1
EXHIBIT 1.2
EXULT, INC.
(a Delaware corporation)
1,500,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: July ___, 2001
==============================================================================
2
TABLE OF CONTENTS
PAGE
SECTION 1. Representations and Warranties...................................................3
(a) Representations and Warranties by the Company..................................3
(i) Compliance with Registration Requirements..............................3
(ii) Incorporated Documents.................................................4
(iii) Independent Accountants................................................5
(iv) Financial Statements...................................................5
(v) No Material Adverse Change in Business.................................5
(vi) Good Standing of the Company...........................................5
(vii) Good Standing of Subsidiaries..........................................5
(viii) Capitalization.........................................................6
(ix) Authorization of Agreement.............................................6
(x) Authorization and Description of Securities............................6
(xi) Securities Subject to Stock Options....................................6
(xii) Absence of Defaults and Conflicts......................................7
(xiii) Absence of Labor Dispute...............................................7
(xiv) Absence of Proceedings.................................................7
(xv) Accuracy of Exhibits...................................................8
(xvi) Possession of Intellectual Property....................................8
(xvii) Absence of Further Requirements........................................8
(xviii) Possession of Licenses and Permits.....................................8
(xix) Title to Property......................................................9
(xx) Compliance with Cuba Act...............................................9
(xxi) Investment Company Act.................................................9
(xxii) Environmental Laws.....................................................9
(xxiii) Registration Rights ..................................................10
(b) Representations and Warranties of the Selling Shareholders....................10
(i) Accurate Disclosure...................................................10
(ii) Authorization of Agreements...........................................10
(iii) Payment for Securities Subject to Option; Title to Securities.........12
(iv) Due Execution of Power of Attorney and Custody Agreement..............12
(v) Absence of Manipulation...............................................12
(vi) Absence of Further Requirements.......................................12
(vii) Restriction on Sale of Securities.....................................13
(viii) Certificates Suitable for Transfer....................................13
(ix) No Association with NASD..............................................13
(x) Selling Shareholder's Stock Options...................................13
(c) Officer's Certificates........................................................13
SECTION 2. Sale and Delivery to International Managers; Closing............................14
(a) Initial Securities............................................................14
(b) Option Securities.............................................................14
(c) Failure to Deliver Shares.....................................................15
(d) Payment.......................................................................15
i
3
(e) Denominations; Registration..................................................16
SECTION 3. Covenants of the Company.......................................................16
(a) Compliance with Securities Regulations and Commission Requests...............16
(b) Filing of Amendments.........................................................16
(c) Delivery of Registration Statements..........................................16
(d) Delivery of Prospectuses.....................................................17
(e) Continued Compliance with Securities Laws....................................17
(f) Blue Sky Qualifications......................................................17
(g) Rule 158.....................................................................18
(h) Use of Proceeds..............................................................18
(i) Listing......................................................................18
(j) Restriction on Sale of Securities............................................18
(k) Reporting Requirements.......................................................18
SECTION 4. Payment of Expenses............................................................18
(a) Expenses.....................................................................18
(b) Expenses of the Selling Shareholders.........................................19
(c) Termination of Agreement.....................................................19
(d) Allocation of Expenses.......................................................19
SECTION 5. Conditions of International Managers' Obligations..............................19
(a) Effectiveness of Registration Statement......................................19
(b) Opinion of Counsel for Company...............................................20
(c) Opinion of Counsel for the Selling Shareholders..............................20
(d) Opinion of General Counsel for Company.......................................20
(e) Opinion of Counsel for International Managers................................21
(f) Officers' Certificate........................................................21
(g) Certificate of Selling Shareholder...........................................21
(h) Accountant's Comfort Letters.................................................21
(i) Bring-down Comfort Letter....................................................22
(j) Approval of Listing..........................................................22
(k) No Objection.................................................................22
(l) Lock-up Agreements...........................................................22
(m) Purchase of Initial U.S. Securities..........................................22
