notified
the Underwriters as provided herein:
(A) none of the Company or its Significant Subsidiaries has
entered into any material transactions not in the ordinary course of
business;
(B) there has not been any material decrease in the Company's or
any of its Significant Subsidiaries' capital stock, or any material
increase in long-term indebtedness (other than borrowings in the
ordinary course of business to meet working capital requirements) or
any material increase in short-term indebtedness of the Company or its
Significant Subsidiaries or any payment of or declaration to pay any
dividends or any other distribution with respect to the Company's
capital stock; and
(C) there has not been any material adverse change in the
condition (financial or other), business, property, net worth or
results of operations of the Company and its subsidiaries, taken as a
whole.
(xvi) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectuses, when they
became effective or at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as applicable, and, when read together with the other
information in the Prospectuses, at the time the Registration Statement
became effective, at the time the Prospectuses were issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date of
9
Delivery), did not 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.
(xvii) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectuses or the documents
incorporated by reference therein or to be filed as exhibits thereto which
have not been so described and filed as required.
(xviii) The Company is not required to be registered or regulated as
an "investment company" as defined in the Investment Company Act of 1940,
as amended.
(xix) To the best of the Company's knowledge, KPMG Peat Marwick LLP
is an independent public accountant with respect to the Company within the
meaning of the Act.
(xx) The Company is not presently doing business with the Government
of Cuba or with any person or any affiliate located in Cuba.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder severally represents and warrants to each U.S. Underwriter
as of the date hereof (except as otherwise noted below), as of the Closing Time,
and, if the Selling Shareholder is selling Option Securities on a Date of
Delivery, as of each such Date of Delivery, and agrees with each U.S.
Underwriter, as follows:
(i) Accurate Disclosure. To the extent that any statements or
-------------------
omissions made in the Registration Statement, any preliminary prospectus,
the Prospectuses or any amendment or supplement thereto are made in
reliance upon and in conformity with written information furnished to the
Company or the Underwriters by such Selling Shareholder expressly for use
therein, such preliminary prospectus and the Registration Statement did,
and the Prospectuses and any further amendments or supplements to the
Registration Statement and the Prospectuses, 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 1933 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, in the light
of the circumstances under which they were made, not misleading; such
Selling Shareholder is not prompted to sell (y) the U.S. Securities to be
sold by such Selling Shareholder hereunder or (z) the International
Securities to be sold by such Selling Shareholder under the International
Purchase Agreement by any information concerning the Company or any
subsidiary of the Company which is not set forth in the Prospectuses.
(ii) Authorization of Agreements. Such Selling Shareholder has the
---------------------------
full right, power and authority to enter into this Agreement, the
International Purchase Agreement and a Power of Attorney Agreement (the
"Power of Attorney Agreement") and to sell, transfer and deliver the
Securities to be sold by such Selling Shareholder hereunder and under the
International Purchase Agreement. The execution and delivery of this
Agreement, the International Purchase Agreement and the Power of Attorney
Agreement
10
and the sale and delivery of the Securities to be sold by such Selling
Shareholder and the consummation of the transactions contemplated herein
and in the International Purchase Agreement and compliance by such Selling
Shareholder with its obligations hereunder and thereunder do not and will
not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or result
in the creation or imposition of any tax, lien, charge or encumbrance upon
the Securities to be sold by such Selling Shareholder or any property or
assets of such Selling Shareholder pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or
other agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder may be 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, or of the Partnership Agreement of such
Selling Shareholder if such Selling Shareholder is a Partnership, or any
applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over such Selling Shareholder or any of its
properties.
(iii) Good and Marketable Title. Such Selling Shareholder (A) has
-------------------------
(except as previously disclosed in writing to the Underwriters) (B) in the
case of Initial Securities, will have at the Closing Time and (C) if any
Option Securities are purchased, in the case of such Option Securities,
will have on the Date of Delivery, good and marketable title to such
Securities to be sold by such Selling Shareholder hereunder and under the
International Purchase Agreement, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind,
other than pursuant to this Agreement and the International Purchase
Agreement; and upon delivery of such Securities and payment of the purchase
price therefor as herein contemplated, assuming each such Underwriter has
no notice of any adverse claim, each of the Underwriters will receive good
and marketable title to the Securities purchased by it from such Selling
Shareholder, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement. Such
--------------------------------------------------------
Selling Shareholder has duly executed and delivered, in the form heretofore
furnished to the Representatives, the Power of Attorney Agreement
appointing the persons indicated in Schedule B hereto, and each of them, as
such Selling Shareholder's attorneys-in-fact (the "Attorneys-in-Fact"); and
each Attorney-in-Fact is authorized to execute and deliver this Agreement
and the certificate referred to in Section 5(f) hereof or that may be
required pursuant to Sections 5(l) and 5(m) hereof on behalf of such
Selling Shareholder, to execute and deliver the International Purchase
Agreement and any certificates that may be required thereunder, to sell,
assign and transfer to the Underwriters the Securities to be sold by such
Selling Shareholder hereunder and under the International Purchase
Agreement, to determine the purchase price to be paid by the Underwriters
to such Selling Shareholder, as provided in Section 2(a) hereof and as
provided in the International Purchase Agreement, to authorize the delivery
of the U.S. Securities to be sold by such Selling Shareholder hereunder and
the delivery of the International Securities under the International
Purchase Agreement, to accept payment therefor, and otherwise to act on
11
behalf of such Selling Shareholder in connection with this Agreement and
the International Purchase Agreement.
