[4,500,000] Shares
▇▇▇▇▇▇▇▇ ▇▇▇▇ COMPANY
Common Stock
(Par Value $.01 Per Share)
UNDERWRITING AGREEMENT
[_________], 1999
[__________], 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International Limited
BT Alex. ▇▇▇▇▇ International, a division of Bankers Trust International PLC
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs and Madames:
Certain stockholders of ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company, a Delaware corporation
(the "Company"), named in Schedules IA and IB hereto (the "Selling
Stockholders") propose to sell to the several Underwriters (as defined below) an
aggregate of [4,500,000] shares of the common stock, par value $.01 per share,
of the Company (the "Firm Shares"), each Selling Stockholder selling the number
of Firm Shares set forth opposite such Selling Stockholder's name in Schedules
IA and IB hereto.
It is understood that, subject to the conditions hereinafter stated,
[_________] Firm Shares (the "U.S. Firm Shares") will be sold to the several
U.S. Underwriters named in Schedule II hereto (the "U.S. Underwriters") in
connection with the offering and sale of such U.S. Firm Shares in the United
States and Canada to United States and Canadian Persons (as such terms are
defined in the Agreement Between U.S. and International Underwriters of even
date herewith), and [________] Firm Shares (the "International Shares") will be
sold to the several International Underwriters named in Schedule III hereto (the
"International Underwriters") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇
▇▇▇▇▇▇▇"), BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., BT Alex. ▇▇▇▇▇ Incorporated and
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation shall act as representatives
(the "U.S. Representatives") of the several U.S. Underwriters, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. International Limited, BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International
Limited, BT Alex. ▇▇▇▇▇ International, a division of Bankers Trust International
PLC, and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International shall act as
representatives (the "International Representatives") of the several
International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the "Underwriters."
The Selling Stockholders also propose to sell to the several U.S.
Underwriters not more than an additional [675,000] shares of the Company's
common stock, par value $.01 per share (the "Additional Shares"), if and to the
extent that the U.S. Representatives shall have determined to exercise, on
behalf of the U.S. Underwriters, the right to purchase such shares of common
stock granted to the U.S. Underwriters in Section 3 hereof, with each Selling
Stockholder selling not more than the number of Additional Shares set forth
opposite such Selling Stockholder's name in Schedules IA and IB hereto. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the "Shares." The shares of common stock, par value $.01 per share, of the
Company are hereinafter referred to as the "Common Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "Prospectus." All
references to the Registration Statement or the Prospectus include documents
incorporated therein by reference. If the Company has filed an abbreviated
statement to register additional shares of Common Stock pursuant to Rule 462(b)
under the Securities Act (the "Rule 462 Registration Statement"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act. The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of
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a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder, (iii) each document, if any, filed or to be filed
pursuant to the Securities and Exchange Act of 1934, as amended (the
"Exchange Act") and incorporated by reference into the Prospectus
complied with or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(d) Each "significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X) of the Company, including but not limited to the
subsidiaries listed on Schedule IV to this Agreement (each a "Significant
Subsidiary" and, collectively, the "Significant Subsidiaries"), has been
duly incorporated or organized, is validly existing as a corporation or
partnership, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation or organization, has the corporate or
partnership power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each Significant Subsidiary which is a corporation have been duly
and validly authorized and issued, are fully paid and non-assessable, all
of the partnership interests of each Significant Subsidiary which is a
partnership have been duly and validly authorized and issued, and all of
the shares of capital stock or partnership interests in any Significant
Subsidiary are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims, except as described in or
contemplated by the Prospectus.
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(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) All the outstanding shares of Common Stock (including the Shares
to be sold by the Selling Stockholders) have been (or will be prior to the
Closing Date) duly authorized and are (or will be prior to the Closing
Date) validly issued, fully paid and non-assessable.