(n) Deposit of Options under Custody Agreements..................................22
(o) Conditions to Purchase of International Option Securities....................22
(i) Officers' Certificate.................................................22
(ii) Certificate of Selling Shareholders...................................23
(iii) Opinion of Counsel for Company........................................23
(iv) Opinion of Counsel for the Selling Shareholders.......................23
(v) Opinion of General Counsel for Company................................23
(vi) Opinion of Counsel for International Managers.........................23
(vii) Bring-down Comfort Letter.............................................23
(p) Additional Documents.........................................................23
(q) Termination of Agreement.....................................................23
ii
4
SECTION 6. Indemnification................................................................24
(a) Indemnification of International Managers by the Company and Management
Selling Shareholders.........................................................24
(b) Indemnification of International Managers by the Other Selling
Shareholders.................................................................25
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders.................................................................27
(d) Actions against Parties; Notification........................................27
(e) Settlement without Consent if Failure to Reimburse...........................28
(f) Other Agreements with Respect to Indemnification.............................28
SECTION 7. Contribution...................................................................28
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................30
SECTION 9. Termination of Agreement.......................................................30
(a) Termination; General.........................................................30
(b) Liabilities..................................................................30
SECTION 10. Default by One or More of the International Managers..........................31
SECTION 11. Default by One or More of the Selling Shareholders or the Company.............31
SECTION 12. Notices.......................................................................32
SECTION 13. Parties.......................................................................32
SECTION 14. GOVERNING LAW AND TIME........................................................32
SECTION 15. Effect of Headings............................................................33
SCHEDULES
Schedule A - List of International Managers..........................Sch A-1
Schedule B - List of Selling Shareholders............................Sch B-1
Schedule C - Pricing Information.....................................Sch C-1
Schedule D - List of Persons and Entities Subject to Lock-up.........Sch D-1
Schedule 1(b)(ix) Schedule of Exceptions to Section 1(b)(ix)....Sch 1(b)(ix)
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel........................A-1
Exhibit B - Form of Opinion of Counsel for the Selling Shareholders.....B-1
Exhibit C - Form of Opinion of General Counsel to the Company...........C-1
Exhibit D - Form of Lock-up Letter......................................D-1
iii
5
EXULT, INC.
(a Delaware corporation)
1,500,000 Shares of Common Stock
(Par Value $0.0001 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
July ___, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Exult, Inc., a Delaware corporation (the "Company"), the persons listed
in Schedule B hereto under the caption "Management Selling Shareholders" (the
"Management Selling Shareholders") and the persons listed in Schedule B hereto
under the caption "Other Selling Shareholders" (the "Other Selling Shareholders"
and together with the Management Selling Shareholders, the "Selling
Shareholders"), confirm their respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇
International ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and Salomon
Brothers International Limited and each of the other international underwriters
named in Schedule A hereto (collectively, the "International Managers", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and
Salomon Brothers International Limited are acting as representatives (in such
capacity, the "Lead Managers"), with respect to (i) the sale by the Company and
the Selling Shareholders and the purchase by the International Managers, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $0.0001 per share, of the Company ("Common Stock") set forth in
Schedules A and B hereto and (ii) the grant by the Company and certain of the
Selling Shareholders to the International Managers, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of 225,000 additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 1,500,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the 225,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities".
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Company and the Selling
Shareholders of an aggregate of 8,500,000 shares of Common Stock (the "Initial
U.S. Securities") through arrangements with certain underwriters in
6
the United States and Canada (the "U.S. Underwriters") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Smith, Goldman, Sachs & Co. and ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Inc. are acting as representatives (the "U.S. Representatives")
and the grant by the Company and certain of the Selling Shareholders to the U.S.
Underwriters, acting severally and not jointly, of an option to purchase all or
any part of the U.S. Underwriters' pro rata portion of up to 1,275,000
additional shares of Common Stock solely to cover overallotments, if any (the
"U.S. Option Securities" and, together with the International Option Securities,
the "Option Securities"). The Initial U.S. Securities and the U.S. Option
Securities are hereinafter called the "U.S. Securities". It is understood that
the Company is not obligated to sell and the International Managers are not
obligated to purchase, any Initial International Securities unless all of the
Initial U.S. Securities are contemporaneously purchased by the U.S.
Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", and the International Securities, and
the U.S. 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
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-64116) 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 International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of U.S. Prospectus is identical to the Form of
International Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The information included in
such prospectus or in 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 International Prospectus and Form of U.S. 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
2
7
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
International Prospectus and the final Form of U.S. 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
"International Prospectus" and the "U.S. Prospectus," respectively, and
collectively the "Prospectuses." If Rule 434 is relied on, the terms
"International Prospectus" and "U.S. Prospectus" shall refer to the preliminary
International Prospectus dated July 12, 2001 and the preliminary U.S. Prospectus
dated July 12, 2001, respectively, each together with the applicable Term Sheet
and all references in this Agreement to the date of the Prospectuses shall mean
the date of the Term Sheet. For purposes of this Agreement, all references to
the Registration Statement, any preliminary prospectus, the International
Prospectus, the U.S. Prospectus or any Term Sheet or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
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 and including the Form of
International Prospectus and Form of U.S. 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 International Prospectus and the Form of U.S. 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 (including the Form of International Prospectus and the Form of U.S.
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.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(d) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) Compliance with Registration Requirements. 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
3
8
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.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any International
Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and 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, in light of the
circumstances under which they were made, not misleading. Neither the
Prospectuses nor any amendments or supplements thereto, at the time the
Prospectuses or any such amendment or supplement was issued and at the
Closing Time (and, if any International Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through the Lead Managers expressly for use in the Registration
Statement or International Prospectus.
Each preliminary prospectus and the prospectuses 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 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the International Managers for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(ii) Incorporated Documents. 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 was issued and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of 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.
4
9
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) Financial Statements. The financial statements included in
the Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified (subject, in the case of
unaudited financial statements, to ordinary year-end adjustments); said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules included in the Registration
Statement present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the Registration
Statement and the Prospectuses present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(v) No Material Adverse Change in Business. Since December 31,
2000, except as otherwise stated in the Registration Statement or the
Prospectuses, (A) there has been no material adverse change, or any development
involving a prospective 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 (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other 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.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of Regulation
S-X) and Exult Limited and Exult Equity Partners, Inc. (each a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly organized and is validly
existing as a corporation in good standing under the laws of the
5
10
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 such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and 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 Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary. The only subsidiaries
of the Company are the subsidiaries listed on Exhibit 21.1 to the Company's
registration statement on Form S-1 (No. 333-31754).
(viii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to the U.S. Purchase
Agreement, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectuses or pursuant to the exercise of convertible
securities or options referred to in the Prospectuses). The shares of issued and
outstanding capital stock of the Company, including the outstanding Securities
to be purchased by the Underwriters from the Selling Shareholders, have been
duly authorized and validly issued and are fully paid and non-assessable; none
of the outstanding shares of capital stock of the Company, including the
Securities to be purchased by the Underwriters from the Selling Shareholders,
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement has been duly authorized, executed and delivered by the
Company.
(x) Authorization and Description of Securities. The Securities
to be purchased by the Underwriters from the Company have been duly authorized
for issuance and sale to the International Managers pursuant to this Agreement
and the U.S. Underwriters pursuant to the U.S. Purchase Agreement respectively
and, when issued and delivered by the Company pursuant to this Agreement and the
U.S. Purchase Agreement, respectively, against payment of the consideration set
forth herein and therein, will be validly issued, fully paid and non-assessable;
the Common Stock conforms in all material respects with all statements relating
thereto contained in the Prospectuses and such description conforms in all
material respects with the rights set forth in the instruments defining the
same; no holder of the Securities will be subject to personal liability by
reason of being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the Company.
(xi) Securities Subject to Stock Options. The employee stock
options exercised by certain Selling Shareholders in connection with the
transactions contemplated by the Custody Agreement (as defined below), the Power
of Attorney (as defined below), this Agreement and the U.S. Purchase Agreement
(the "Stock Options") were granted to such Selling Shareholder, were fully
vested and could be exercised by such Selling Shareholder in accordance with the
1999 Stock Option/Stock Incentive Plan, the 1999 Special Executive Stock Option
Plan
6
11
or the 2000 Equity Incentive Plan under which they were issued (each, a
"Plan") at the time such Stock Options were exercised; and, prior to the Closing
Time (as defined below), the Company will issue certificates in negotiable form
representing the number of Securities that, when taken together with Securities
represented by certificates deposited with the custodian under the Custody
Agreement of such Selling Shareholder, will be sufficient to allow the Selling
Shareholder to satisfy its obligations under this Agreement and the U.S.
Purchase Agreement at the Closing Time and such Securities will not be subject
to any right of repurchase or other similar right in favor of the Company.