(v) Absence of Manipulation. 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 as such terms are defined in, or causing any violation of, the 1934
Act to facilitate the sale or resale of the Securities.
(vi) Absence of Further Requirements. No filing with, or consent,
-------------------------------
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling Shareholder of
its obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the U.S.
Securities hereunder or the consummation of the transactions contemplated
by this Agreement or in connection with the sale and delivery of the
International Securities under the International Purchase Agreement or the
consummation of the transactions contemplated thereby, except (i) such as
may have previously been made or obtained or as may be required under the
1933 Act or the 1933 Act Regulations or state securities laws or other
applicable laws and (ii) such as have been obtained under the laws and
regulations of jurisdictions outside the United States in which the
Reserved Shares are offered.
(vii) Restriction on Sale of Securities. During a period of 90 days
---------------------------------
from the date of the Prospectuses, such Selling Shareholder will not,
without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) 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 or otherwise transfer or dispose of, directly or indirectly, any
share of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply
to the Securities to be sold hereunder and under the International Purchase
Agreement; provided, however, that this paragraph (vii) shall not prohibit
the transfer by such Selling Shareholder to any affiliate of such Selling
Shareholder in a private transaction not requiring registration under the
1933 Act, or the pledge of shares of Common Stock, provided that such
affiliate, transferee and/or lender or creditor, as the case may be, agrees
and acknowledges in writing to ▇▇▇▇▇▇▇ ▇▇▇▇▇ that it is bound by the same
restrictions in this paragraph (vii).
(viii) Tax Equity and Fiscal Responsibility Act. In order to
----------------------------------------
document the U.S. 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ prior to or at the Closing Time 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 of thereof).
12
(ix) No Association with NASD. Neither such Selling Shareholder nor
------------------------
any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of Securities
Dealers, Inc. (the "NASD") (except Chelonian Corp., Valise Limited
Partnership and High River Limited Partnership, each of which is controlled
by ▇▇▇▇ ▇. Icahn, the Chairman of Icahn & Co., Inc., a member of the NASD).
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the U.S.
Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the Global Coordinator, the U.S.
Representatives or to counsel for the U.S. Underwriters pursuant to the terms of
this Agreement shall be deemed a representation and warranty by such Selling
Shareholder to each U.S. Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
-----------------------------------------------
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder, severally and not jointly,
agree to sell to each U.S. Underwriter, severally and not jointly, and each U.S.
Underwriter, severally and not jointly, agrees to purchase from the Company and
each Selling Shareholder, at the price per share set forth in Schedule C, that
proportion of the number of Initial U.S. Securities set forth in Schedule B
opposite the name of the Company or such Selling Shareholder, as the case may
be, which the number of Initial U.S. Securities set forth in Schedule A opposite
the name of such U.S. Underwriter, plus any additional number of Initial U.S.
Securities which such U.S. Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof, bears to the total number of Initial
U.S. Securities, subject, in each case, to such adjustments among the U.S.
Underwriters as the Global Coordinator in its sole discretion shall make to
eliminate any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company and each Selling Shareholder hereby grants an option to
the U.S. Underwriters, severally and not jointly, to purchase up to an
additional 625,852 shares of Common Stock, as set forth in Schedule B, at the
price per share set forth in Schedule C, less an amount per share equal to any
dividends or distributions declared by the Company and payable on the Initial
U.S. Securities but not payable on the U.S. Option Securities. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering over-
allotments which may be made in connection with the offering and distribution of
the Initial U.S. Securities upon notice by the Global Coordinator to the Company
and the Selling Shareholders setting forth the number of U.S. Option Securities
as to which the several U.S. Underwriters are then exercising the option and the
time and date of payment and delivery for such U.S. Option Securities. Any such
time and date of delivery (a "Date of
13
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven, nor earlier than three, full business days after the exercise of
said option, nor in any event prior to the Closing Time, as hereinafter defined.
If the option is exercised as to all or any portion of the U.S. Option
Securities, each of the U.S. Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of U.S. Option Securities then
being purchased which the number of Initial U.S. Securities set forth in
Schedule A opposite the name of such U.S. Underwriter bears to the total number
of Initial U.S. Securities, subject in each case to such adjustments as the
Global Coordinator in its discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Akin,
Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by the Global Coordinator, the Company
and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Global Coordinator, the Company and the Selling
Shareholders (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the U.S. Option Securities are
purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator, the Company and the Selling Shareholders, on each Date of
Delivery as specified in the notice from the Global Coordinator to the Company
and the Selling Shareholders.
Payment shall be made to the Company and the Selling Shareholders by wire
transfer of immediately available funds to bank accounts designated by the
Company and the Custodian pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the U.S.
Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as a
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least two full business days before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the
Initial U.S. Securities and the U.S. Option Securities, if any, will be made
available for examination and packaging by the U.S. Representatives in The City
of New York not later than 10:00 A.M. (Eastern
14
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each U.S.