(h) The financial statements (together with the related notes
thereto) of the Company included in the Registration Statement present
fairly the financial position of the Company and its subsidiaries as of the
respective dates of such financial statements, and the results of
operations and cash flows of the Company and its subsidiaries for the
respective periods covered thereby, all in conformity with generally
accepted accounting principles consistently applied throughout the periods
involved. The pro forma consolidated financial statements included in the
Prospectus have been prepared in accordance with Article 11 of
Regulation S-X with respect to pro forma financial statements, have been
properly compiled on the pro forma basis described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate under the
circumstances.
(i) Neither the Company nor any of its subsidiaries is in violation
of its certificate of incorporation or certificate of partnership, as the
case may be, or its by-laws or partnership agreement, as the case may be,
or, except as would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, in default in the performance or
observance of any obligation, agreement. covenant or condition contained in
any agreement or other instrument binding upon the Company or any of its
subsidiaries. The conduct of the business of the Company and its
subsidiaries is and has been in compliance with applicable foreign,
federal, state and local laws and regulations, except where the failure to
be in compliance would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(j) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the certificate of incorporation,
by-laws or other organizational documents of the Company or any of the
Significant Subsidiaries, or any agreement or other instrument binding upon
the Company or any of the Significant Subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or the Significant Subsidiaries and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, except such as may be required by
4
the securities or Blue Sky laws of the various states or of any
jurisdiction outside the United States in connection with the offer and
sale of the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(m) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license
and use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(n) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(o) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(p) At the time the Registration Statement became effective, the
Shares were registered under the Exchange Act. The Shares have been
approved for listing on the New York Stock Exchange upon official notice of
issuance.
(q) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety (including
occupational health and safety), the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"),
(ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any
such permit, license or approval, except
5
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(r) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(s) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company (except for the Stockholders
Agreement (as defined in the Prospectus)), and there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to include such securities
with the Shares registered pursuant to the Registration Statement (except
for the Stockholders Agreement and the Doppelt Stockholders Agreement (as
defined in the Prospectus)).
(t) Except as described in the Registration Statement and the
Prospectus, subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (1) the Company and
its subsidiaries have not incurred any liability or obligation or entered
into any transaction not in the ordinary course of business, in each case,
that is material to the Company and its subsidiaries, taken as a whole;
(2) the Company has not purchased any of its outstanding capital stock, or
declared, paid or otherwise made any dividend or distribution of any kind
on its capital stock other than ordinary and customary dividends; and
(3) there has not been any change in the capital stock, short-term debt or
long-term debt of the Company and its subsidiaries, in each case, that is
material to the Company and its subsidiaries, taken as a whole.
(u) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them in each case which is material to the
business of the Company and its subsidiaries, taken as a whole, in each
case free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries, in each
case which is material to the business of the Company and its subsidiaries,
taken as a whole; and any real property and buildings held under lease by
any of the Company or its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material
to the Company and its subsidiaries, taken as a whole, or do not materially
interfere with the use made of
6
such property and buildings by the Company and its subsidiaries, in each
case except as described in or contemplated by the Prospectus.
(v) The Company and its subsidiaries own, possess, have licensed for
use as described in the Registration Statement and the Prospectus, or can
acquire on reasonable terms, all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, in
each case which is material to the business of the Company and its
subsidiaries, taken as a whole, and none of the Company or its subsidiaries
has received any notice of infringement of or conflict with asserted rights
of others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(w) The Company and its subsidiaries have filed all foreign, federal
and state income and franchise tax returns and have paid all taxes shown as
due thereon, in each case which is material to the Company and its
subsidiaries, taken as a whole, and there is no tax deficiency that has
been asserted against the Company or its properties or assets that would
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(x) No labor dispute with the employees of the Company or any of its
subsidiaries exists which is material to the business of the Company and
its subsidiaries, taken as a whole, except as described in or contemplated
by the Prospectus, or, to the knowledge of the Company, is imminent.