(xii) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or By-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments"), except for
such violations or defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement and the U.S.
Purchase Agreement and the consummation of the transactions contemplated herein
and therein and in the Registration Statement (including the issuance and sale
of the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectuses under the caption "Use of Proceeds") and
compliance by the Company with its obligations hereunder and thereunder have
been duly authorized by all necessary corporate action 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 or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches, defaults, liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of (i) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their assets, properties or operations
(excluding the state and foreign securities laws or the rules and regulations of
the National Association of Securities Dealers, Inc. (the "NASD")), except for
violations that would not have a Material Adverse Effect or (ii) the charter or
By-laws of the Company or any subsidiary. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any subsidiary.
(xiii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiv) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or
7
12
foreign, now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to be disclosed in
the Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties or
assets thereof or the consummation of the transactions contemplated in this
Agreement or the U.S. Purchase Agreement or the performance by the Company of
its obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party or of
which any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xv) Accuracy of Exhibits. 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.
(xvi) Possession of Intellectual Property. To the best of the
Company's knowledge, as of the Effective Date and the Closing Date, the Company
and its subsidiaries own or possess, or can acquire on reasonable terms,
adequate 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,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property of the Company or of any facts or
circumstances which would render any Intellectual Property of the Company
invalid or inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse Effect.
(xvii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder or
under the U.S. Purchase Agreement, in connection with the offering, issuance or
sale of the Securities hereunder or thereunder or the consummation of the
transactions contemplated by this Agreement or the U.S. Purchase Agreement,
except (i) such as have been already obtained as or may be required under
federal, state or foreign securities laws, and (ii) such as may be required
under the rules and regulations of the NASD.
(xviii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them and the Company and its subsidiaries
are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to possess or comply would not, singly or
in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and
8
13
effect, except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xix) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Prospectuses or (b) do not, singly or in the aggregate, 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 or any of its subsidiaries; and all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Prospectuses, are in full
force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises under
any such lease or sublease.
(xx) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act"), or is exempt therefrom.
(xxi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as contemplated herein and in the U.S.
Purchase Agreement and the application of the net proceeds therefrom as
described in the Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) to the best of the Company's knowledge,
neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in
compliance
9
14
with their requirements, (C) there are no pending or, to the knowledge of the
Company, threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) the Company is not aware after due
inquiry of any events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(xxiii) Registration Rights. The Company is in material
compliance with the terms and conditions of that certain Amended and Restated
Registration Rights Agreement among the Company and certain of its stockholders
identified therein, dated December 23, 1999, as amended by that certain
Amendment No. 1 to Amended and Restated Registration Rights Agreement. Except as
set forth in the Prospectuses under the caption "Selling Shareholders", there
are no other persons with registration rights or other similar rights to have
any securities registered pursuant to the Registration Statement which have not
been waived.
(b) Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder severally, and not jointly, represents and warrants to each
International Manager as of the date hereof, as of the Closing Time, and, if the
Selling Shareholder is selling International Option Securities on a Date of
Delivery, as of each such Date of Delivery, and agrees with each Underwriter, as
follows:
(i) Accurate Disclosure.
(A) If such Selling Shareholder is a Management Selling
Shareholder, to the knowledge of such Management Selling Shareholder,
the representations and warranties of the Company contained in Section
1(a) hereof are true and correct; such Management Selling Shareholder
has reviewed and is familiar with the Registration Statement and the
Prospectuses and neither the Prospectuses nor any amendments or
supplements thereto includes any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; such Management Selling Shareholder is not prompted to
sell the Securities to be sold by such Management Selling Shareholder
hereunder or under the U.S. Purchase Agreement by any material
information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(B) If such Selling Shareholder is an Other Selling
Shareholder, neither the Prospectuses nor any amendments or supplements
thereto includes any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein
(in so far as they have been included in the Prospectuses in reliance
upon and in conformity with written information furnished to the Company
by such Other Selling Shareholder expressly for use therein), in the
light of the circumstances under which they were made, not misleading.
(ii) Authorization of Agreements.