------------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b) hereof, will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Global Coordinator immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectuses or any amended Prospectuses
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectuses or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
of any order preventing or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Global Coordinator or counsel for the U.S. Underwriters shall object within
a reasonable period of time subsequent to furnishing such document to the
Global Coordinator.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the U.S. Representatives and counsel for the U.S.
Underwriters, without charge, signed copies of the Registration Statement
as originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the U.S.
Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the U.S. Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted
15
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus
as such U.S. Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each U.S. Underwriter, without charge, during
the period when the U.S. Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the U.S. Prospectus (as
amended or supplemented) as such U.S. Underwriter may reasonably request.
The U.S. Prospectus and any amendments or supplements thereto furnished to
the U.S. Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement, the International
Purchase Agreement and in the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities by any Underwriter, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion
of counsel for the U.S. Underwriters and for the Company, to amend the
Registration Statement or amend or supplement the U.S. Prospectus or the
International Prospectus in order that the Prospectuses will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the U.S. Prospectus or the International Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to
the U.S. Underwriters such number of copies of such amendment or supplement
as the U.S. Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the U.S. Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as
16
may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds."
(i) Listing. The Company's Common Stock is currently traded on the
Nasdaq National Market under the symbol "SAMC". The Company will use its
best efforts to maintain the quotation of the Common Stock on the Nasdaq
National Market and will file with the Nasdaq National Market all documents
and notices required by the Nasdaq National Market of companies that have
securities that are traded in the over-the-counter market and quotations
for which are reported by the Nasdaq National Market.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly,
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 or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or under the International
Purchase Agreement, (B) any shares of Common Stock issued by the Company
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectuses, (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in
the Prospectuses or (D) any shares of Common Stock issued pursuant to any
non-employee director stock plan or dividend reinvestment plan; provided,
however, that this paragraph (j) shall not prohibit the issuance and sale
of securities of the Company in connection with acquisitions so long as
such issuance and sale is exempt from the registration requirements of
Section 5 of the 1933 Act and the recipient of such securities agrees to a
substantially identical restriction on transfer for the remainder of such
90-day period.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file
17
all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) Compliance with NASD Rules. The Company hereby agrees that it
will ensure that the Reserved Securities will be restricted as required by
the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of this
Agreement. The Underwriters will notify the Company as to which persons
will need to be so restricted. At the request of the Underwriters, the
Company will direct the transfer agent to place a stop transfer restriction
upon such securities for such period of time. Should the Company release,
or seek to release, from such restrictions, any of the Reserved Securities,
the Company agrees to reimburse the Underwriters for any reasonable
expenses (including, without limitation, legal expenses) they incur in
connection with such release.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay or
-------------------
cause to be paid all expenses incident to the performance of its obligations
under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, the International Purchase
Agreement, the Intersyndicate Agreement, any agreement among underwriters and
such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon such sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the fees and
expenses of any transfer agent or registrar for the Securities, (viii) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review by the NASD of the terms of the
sale of the Securities, (ix) the fees and expenses incurred in connection with
the inclusion of the Securities in the Nasdaq National Market and (x) all costs
and expenses of the Underwriters, including the fees and disbursements of
counsel for the Underwriters, in connection with the matters related to the
Reserved Securities which are designated by the Company for sale to employees
and others having a business relationship with the Company.
(b) Expenses of the Selling Shareholders. The Selling Shareholders will
pay all expenses incident to the performance of their respective obligations
under, and the consummation of the transactions contemplated by this Agreement
and the International Purchase Agreement, including (i) any stamp duties,
capital duties and stock transfer taxes, if any, payable upon the sale of the
Securities to the Underwriters, and their transfer between the Underwriters
pursuant to an agreement between such Underwriters, and (ii) the fees and
disbursements of their respective counsel and accountants.
18
(c) Termination of Agreement. If this Agreement is terminated by the U.S.
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company [AND THE SELLING SHAREHOLDERS, PRO RATA BASED
ON THE NUMBER OF SHARES OF SECURITIES TO BE SOLD BY SUCH PERSON,] shall
reimburse the U.S. Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the U.S.
Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The obligations
--------------------------------------------
of the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the U.S.
Underwriters. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b) (or a post-
effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if
the Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel
for the Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters to the effect set forth in Exhibit A
hereto.
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the U.S. Representatives shall have received the favorable opinions, dated
as of Closing Time, of (i) Willkie, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and (ii) Gordon,
Altman, Butowsky, Weitzen, Shalov & ▇▇▇▇, counsel for the Selling
Shareholders, each in form and substance satisfactory to counsel for the
U.S. Underwriters, together with signed or reproduced copies of such
letters for each of the other U.S. Underwriters to the effect set forth in
Exhibit B hereto.
19
(d) Opinion of Counsel for U.S. Underwriters. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the
U.S. Underwriters, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters with respect to the matters set
forth in clauses (i), (ii), (xv) (solely as to preemptive or other similar
rights arising by operation of law or under the charter or by-laws of the
Company), (x), (xiii), (xiv), (xvii), (xx) (solely as to the information in
the Prospectuses under "Description of Capital Stock--Common Stock") and
the last paragraph of Exhibit A hereto.
In giving the opinions referred to in paragraphs (b), (c) and (d)
above, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York, the federal law
of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the U.S.