(y) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such subsidiary has been refused
any insurance coverage sought or applied for to the extent that such
coverage would be prudent and customary in the business in which it is
engaged; and neither the Company nor any such subsidiary has any reason to
believe that they will not be able to renew their existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue their business at a
cost that would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(z) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that
(1) transactions are executed in accordance with management's general or
specific authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(3) access to assets is permitted only in accordance with management's
general or specific
7
authorization; and (4) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
of the Selling Stockholders represents and warrants to and agrees with each of
the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and
the performance by such Selling Stockholder of its obligations under, this
Agreement and the Power of Attorney and Custody Agreement of such Selling
Stockholder will not contravene any provision of applicable law, or the
certificate of incorporation, bylaws or other organizational documents of
such Selling Stockholder (if such Selling Stockholder is a corporation,
partnership or trust), or any agreement or other instrument binding upon
such Selling Stockholder that is material to such Selling Stockholder or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by such Selling
Stockholder of its obligations under this Agreement or the Power of
Attorney and Custody Agreement of such Selling Stockholder, except such as
may be required by the securities or Blue Sky laws of the various states or
of any jurisdiction outside the United States in connection with the offer
and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date (as defined
below), will have, valid title to the Shares to be sold by such Selling
Stockholder and the legal right and power, and all authorization and
approval required by law, to enter into this Agreement, the Power of
Attorney and Custody Agreement of such Selling Stockholder and to sell,
transfer and deliver the Shares to be sold by such Selling Stockholder.
(d) The Shares to be sold by such Selling Stockholder pursuant to
this Agreement have been or will have been prior to the Closing Date duly
authorized and are validly issued, fully paid and non-assessable.
(e) The Power of Attorney and Custody Agreement of such Selling
Stockholder has been duly authorized, executed and delivered by such
Selling Stockholder (and, if applicable, his/her spouse) and is a valid and
binding agreement of such Selling Stockholder, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally and general principles of
equity.
(f) Delivery of the Shares to be sold by such Selling Stockholder
pursuant to this Agreement will pass title to such Shares to the
Underwriters free and clear of any security interests, claims, liens,
equities and other encumbrances.
8
(g) The information relating to such Selling Stockholder furnished in
writing by or on behalf of such Selling Stockholder expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto is correct and does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading.
3. AGREEMENTS TO SELL AND PURCHASE. Each Selling Stockholder,
severally and not jointly, hereby agrees to sell to the several Underwriters the
number of Firm Shares set forth opposite such Selling Stockholder's name in
Schedules IA and IB hereto, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from such
Selling Stockholder the respective numbers of Firm Shares (subject to such
adjustments to eliminate fractional shares as you may determine) set forth in
Schedules II and III hereto opposite its name at U.S.$[____] a Share (the
"Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Stockholders
agree, severally and not jointly, to sell to the U.S. Underwriters the
Additional Shares, and the U.S. Underwriters shall have a one-time right to
purchase, severally and not jointly, up to [750,000] Additional Shares at the
Purchase Price as set forth on Schedules IA and IB. If the U.S.
Representatives, on behalf of the U.S. Underwriters, elect to exercise such
option, the U.S. Representatives shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the U.S. Underwriters and the
date on which such shares are to be purchased. Such date may be the same as the
Closing Date but not earlier than the Closing Date nor later than ten business
days after the date of such notice. Additional Shares may be purchased as
provided in Section 5 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Shares. If any Additional
Shares are to be purchased, each U.S. Underwriter agrees, severally and not
jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the U.S. Representatives may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of U.S. Firm Shares set forth in Schedule
II hereto opposite the name of such U.S. Underwriter bears to the total number
of U.S. Firm Shares.