10
15
(A) Each Selling Shareholder has the full right, power
and authority to enter into this Agreement, the U.S. Purchase Agreement,
a Power of Attorney between such Selling Shareholder and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, V and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ acting singly or together, as
attorney(s)-in-fact (the "Attorney(s)-in-Fact") (a "Power of Attorney")
and a Custody Agreement between such Selling Shareholder and U.S. Stock
Transfer Corporation as custodian (the "Custody Agreement") and to sell,
transfer and deliver the Securities to be sold by such Selling
Shareholder hereunder and thereunder.
(B) The execution and delivery of this Agreement, the
U.S. Purchase Agreement, the Power of Attorney and the Custody
Agreement, the consummation of the transactions by such Selling
Shareholder contemplated herein and therein, the compliance by such
Selling Shareholder with its obligations hereunder and thereunder and
the sale and delivery of the Securities to be sold by such Selling
Shareholder hereunder and thereunder have been duly authorized by such
Selling Shareholder and do not and will not, whether with or without the
giving of notice or passage of time or both (i) conflict with or
constitute a breach of, or default under, (ii) give rise to any right of
termination, cancellation or acceleration of any right or obligation of
the Selling Shareholder or loss of any benefit to which the Selling
Shareholder is entitled under, or (iii) 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, except, in
each case, as will not have or is not reasonably expected to have a
material adverse effect on such Selling Shareholder.
(C) The execution and delivery of this Agreement, the
U.S. Purchase Agreement, the Power of Attorney and the Custody
Agreement, the consummation of the transactions by such Selling
Shareholder contemplated herein and therein, the compliance by such
Selling Shareholder with its obligations hereunder and thereunder and
the sale and delivery of the Securities to be sold by such Selling
Shareholder hereunder and thereunder do not and will not, whether with
or without the giving of notice or passage of time or both, result in
any violation of the provisions of the charter or By-laws or other
organizational instrument of such Selling Shareholder, if applicable, 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 (excluding federal, state and foreign
securities laws and the rules and regulations of the NASD and the
Nasdaq), except for violations that will not have or is not reasonably
expected to have a material adverse effect on such Selling Shareholder.
(D) The Power of Attorney and the Custody Agreement of
each Selling Shareholder is a valid and binding agreement of such
Selling Shareholder, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency,
11
16
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general principals of equity.
(iii) Payment for Securities Subject to Option; Title to
Securities. If the Securities to be delivered by the Selling Shareholder were
issued upon the exercise of outstanding options therefor pursuant to the Custody
Agreement, the aggregate exercise price of such options will have been paid to
the Company in full as of the Closing Time or the Date of Delivery with respect
to which such Securities are to be sold. Such Selling Shareholder has and will
at the Closing Time and, if any International Option Securities are purchased,
on the Date of Delivery have title to the International Securities to be sold by
such Selling Shareholder hereunder, free and clear of any adverse claim (within
the meaning of the New York Uniform Commercial Code), other than pursuant to
this Agreement, the U.S. Purchase Agreement or the Custody Agreement to which
such Selling Shareholder is a party; and upon delivery of such Securities and
payment of the purchase price therefor as herein contemplated, assuming each
such International Manager is otherwise a bona fide purchaser and has no notice
of any adverse claim (within the meaning of the New York Uniform Commercial
Code), each of the International Managers will receive title to the Securities
purchased by it from such Selling Shareholder, free and clear of any adverse
claim (within the meaning of the New York Uniform Commercial Code).
(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 Lead Managers, the Power of Attorney and the Custody Agreement;
the custodian under such Custody Agreement is authorized to deliver the
International Securities to be sold by such Selling Shareholder hereunder and to
accept payment therefor on behalf of such Selling Shareholder; and each
Attorney-in-Fact is authorized to execute and deliver this Agreement, the U.S.
Purchase Agreement, the certificate referred to in Section 5(g) or that may be
required pursuant to Section(s) 5(o)(ii) and 5(p) on behalf of such Selling
Shareholder, to sell, assign and transfer to the International Managers the
International Securities to be sold by such Selling Shareholder hereunder, to
exercise on such Selling Shareholder's behalf the relevant Stock Options, as
applicable, to determine the purchase price to be paid by the International
Managers to such Selling Shareholder, as provided in Section 2(a) hereof, to
authorize the delivery of the International Securities to be sold by such
Selling Shareholder hereunder and under the U.S. Purchase Agreement, to accept
payment therefor, and otherwise to act on behalf of such Selling Shareholder in
connection with this Agreement and the U.S. Purchase Agreement in accordance
with the Power of Attorney of such Selling Shareholder.