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(e) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
the U.S. Representatives shall have received a certificate of the President
or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect
that to the best of their knowledge (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
are contemplated by the Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the U.S.
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the
effect that (i) the representations and warranties of such Selling
Shareholder contained in Section 1(b) hereof are true and correct in all
respects with the same force and effect as though expressly made at and as
of Closing Time and (ii) such Selling Shareholder has complied in all
material respects with all agreements and all conditions on its part to be
performed under this Agreement at or prior to Closing Time.
(g) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the U.S. Representatives shall have received from KPMG Peat
Marwick LLP, a letter dated such date, in form and substance satisfactory
to the U.S. Representatives, together with signed or reproduced copies of
such letter for each of the
20
other U.S. Underwriters 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 Prospectuses, substantially
in the Form of Annex A hereto.
(h) Bring-down Comfort Letter. At Closing Time, the U.S.
Representatives shall have received from KPMG Peat Marwick LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (g) of this Section,
except that the specified date referred to shall be a date not more than
three business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have
been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(j) Lock-up Agreements. At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in the form
of Exhibit C hereto signed by the persons listed on Schedule E hereto.
(k) Purchase of Initial International Securities. Contemporaneously
with the purchase by the U.S. Underwriters of the Initial U.S. Securities
under this Agreement, the International Managers shall have purchased the
Initial International Securities under the International Purchase
Agreement.
(l) Conditions to Purchase of U.S. Option Securities. In the event
that the U.S. Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the U.S. Option Securities, the
representations and warranties of the Company and the Selling Shareholders
contained herein and the statements in any certificates furnished by the
Company, any subsidiary of the Company and the Selling Shareholders
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the U.S. Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
---------------------
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Certificate of Selling Shareholders. A certificate, dated such
-----------------------------------
Date of Delivery, of an Attorney-in-Fact on behalf of each Selling
Shareholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
------------------------------
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the
Company, in form and substance satisfactory to counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b) hereof.
21
(iv) Opinion of Counsel for the Selling Shareholders. The favorable
-----------------------------------------------
opinions of (i) Willkie, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and (ii) Gordon, Altman,
Butowsky, Weitzen, Shalov & ▇▇▇▇, counsel for the Selling
Shareholders, each in form and substance satisfactory to counsel for
the U.S. Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by Section 5(c)
hereof.
(v) Opinion of Counsel for U.S. Underwriters. The favorable opinion
----------------------------------------
of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from KPMG Peat Marwick LLP,
-------------------------
in form and substance satisfactory to the Representatives and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the U.S. Representatives pursuant to Section
5(g) hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Date of Delivery.
(n) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the U.S. Underwriters shall have been furnished with
such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and the Selling
Shareholders in connection with the issuance and sale of the Securities as
herein contemplated shall be reasonably satisfactory in form and substance
to the Representatives and counsel for the U.S. Underwriters.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of U.S.
Option Securities on a Date of Delivery which is after the Closing Time,
the obligations of the several U.S. Underwriters to purchase the relevant
U.S. Option Securities, may be terminated by the U.S. Representatives by
notice to the Company at any time at or prior to Closing Time or such Date
of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of U.S. Underwriters. (1) The Company agrees to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act to
22
the extent and in the manner set forth in
clauses (i), (ii), (iii) and (iv) below and in Section 6(a)(3):
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
laws or regulations of foreign jurisdictions where Reserved Securities have
been offered and (B) any untrue statement or alleged untrue statement of a
material fact included in the supplement or prospectus wrapper material
distributed in foreign jurisdictions in connection with the reservation and
sale of the Reserved Securities to eligible employees of and persons having
business relationships with the Company or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, when
considered in conjunction with the Prospectuses or preliminary
prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(1)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company and the Selling Shareholders; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission or
in connection with any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof, to the extent that any such expense is not paid
under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense (i) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representatives expressly
23
for use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or (ii) with respect to any prospectus resulting from the fact that the
U.S. Underwriters sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the U.S.
Prospectus, as amended or supplemented, if the Company shall have previously
furnished copies thereof to the U.S. Underwriters in accordance with this
Agreement and the U.S. Prospectus, as amended or supplemented, would have
corrected such untrue statement or omission.
(2) Each of the Selling Shareholders will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and the
Company against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the 1933 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 preliminary prospectus, the
Registration Statement or the Prospectuses, 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 untrue statement or alleged untrue statement or omission
or alleged omission was made in any preliminary prospectus, the Registration
Statement or the Prospectuses or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company or the
Underwriters 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
any preliminary prospectus, the Registration Statement or the Prospectuses or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇
expressly for use therein.
(3) Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of a U.S.
Underwriter or who controls a U.S. Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act and who, at the date of this
Agreement, is a director or officer of the Company or controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
such indemnity agreement is subject to the undertaking of the Company in the
Registration Statement under Item 17 thereof.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and
each Selling Shareholder and each person, if any, who controls any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act
24
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the U.S. Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such U.S. Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the U.S. Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(1)(iii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Indemnification for Reserved Securities. In connection with the offer
and sale of the Reserved Securities, the Company agrees, promptly upon a request
in writing, to indemnify
25
and hold harmless the Underwriters from and against any and all losses,
liabilities, claims, damages and expenses incurred by them as a result of the
failure of eligible employees of and persons having business relationships with
of the Company to pay for and accept delivery of Reserved Securities which, by
the end of the first business day following the date of this Agreement, were
subject to a properly confirmed agreement to purchase.