The Company, each Selling Stockholder and certain other directors,
officers and employees of the Company have agreed that, without the prior
written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, they will not,
during the period ending 6 months after the Closing Date (in the case of the
Company), the period ending 12 months after the Closing Date (in the case of the
Selling Stockholders named in Schedule IA hereto and the persons named in
Schedule V hereto) and the period ending 120 days after the Closing Date (in the
case of the Selling Stockholders named in Schedule IB hereto and the persons
named in Schedule VI hereto), (i) offer, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (ii) enter into any swap
or other arrangement
9
that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such 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 sale of the Shares to the Underwriters hereunder,
(B) the issuance by the Company of shares of Common Stock upon the exercise
of an option or a warrant or the conversion of a security outstanding on the
date of the Prospectus of which the Underwriters have been advised in
writing, (C) stock or stock option issuances by the Company pursuant to
existing employee benefit plans, (D) the bona fide pledge of shares of Common
Stock by a Selling Stockholder to secure loans extended to such Selling
Stockholder; (E) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
Offering (as defined in the Prospectus); (F) the contribution of Common Stock
to an exchange fund, capital fund or similar fund in exchange for securities
of such fund; (G) the issuance, grant or sale by the Company or any
subsidiary thereof of shares of Common Stock (or any option, right, warrant
or other interest in shares of Common Stock) to any person as consideration
for any acquisition or as an inducement to be employed by or to not compete
with the Company or any subsidiary thereof; (H) any charitable gift/donation
of shares of Common Stock; or (I) the transfer of shares of Common Stock to
the following: (i) if the Selling Stockholder is an individual, a member of
the immediately family of the Selling Stockholder, if any, or a trust whose
sole beneficiaries are members of the immediate family of the Selling
Stockholder, or a partnership whose sole partners are members of the
immediate family of the Selling Stockholder; and (ii) if the Selling
Stockholder is a trust, any member of the immediate family of the Selling
Stockholder that is the grantor or trustee of the trust; PROVIDED, however,
that the Selling Stockholder shall first require any transferee described in
clause (I)(i) or (I)(ii) to execute a similar "lock-up" agreement prior to
such permitted pledge or transfer.
4. TERMS OF PUBLIC OFFERING. The Company and the Selling
Stockholders are advised by you that the Underwriters propose to make a public
offering of their respective portions of the Shares as soon after the
Registration Statement and this Agreement have become effective as in your
judgment is advisable. The Company and the Selling Stockholders are further
advised by you that the Shares are to be offered to the public initially at
U.S.$[_____] a share (the "Public Offering Price") and to certain dealers
selected by you at a price that represents a concession not in excess of
U.S.$[_____] a share under the Public Offering Price, and that any Underwriter
may allow, and such dealers may reallow, a concession, not in excess of
U.S.$[____] a share, to any Underwriter or to certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Firm Shares shall be made
by wire transfer of immediately available funds to an account designated by
▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services L.L.C. as the custodian (the "Custodian")
pursuant to the Irrevocable Powers of Attorney and Custody Agreements between
the Custodian and the Selling Stockholders (collectively, the "Power of Attorney
and Custody Agreements") (and in such capacity acting for the benefit of the
Selling Stockholders) against delivery of such Firm Shares for the respective
accounts of the several Underwriters at 10:00 A.M., New York City time, on
[____________], 1999, or at such other time on the same or such other date, not
later than [____________], 1999, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "Closing
Date."
10
Payment for any Additional Shares shall be made to the Custodian (for
the benefit of the Selling Stockholders) by wire transfer of immediately
available funds to an account designated by the Custodian against delivery of
such Additional Shares for the respective accounts of the several Underwriters
at [__________], New York City time, on the date specified in the notice
described in Section 3 or at such other time on the same or on such other date,
in any event not later than [____________], 1999, as shall be designated in
writing by the U.S. Representatives. The time and date of such payment are
hereinafter referred to as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. CONDITIONS TO OBLIGATIONS. The several obligations of the
Selling Stockholders to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than 5:30 p.m. (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
11
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed on behalf of the Company by
an executive officer of the Company, (i) to the effect that the
representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has
complied with all of the agreements and satisfied all of the conditions on
their part to be performed or satisfied hereunder on or before the Closing
Date and (ii) setting forth all jurisdictions in which the conduct of the
Company's business or its ownership or leasing of property requires that
the Company or its subsidiaries be qualified to transact business, except
to the extent that the failure to be so qualified would not have a material
adverse effect on the Company, or its subsidiaries, taken as a whole.
(c) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., dated the Closing Date, in the form
attached hereto as Exhibit A.