(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 to facilitate the sale or resale of the Securities.
(vi) Absence of Further Requirements. The execution, delivery
and performance of this Agreement, the U.S. Purchase Agreement, the Power of
Attorney and the Custody Agreement by such Selling Shareholder and the sale and
delivery of the Securities to be sold and delivered by such Selling Shareholder
under this Agreement and the U.S. Purchase Agreement does not require any
action, consent, order, qualification, decree, approval by or in
12
17
respect of, or filing or registration with (A) any governmental authority or
agency, domestic or foreign, except such as have been already obtained and
except (i) as or may be required under federal, state or foreign securities
laws, and (ii) such as may be required under the rules and regulations of the
NASD or Nasdaq, and (B) any individual, corporation, partnership, association,
trust or other entity or organization, except for those actions, consents,
orders, qualifications with, decrees, approvals, filings or registrations, the
failure of which to be obtained or made would not have a material adverse effect
on such Selling Shareholder.
(vii) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectuses, such Selling Shareholder will comply
with the terms of the lock-up agreement, a form of which is attached hereto as
Exhibit D, unless such Selling Shareholder has received the prior written
consent of the Global Coordinator.
(viii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by such Selling Shareholder pursuant to this
Agreement and the U.S. Purchase Agreement, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or assignment
in blank with signatures guaranteed, have been placed in custody with the
Custodian with irrevocable conditional instructions to deliver such Securities
to the International Managers pursuant to this Agreement and to the U.S.
Representatives pursuant to the U.S. Purchase Agreement.
(ix) No Association with NASD. Other than as set forth on
Schedule 1(b)(ix), neither such Selling Shareholder nor any of his or its
affiliates directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with any member firm of the
National Association of Securities Dealers, Inc., or is a "person associated
with a member" or an "associated person of a member" (as such terms are defined
in Article I of the By-laws of the NASD).
(x) Selling Shareholder's Stock Options. Any Stock Options
exercised by or on behalf of such Selling Shareholder in connection with the
transactions contemplated by the relevant Custody Agreement, the relevant Power
of Attorney, this Agreement and the U.S. Purchase Agreement had been granted to
such Selling Shareholder, at the time of exercise were fully vested and were
exercised by such Selling Shareholder in accordance with the Plan under which
they were issued. The Company is obligated to issue, at or prior to the Closing
Time, certificates in negotiable form representing the number of Securities
issued upon the exercise of the Selling Shareholder's exercised Stock Options
and such Securities are not subject to any right of repurchase or other similar
right in favor of the Company. Such Selling Shareholder has deposited
certificates representing a sufficient number of Securities and/or exercised
Stock Options pursuant to an irrevocable notice of exercise deposited with the
custodian under such Selling Shareholder's Custody Agreement that, when taken
together, will allow such Selling Shareholder to fulfill his or its obligations
under this Agreement and the U.S. Purchase Agreement.
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby; and any certificate signed by or on
13
18
behalf of the Selling Shareholders as such and delivered to the Global
Coordinator, the Lead Managers or to counsel for the International Managers
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by such Selling Shareholder to the International Managers as to the
matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; 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 International Manager, severally and not jointly, and each
International Manager, 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 International 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 International
Securities set forth in Schedule A opposite the name of such International
Manager, plus any additional number of Initial International Securities which
such International Manager may become obligated to purchase pursuant to the
provisions of Section 10 hereof, bears to the total number of Initial
International Securities, subject, in each case, to such adjustments among the
International Managers as the Lead Managers in their 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 the Selling Shareholders, acting severally and not
jointly, hereby grant an option to the International Managers, severally and not
jointly, to purchase up to an additional 225,000 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 International Securities but not payable on the
International 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 International Securities upon
notice by the Global Coordinator to the Company and the Selling Shareholders
setting forth the number of International Option Securities as to which the
several International Managers are then exercising the option and the time and
date of payment and delivery for such International Option Securities. Any such
time and date of delivery for International Option Securities (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven 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 International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule A opposite the name of such International Manager bears to the total
number of Initial International 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. The option granted hereby shall be,
to the extent exercised, exercised by the Lead Managers first for the purchase
of Option Securities to be sold by the Company set forth on Schedule B, if any,
until all such shares have
14
19
been so sold and shall thereafter be exercised by the Lead Managers for the
purchase of Option Securities to be sold by the Selling Shareholders, as set
forth on Schedule B.