(f) Other Agreements with Respect to Indemnification. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) 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 U.S. Underwriters on the other hand
from the offering of the U.S. Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and of the U.S. Underwriters on the
other hand in connection with the statements or omissions, or in connection with
any violation of the nature referred to in Section 6(a)(1)(ii)(A) hereof, which
resulted in such losses, liabilities, claims, damages or expenses, 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 U.S. Underwriters on the other hand in connection with
the offering of the U.S. Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the U.S. Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Shareholders and the total
underwriting discount received by the U.S. Underwriters, in each case as set
forth on the cover of the U.S. Prospectus, or, if Rule 434 is used, the
corresponding location on the Term Sheet bear to the aggregate initial public
offering price of the U.S. Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the one
hand and the U.S. Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the U.S. Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission,
or in connection with any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof.
The Company, the Selling Shareholders and the U.S. Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the U.S. 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
26
to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the U.S. Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
U.S. Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No Selling Shareholder shall be required to contribute in excess of the
amount such Selling Shareholder would have paid as an indemnity pursuant to
Section 6 hereof [PLUS ANY EXPENSES PURSUANT TO SECTION 4(c) HEREOF].
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or any Selling Shareholder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company or such Selling Shareholder, as the case may be. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any U.S. Underwriter or controlling person, or by or on behalf of the Company or
the Selling Shareholders, and shall survive delivery of the U.S. Securities to
the U.S. Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the U.S. Prospectus, any material adverse change in the
27
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the U.S. Representatives, impracticable
to market the Securities or to enforce contracts for the sale of the Securities,
or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
-----------------------------------------------
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of U.S. Securities to be purchased on such date, each of the non-
defaulting U.S. Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
U.S. Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the U.S. Underwriters to purchase and of the Company to sell
the U.S. Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any non-
defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
28
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either (i) the U.S. Representatives or (ii) the
Company and any Selling Shareholder shall have the right to postpone Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or U.S. Prospectus or in any other documents or arrangements. As used
herein, the term "U.S. Underwriter" includes any person substituted for an U.S.
Underwriter under this Section 10.
SECTION 11. Default by One or More of the Selling Shareholders or the
---------------------------------------------------------
Company. (a) If a Selling Shareholder shall fail at Closing Time or at a Date
-------
of Delivery to sell and deliver the number of U.S. Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of U.S. Securities to be sold by
them hereunder to the total number to be sold by all Selling Shareholders as set
forth in Schedule B hereto, then the U.S. Underwriters may, at the option of the
U.S. Representatives, by notice from the U.S. Representatives to the Company and
the non-defaulting Selling Shareholders, either (a) terminate this Agreement
without any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or
(b) elect to purchase the U.S. Securities which the non-defaulting Selling
Shareholders and the Company have agreed to sell hereunder. No action taken
pursuant to this Section 11 shall relieve any Selling Shareholder so defaulting
from liability, if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to in this
Section 11, each of the U.S. Representatives, the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectuses or in any other documents
or arrangements.
(b) If the Company shall fail at Closing Time or at the Date of Delivery
to sell the number of U.S. Securities that it is obligated to sell hereunder,
then this Agreement shall terminate without any liability on the part of any
non-defaulting party; provided, however, that the provisions of Sections 1, 4,
6, 7 and 8 shall remain in full force and effect. No action taken pursuant to
this Section shall relieve the Company from liability, if any, in respect of
such default.
SECTION 12. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives at North Tower, World
Financial Center, New York, New York 10281-1201, attention of [_______]; notices
to the Company shall be directed to it at Samsonite Corporation, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
and notices to the Selling Shareholders shall be directed to the appropriate
address as specified in Schedule B attached hereto.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the U.S. Underwriters, the Company and the Selling
Shareholders and their respective
29
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the U.S.
Underwriters, the Company and the Selling Shareholders and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the U.S.
Underwriters, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of U.S. Securities from any U.S. Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
30
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Attorney-in-Fact for the Selling
Shareholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the U.S. Underwriters, the
Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
SAMSONITE CORPORATION
By_______________________________________
Title:
CHELONIAN CORP.
By_______________________________________
Attorney-in-Fact
VALISE LIMITED PARTNERSHIP
By_______________________________________
Its_________________________________
By_________________________________
Attorney-in-Fact
HIGH RIVER LIMITED PARTNERSHIP
By_______________________________________
Its_________________________________
By_________________________________
Attorney-in-Fact
31
GFI II, L.P.
By_______________________________________
Its_________________________________
By_________________________________
Attorney-in-Fact
GFI III, L.P.
By_______________________________________
Its_________________________________
By_________________________________
Attorney-in-Fact
GREEN FAMILY FOUNDATION
By_______________________________________
Attorney-In-Fact
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By_______________________________
Authorized Signatory
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
By_______________________________
Authorized Signatory
32
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
By_______________________________
Authorized Signatory
▇▇▇▇▇▇▇, Sachs & Co.
By_______________________________
Authorized Signatory
▇▇▇▇▇▇ Brothers Inc.
By_______________________________
Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By_______________________________
Authorized Signatory
PaineWebber Incorporated
By_______________________________
Authorized Signatory
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By_______________________________
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A hereto.