(d) The Underwriters shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel for the Underwriters, dated the
Closing Date, in form and substance satisfactory to you.
(e) The Underwriters shall have received, on each of the date hereof
and the Closing Date, letters dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to the Underwriters,
from Ernst & Young, independent public accountants with respect to the
Company and its subsidiaries, 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, or incorporated by reference into, the Registration Statement
and the Prospectus; PROVIDED that the letters delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(f) The "lock-up" agreements between you and each of the Selling
Stockholders, the Company and the persons named in Schedules V and VI
hereto, each substantially in the form of Exhibit B hereto, relating to
sales and certain other dispositions of shares of Common Stock or certain
other securities, shall be in full force and effect on the Closing Date.
(g) The representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct as of the Closing
Date and each Selling Stockholder shall have complied with all of the
agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date. The Underwriters
shall have received on the Closing Date certificates dated the Closing Date
and signed by the Selling Stockholders or by their attorneys-in-fact to the
effect set forth above.
(h) The Underwriters shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
12
(i) The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company and
other matters related to the sale of the Additional Shares.
7. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, eight (8) signed copies of the
Registration Statement (including exhibits thereto and documents
incorporated by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto but
including documents incorporated by reference) and to furnish to you in New
York City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated by reference, and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
The terms "supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Exchange Act, that are deemed to be incorporated
by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will furnish
to the Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
13
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earnings statement covering the
twelve-month period ending December 31, 2000 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
8. EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of the
Company's and the Selling Stockholders' obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's and
Selling Stockholders' counsel and the Company's accountants in connection with
the registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the NASD, (v)
all fees and expenses incident to listing the Shares on the New York Stock
Exchange, (vi) the cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar, depositary or custodian,
(viii) the costs and expenses of the Company relating to investor presentations
on any "road show" undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show (less the
estimated cost of first-class air fare for representatives of the Underwriters
traveling on trips for which chartered aircraft were used), (ix) all expenses in
connection with any offer and sale of the Shares outside of the United States,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with offers and sales outside of the United
States and (x) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. It is understood, however, that except as provided in this
Section, Section 9 entitled "Indemnity and Contribution" and the last paragraph
of Section 11 below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes payable
on resale of any of the Shares by them and any advertising expenses connected
with any offers they may make.
14
9. INDEMNITY AND CONTRIBUTION. (a)(1) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein; and (2) each Selling Stockholder agrees, severally
and not jointly, to indemnify and hold harmless each other Selling Stockholder,
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to information relating to such Selling Stockholder furnished in
writing by or on behalf of such Selling Stockholder expressly for use therein;
PROVIDED, HOWEVER, that the foregoing indemnity agreements with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities, unless
such failure is the result of noncompliance by the Company or the Selling
Stockholders with Section 7(a) hereof. Notwithstanding the provisions of this
Section 9(a), the aggregate indemnification of each Selling Stockholder under
this Section 9(a) will not exceed the proceeds received by such Selling
Stockholder from the Shares sold by it.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Selling Stockholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Stockholder within
the meaning of either Section 15 of the Securities Act or Section
15
20 of the Exchange Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 9(a) or 9(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Selling Stockholders and all persons, if any, who control
any Selling Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In
the case of any such separate firm for the Company, and such directors, officers
and control persons of the Company, such firm shall be designated in writing by
the Company. In the case of any such separate firm for the Selling Stockholders
and such control persons of any Selling Stockholder, such firm shall be
designated in writing by the persons named as attorneys-in-fact for the Selling
Stockholders under the Power of Attorney and Custody Agreements. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such
16
settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 9(a) or
9(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 9(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 9(d)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by each
Selling Stockholder and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. Notwithstanding the provisions of this Section 9(d), the aggregate
contribution of each Selling Stockholder under this Section 9(d) will not exceed
the proceeds received by such Selling Stockholder from the Shares sold by it and
such Selling Stockholder shall not be required to contribute under this Section
9(d) in respect of any costs, expenses, losses, damages or other liabilities
unless the same arise with reference to any information furnished to the Company
in writing by, or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto. The relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and the
Selling Stockholders or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective
17
obligations to contribute pursuant to this Section 9 are several in
proportion to the respective number of Shares they have purchased hereunder,
and not joint.