(c) Failure to Deliver Shares. If a Selling Shareholder shall fail at
Closing Time or at a Date of Delivery, as the case may be, to sell and deliver
the number of International Securities which such Selling Shareholder or Selling
Shareholders are obligated to sell hereunder, and the remaining Selling
Shareholders do not exercise their right to increase, pro rata or otherwise, the
number of International 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,
the Company agrees that it will sell and deliver or arrange for the sale and
delivery of a number of shares of Common Stock to the International Managers
that is equal to the International Securities that such Selling Shareholder or
Selling Shareholders have failed to so sell and deliver, or such lesser number
of shares of Common Stock as may be requested by the Lead Managers and such
shares of Common Stock shall be deemed to constitute Initial International
Securities or International Option Securities, as the case may be.
(d) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial International Securities shall be made at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Global
Coordinator and the Company, at 7:00 A.M. (California 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 and the
Company (such time and date of payment and delivery being herein called "Closing
Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Selling Shareholders,
on each Date of Delivery as specified in the notice from the Global Coordinator
to 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 Lead
Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager 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 International Manager from its obligations
hereunder.
15
20
(e) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers in the city
of New York not later than 10:00 A.M. (Eastern 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
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), 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
International Managers shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or,
if requested, will deliver to the Lead Managers and counsel for the
International Managers, 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 Lead
Managers, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of
the International Managers. The copies of the Registration
16
21
Statement and each amendment thereto furnished to the International Managers
will be identical to the electronically transmitted 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
International Manager, without charge, as many copies of each preliminary
prospectus and final prospectus as such International Manager 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
International Manager, without charge, during the period when the International
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the International Prospectus (as amended or supplemented) as
such International Manager may reasonably request. The International Prospectus
and any amendments or supplements thereto furnished to the International
Managers 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, the 1933 Act Regulations, 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 U.S. 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, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any 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 Prospectuses 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 International Managers such number of copies of such
amendment or supplement as the International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the International Managers, 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 may be required by the laws of such
jurisdiction to continue such qualification in
17
22
effect for a period of not less than one year from 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 a manner not inconsistent with the use set
forth in the Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect and
maintain the quotation of the Securities 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 (other than on Form S-8) 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, (B) the
Securities to be sold under the U.S. Purchase Agreement, (C) 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, (D) 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 (E) any shares of Common Stock issued
pursuant to any non-employee director stock plan or dividend reinvestment plan.
(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 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.
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
18
23
filed and of each amendment thereto, (ii) the preparation, printing and delivery
to the Underwriters of this 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 the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the International
Managers and the U.S. Underwriters, (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 and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (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 preparation, printing and delivery to the Underwriters of copies of
the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of
any transfer agent or registrar for the Securities, (ix) 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 and (x) the fees and expenses incurred in connection with the
inclusion of the Securities in the Nasdaq National Market.
(b) Expenses of the Selling Shareholders. Each Selling Shareholder,
severally and not jointly, will pay all expenses incident to the performance of
its own obligations under, and the consummation of the transactions to be
engaged in by him or it as contemplated by this 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.
(c) Termination of Agreement. If this Agreement is terminated by the
Lead Managers in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Company shall reimburse the International Managers for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the International Managers.