33
SCHEDULE A
Number of
Initial
Name and address of U.S. Underwriter U.S. Securities
------------------------------------ ---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES
CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, SACHS & CO.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ BROTHERS INC.
3 WORLD FINANCIAL CENTER
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PAINEWEBBER
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
TOTAL.......................................... 6,258,525
=========
Sch A-1
SCHEDULE B
Number of Initial Maximum Number of U.S.
U.S. Securities to be Option Securities to Be
Sold Sold
--------------------- -----------------------
SAMSONITE CORPORATION
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CHELONIAN CORP. (a)
c/o Icahn Associates Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Icahn
VALISE LIMITED PARTNERSHIP (b)
c/o Icahn Associates Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Icahn
HIGH RIVER LIMITED
PARTNERSHIP (c)
c/o Icahn Associates Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Icahn
GFI II, L.P. (d)
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GFI III, L.P. (e)
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GREEN FAMILY FOUNDATION (f)
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Total................................. 6,258,525
=============
Sch B-1
(a) This Selling Shareholder is represented by ▇▇▇▇▇▇ ▇▇▇▇▇▇ Butowsky
▇▇▇▇▇▇▇ Shalov & ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
and has appointed ▇▇▇▇ ▇. Icahn and ▇▇▇▇ ▇▇▇▇▇▇▇, and each of them, as the
Attorneys-in-Fact for such Selling Stockholder.
(b) This Selling Shareholder is represented by ▇▇▇▇▇▇ ▇▇▇▇▇▇ Butowsky
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and
has appointed ▇▇▇▇ ▇. Icahn and ▇▇▇▇ ▇▇▇▇▇▇▇, and each of them, as the
Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Shareholder is represented by ▇▇▇▇▇▇ ▇▇▇▇▇▇ Butowsky
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and
has appointed ▇▇▇▇ ▇. Icahn and ▇▇▇▇ ▇▇▇▇▇▇▇, and each of them, as the
Attorneys-in-Fact for such Selling Stockholder.
(d) This Selling Shareholder is represented by Willkie, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and has appointed [▇▇▇▇ ▇▇▇▇▇ AND
_____________], and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(e) This Selling Shareholder is represented by Willkie, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and has appointed [▇▇▇▇ ▇▇▇▇▇ AND
_____________], and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
(f) This Selling Shareholder is represented by Willkie, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and has appointed [▇▇▇▇ ▇▇▇▇▇ AND
_____________], and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
Sch B-2
SCHEDULE C
SAMSONITE CORPORATION
6,258,525 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $______.
2. The purchase price per share for the U.S. Securities to be paid by
the several U.S. Underwriters shall be $______, being an amount equal to the
initial public offering price set forth above less $______ per share ; provided
that the purchase price per share for any U.S. Option Securities purchased upon
the exercise of the over-allotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial U.S. Securities but not payable on the
U.S. Option Securities.
Sch C-1
SCHEDULE D
[LIST OF SUBSIDIARIES]
Sch D-1
SCHEDULE E
PERSONS AND ENTITIES INITIALLY
SUBJECT TO LOCK-UP
1. Apollo Investment Fund, L.P.
2. Lion Advisers, L.P.
3. [CHELONIAN CORP.
4. VALISE LIMITED PARTNERSHIP
5. HIGH RIVER LIMITED PARTNERSHIP
6. GFI II, L.P.
7. GFI III, L.P.
8. GREEN FAMILY FOUNDATION
9. SAMSONITE CORPORATION]
Sch E-1
SCHEDULE F
LIENS ON STOCK OF SIGNIFICANT SUBSIDIARIES;
RIGHTS, WARRANTS AND OPTIONS
TO ACQUIRE SUBSIDIARIES' STOCK
Sch F-1
Exhibit A
OPINIONS OF SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
SPECIAL COUNSEL TO THE COMPANY
1. The Company has been duly incorporated and is subsisting and in good
standing as a corporation under the laws of the State of Delaware. The opinion
set forth in this paragraph 1 with respect to the Company subsisting and in good
standing as a corporation under the laws of the State of Delaware is based
solely upon our review of a certificate of the Secretary of State of the State
of Delaware and a telegram from the Secretary of State of the State of Delaware.
2. The Company has the corporate power and authority to conduct its
business and to own, lease, and operate its properties, in each case as
described in the Prospectuses.
3. The Company has the corporate power and authority to execute, deliver,
and perform its obligations under the Purchase Agreements and to issue, sell,
and deliver the Common Stock to the Underwriters pursuant to the Purchase
Agreements.
4. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, by reason of the ownership of, or the conduct of
business through, any subsidiary of the Company that contributed more than 10%
of the revenues of the Company and its subsidiaries on a consolidated basis
(each, a "Material Subsidiary") except where the failure so to qualify or to be
in good standing would not materially adversely affect the Company.