(e) The Company, the Selling Stockholders and the Underwriters agree
that it would not be just or equitable if contribution pursuant to this Section
9 were determined by PRO RATA allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in Section 9(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 9 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Stockholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter, any Selling Stockholder or any person
controlling any Selling Stockholder, or the Company, its respective officers or
directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Shares.
10. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc. or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
11. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
18
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase
Shares that it has or they have agreed to purchase hereunder on such date,
and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate number of the Shares to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that
the number of Firm Shares set forth opposite their respective names in
Schedule II or Schedule III bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; PROVIDED that in no event shall the number of Shares
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If,
on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of
Firm Shares to be purchased, and arrangements satisfactory to you, the
Company and the Selling Stockholders for the purchase of such Firm Shares are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company
or the Selling Stockholders. In any such case either you or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional
Shares and the aggregate number of Additional Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased, the non-defaulting Underwriters shall have
the option to (i) terminate their obligation hereunder to purchase Additional
Shares or (ii) purchase not less than the number of Additional Shares that
such non-defaulting Underwriters would have been obligated to purchase in the
absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company or any
Selling Stockholder to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company or any Selling
Stockholder shall be unable to perform its obligations under this Agreement,
the Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
19
13. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇ COMPANY
By:
---------------------------------
Name:
Title:
The Selling Stockholders named in
Schedules IA and IB hereto, acting
severally
By:
---------------------------------
Attorney-in-fact
20
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Acting severally on behalf
of themselves and the
several U.S. Underwriters
named in Schedule II hereto.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By
------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International Limited
BT Alex. ▇▇▇▇▇ International, a division of Bankers Trust International PLC
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
Acting severally on behalf
of themselves and the
several International Underwriters
named in Schedule III hereto.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
By
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Name:
Title:
21
SCHEDULE IA
SELLING STOCKHOLDERS
Number of Number of
Firm Shares Additional Shares
Name Selling Stockholder to be sold to be sold (1)
------------------------ ------------ -----------------
-----------------
(1) If the U.S. Underwriters purchase less than 675,000 Additional Shares the
individual allocations set forth in this column will be reduced as mutually
agreed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Attorneys-in-Fact under the Power of Attorney
and Custody Agreements.
SCHEDULE IB
SELLING STOCKHOLDERS
Number of Number of
Firm Shares Additional Shares
Name Selling Stockholder to be sold to be sold (2)
------------------------ ----------- -----------------
-----------------
(2) If the U.S. Underwriters purchase less than 675,000 Additional Shares the
individual allocations set forth in this column will be reduced as mutually
agreed by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Attorneys-in-Fact under the Power of Attorney
and Custody Agreements.
SCHEDULE II
U.S. UNDERWRITERS
Number of
Firm Shares
Underwriter to be Purchased
----------- ----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Total U.S. Firm Shares
---------
---------
SCHEDULE III
INTERNATIONAL UNDERWRITERS
Number of
Firm Shares
Underwriter to be Purchased
----------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
International Limited
BT Alex. ▇▇▇▇▇ International, a division of
Bankers Trust International PLC
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ International
---------
Total International Firm Shares
---------
---------
SCHEDULE IV
IDENTIFIED SIGNIFICANT SUBSIDIARIES OF THE COMPANY
▇▇▇▇▇▇▇▇ ▇▇▇▇ Corporate Services
▇▇▇▇▇▇▇▇ ▇▇▇▇ Operations Inc.
▇▇▇▇▇▇▇▇ ▇▇▇▇ SE Inc.
SCHEDULE V
NAME
----
SCHEDULE VI
NAME
----
Exhibit A
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[FORM OF V&E OPINION]
Exhibit B
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[FORM OF LOCK-UP LETTER]