5. The execution and delivery by the Company of each of the Purchase
Agreements and the performance by the Company of its obligations thereunder, the
compliance by the Company with the provisions thereof, and the consummation by
the Company of the transactions contemplated thereby, each in accordance with
its terms, do not (a) violate or conflict with the Restated Charter or the By-
laws, (b) constitute a violation of or a default under any Applicable Contract,
or (c) result in the creation of any lien or encumbrance upon any of the
property of the Company or any of its subsidiaries pursuant to any Applicable
Contracts [TO BE DEFINED AS THOSE CONTRACTS AND AGREEMENTS IDENTIFIED ON
SCHEDULE I HERETO AND ALL CONTRACTS AND AGREEMENTS REFERENCED IN THE
PROSPECTUSES, INCLUDING SUCH CONTRACTS AND AGREEMENTS INCORPORATED BY REFERENCE
THERETO] (except that, with respect to the foregoing clauses (b) and (c), we
express no opinion as to any covenant, restriction or provision of any
Applicable Contract with respect to financial ratios or tests or any aspect of
the financial condition or results of operations).
6. Each of the Purchase Agreements constitutes a valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms, except that (a) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or
A-1
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principals of equity (regardless of whether
enforceability is considered at law or in equity) and (b) the indemnification
and contribution provisions contained in the Purchase Agreements may be limited
by federal or state securities laws or the public policy underlying such laws.
7. The execution and delivery by the Company of each of the Purchase
Agreements, the performance by the Company of its obligations thereunder, the
compliance by the Company with the provisions thereof, and the consummation by
the Company of the transactions contemplated thereby, each in accordance with
its terms, will not contravene any provision of any Applicable Law. We express
no opinion in this paragraph 7, however, with respect to (a) any state
securities or Blue Sky laws or (b) the information contained in, or the
accuracy, completeness, or correctness of, the Prospectuses, which matters are
dealt with in paragraph 20 below and the paragraph following paragraph 20 below.
8. The execution and delivery by the Company of each of the Purchase
Agreements, the performance by the Company of its obligations thereunder, the
compliance by the Company with the provisions thereof and the consummation by
the Company of the transactions contemplated thereby, each in accordance with
its terms, will not contravene any Applicable Order.
9. No Governmental Approval or any consent or waiver under any Applicable
Contract, which has not been obtained or taken and is not in full force and
effect, is required for the execution or delivery by the Company of the Purchase
Agreements or the performance by the Company of its obligations thereunder, the
compliance by the Company with the provisions thereof or the consummation by the
Company of the transactions contemplated thereby, each in accordance with its
terms, except those which are not required to be obtained prior to the Closing
Date. We express no opinion in this paragraph 8, however, with respect to any
state securities or Blue Sky laws.
10. The execution and delivery by the Company of each of the Purchase
Agreements, the performance by the Company of its obligations thereunder, the
compliance by the Company with the provisions thereof and the consummation by
the Company of the transactions contemplated thereby, each in accordance with
its terms, have been duly authorized by all requisite corporate action on the
part of the Company. The Purchase Agreements have been duly executed and
delivered by the Company.
11. The Company is not required to be registered or regulated as an
"investment company" as such term is defined under the Investment Company Act of
1940.
12. The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectuses; the Securities to be purchased by the
Underwriters from the Selling Shareholders have been duly authorized and validly
issued and are, will be, or in the case of those Securities to be sold by ▇▇.
▇▇▇▇▇, when delivered to and paid for by ▇▇. ▇▇▇▇▇ in accordance with the terms
of the Option Agreements will be, fully paid and non-assessable.
13. The Securities to be purchased by the Underwriters from the Company have
been duly authorized for issuance and sale to the Underwriters pursuant to the
Purchase Agreements and, when issued and delivered by the Company pursuant to
the Purchase Agreements against payment of the consideration set forth in the
Purchase Agreements, will be
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validly issued and fully paid and non-assessable and no holder of the Securities
is or will be subject to personal liability solely by reason of being such a
holder.
14. The issuance and sale of the Securities by the Company and the sale of
the Securities by the Selling Shareholders is not subject to the preemptive or
other similar rights of any securityholder of the Company arising under any
Applicable Contract or the Certificate of Incorporation or By-Laws of the
Company.
15. Each Material Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses and
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
Material Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and, to the best of our knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Material Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such Material
Subsidiary.
16. The Registration Statement, including the Rule 430A Information and
the Rule 434 Information, as applicable, the Prospectuses, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, excluding the documents incorporated
by reference therein, as of their respective effective or issue date complied as
to form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations.
17. The documents incorporated by reference in the Prospectuses when they
became effective or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the 1933 Act or the
1934 Act , as applicable, and the rules and regulations of the Commission
thereunder.
18. The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable requirements of the Delaware General
Corporation Law and with any applicable requirements of the charter and by-laws
of the Company.
19. The information in the Prospectuses under "Description of Capital
Stock--Common Stock" and "Certain United States Federal Tax Consequences to Non-
United States Holders" and in the Registration Statement under Item 15, to the
extent that it constitutes matters of law, summaries of legal matters, contracts
and agreements, the Company's charter and bylaws or legal conclusions, has been
reviewed by us and is correct in all material respects.
20. To the best of our knowledge, there are no statutes or regulations that
are required to be described in the Prospectuses that are not described as
required.
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21. All descriptions in the Registration Statement of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects; to the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
22. Although we have not undertaken, except as otherwise indicated in this
opinion, to determine independently and we do assume responsibility for, the
accuracy or completeness of the information in the Prospectuses (except to the
extent referred to in paragraph 20 above), we have participated in conferences
with officers and representatives of the Company, counsel for the Company,
representatives of the independent accountants of the Company and you at which
the contents of the Prospectuses and related matters were discussed and, on the
basis of the foregoing, no facts have come to our attention that have led us to
believe that the Prospectuses (taken together with the documents incorporated
therein by reference), as of the date hereof or thereof, contains or contained
an untrue statement of a material fact or omits or omitted to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that we express no belief
with respect to the financial statements, financial statement schedules and
other financial data included therein or excluded therefrom or the exhibits to
the Registration Statement.
A-4
Exhibit B
OPINIONS OF COUNSEL FOR EACH SELLING SHAREHOLDER
[CAPITALIZED TERMS USED AS DEFINED IN THE U.S. PURCHASE AGREEMENT]
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the
order of the Commission declaring the Registration Statement effective and
such authorizations, approvals or consents as may be necessary under state
securities laws, as to which we need express no opinion) is necessary or
required to be obtained by the Selling Shareholders for the performance by
each Selling Shareholder of its obligations under the Purchase Agreement
or in the Power of Attorney and Custody Agreement, or in connection with
the offer, sale or delivery of the Securities.
(ii) Each Power of Attorney and Custody Agreement has been duly executed and
delivered by the respective Selling Shareholders named therein and
constitutes the legal, valid and binding agreement of such Selling
Shareholder.
(iii) The Purchase Agreement has been duly authorized, executed and delivered
by or on behalf of each Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling Shareholders
to deliver the Securities on behalf of the Selling Shareholders in
accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase Agreements and the
Power of Attorney Agreement and the sale and delivery of the Securities
and the consummation of the transactions contemplated in the Purchase
Agreements and in the Registration Statement and compliance by the Selling
Shareholders with its obligations under the Purchase Agreements have been
duly authorized by all necessary action on the part of the Selling
Shareholders and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach
of, or default under or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities or any property or assets
of the Selling Shareholders pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease or
other instrument or agreement to which any Selling Shareholder is a party
or by which they may be bound, or to which any of the property or assets
of the Selling Shareholders may be subject nor will such action result in
any violation of any law, administrative regulation, judgment or order of
any governmental agency or body or any administrative or court decree
having jurisdiction over such Selling Shareholder or any of such Selling
Shareholder's properties.
(vi) To the best of our knowledge, each Selling Shareholder has or, in the case
of Initial Securities, will have at the Closing Time, or, in the case of
Option Securities, will have at the Date of Delivery, valid and marketable
title to such Securities to be sold by such Selling Shareholder pursuant
to the Purchase Agreements, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind, and has full
right, power and authority to sell,
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transfer and deliver such Securities pursuant to the Purchase Agreements.
By delivery of a certificate or certificates therefor such Selling
Shareholder will transfer to the Underwriters who have purchased such
Securities pursuant to the Purchase Agreements (without notice of any
defect in the title of such Selling Shareholder and who are otherwise bona
fide purchasers for purposes of the Uniform Commercial Code) valid and
marketable title to such Securities, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind.
B-2
Exhibit C
February ___, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
PaineWebber Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
as Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by Samsonite Corporation
-------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [AND AN OFFICER AND/OR DIRECTOR] of Samsonite
Corporation, a Delaware corporation (the "Company"), understands that ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇"); Bear, ▇▇▇▇▇▇▇ & Co. Inc.; ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation; ▇▇▇▇▇▇▇, Sachs & Co.; ▇▇▇▇▇▇ Brothers Inc.; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated; PaineWebber Incorporated; and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. propose to enter
into a U.S. Purchase Agreement (the "U.S. Purchase Agreement") with the Company
and the Selling Shareholders (as defined in the U.S. Purchase Agreement) and
▇▇▇▇▇▇▇ ▇▇▇▇▇; Bear, ▇▇▇▇▇▇▇ International Limited; ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation; ▇▇▇▇▇▇▇ Sachs International; ▇▇▇▇▇▇ Brothers
International (Europe); ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited; PaineWebber
International; and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. propose to enter into an International
Purchase Agreement (the "International Purchase Agreement", and together with
the U.S. Purchase Agreement, the "Purchase Agreements") the Company and the
Selling Shareholders providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $.01 per share (the
"Common Stock"). In recognition of the benefit that such an offering will
confer upon the undersigned as a stockholder [AND AN OFFICER AND/OR DIRECTOR] of
the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
u.s. underwriter (as defined in the U.S. Purchase Agreement) that, during a
period of 90 days from the date of the Purchase Agreements, the undersigned will
not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly,
(i) offer, pledge, sell, contract to sell, sell any
C-1
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise. Anything to the contrary notwithstanding, the foregoing
restrictions shall not apply to the transfer by the undersigned to any affiliate
of the undersigned or to any other transferee in a private transaction not
requiring registration under the Securities Act of 1933, as amended, or to any
bona fide pledge of shares of Common Stock provided that such affiliate or other
transferee and/or lender or creditor agrees and acknowledges in writing to
▇▇▇▇▇▇▇ ▇▇▇▇▇ that it is bound by the provisions of this letter.
Very truly yours,
Signature: ____________________________
Print Name: ___________________________
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Annex A
[ACCOUNTANT'S COMFORT LETTER]