(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 or allocation of such costs and expenses.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers 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
19
24
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 International Managers. 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 Lead Managers
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory
to counsel for the International Managers, together with signed or reproduced
copies of such letter for each of the other International Managers to the effect
set forth in Exhibit A hereto and to such further effect as counsel to the
International Managers may reasonably request. In rendering such opinion, such
counsel may rely as to matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of responsible officers of the Company
and public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the Lead Managers shall have received the favorable opinion, dated as of Closing
Time, of such counsel to the Selling Shareholders as is acceptable to the
International Managers, in form and substance satisfactory to counsel for the
International Managers, together with signed or reproduced copies of such letter
for each of the other International Managers substantially to the effect set
forth in Exhibit B hereto and to such further effect as counsel to the
International Managers may reasonably request. In rendering such opinion, such
counsel may rely as to matters of fact (but not as to legal conclusions), to the
extent they deem proper, on certificates of the Selling Shareholders,
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
(d) Opinion of General Counsel for Company. At Closing Time, the Lead
Managers shall have received the favorable opinion dated as of Closing Time, of
in-house General Counsel for the Company, in form and substance satisfactory to
counsel for the International Managers, together with the signed or reproduced
copies of such letter for each of the other International Managers to the effect
set forth in Exhibit C hereto and to such further effect as counsel to the
International Managers may reasonably request. In rendering such opinion, such
counsel may rely as to matters of fact (but not as to legal conclusions), to the
extent he deems proper, on certificates of responsible officers of the Company
and public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
20
25
(e) Opinion of Counsel for International Managers. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the International Managers, together with
signed or reproduced copies of such letter for each of the other International
Managers with respect to the matters set forth in clauses (i), (ii) (to the
knowledge of such counsel), (iv), (v) (solely as to preemptive or other similar
rights arising by operation of law or under the charter or By-laws of the
Company), (vii) through (ix), (xi)(A) and (xvii) of Exhibit A. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of California and 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 Lead
Managers. In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
(f) 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, or any development
involving a prospective 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 Lead Managers 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 (i) there has been no such material adverse
change, or any development involving a prospective 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.
(g) Certificate of Selling Shareholder. At Closing Time, the Lead
Managers 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 each 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) each 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.
(h) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Lead Managers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, a
letter dated such date, in form and substance satisfactory to the Lead Managers,
together with signed or reproduced copies of such letter for each of the other
International Managers containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to
21
26
the financial statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(i) Bring-down Comfort Letter. At Closing Time, the Lead Managers shall
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(j) 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.
(k) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(l) Lock-up Agreements. At the date of this Agreement, the Lead Managers
shall have received an agreement substantially in the form of Exhibit D hereto
signed by the persons listed on Schedule D hereto.
(m) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(n) Deposit of Options under Custody Agreements. On or prior to the date
of this Agreement, each Selling Shareholder that is selling Securities subject
to such Selling Shareholder's Stock Options, shall have deposited with the
custodian under the Custody Agreement of such Selling Shareholder an irrevocable
notice of exercise in the form attached to the Custody Agreement, and the
Attorney-in-Fact shall have exercised such number of Stock Options that, upon
exercise in full, shall have resulted in a number of Securities that, when added
to the Securities represented by certificates deposited with the custodian under
the Custody Agreement of such Selling Shareholder, shall equal the maximum
aggregate number of Securities which may be sold by such Selling Shareholder
under this Agreement and the U.S. Purchase Agreement.
(o) Conditions to Purchase of International Option Securities. In the
event that the International Managers exercise their option provided in Section
2(b) hereof to purchase all or any portion of the International 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 Lead Managers 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(f) hereof
remains true and correct as of such Date of Delivery.
22
27
(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(g) remains true and correct as of such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance
satisfactory to counsel for the International Managers, dated such Date of
Delivery, relating to the International 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.
(iv) Opinion of Counsel for the Selling Shareholders. The
favorable opinion of such counsel to the Selling Shareholders as is acceptable
to the International Managers, in form and substance satisfactory to counsel for
the International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(c) hereof.
(v) Opinion of General Counsel for Company. The favorable
opinion of in-house General Counsel to the Company, in form and substance
reasonably satisfactory to counsel for the International Managers dated such
Date of Delivery, relating to the International Option Securities to be purchase
on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(vi) Opinion of Counsel for International Managers. The
favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the International Managers,
dated such Date of Delivery, relating to the International Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(e) hereof.
(vii) Bring-down Comfort Letter. A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, in form and substance satisfactory to the Lead Managers and dated such Date
of Delivery, substantially in the same form and substance as the letter
furnished to the Lead Managers pursuant to Section 5(h) 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.
(p) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the International Managers shall have been furnished with such
documents and opinions as they may reasonably 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 satisfactory in form and substance to the Lead Managers and counsel for
the International Managers.
(q) 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 International
Option Securities, on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
23
28
International Option Securities, may be terminated by the Lead Managers 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 International Managers by the Company and
Management Selling Shareholders. The Company and each Management Selling
Shareholder, jointly and severally, agrees to indemnify and hold harmless each
International Manager and each person, if any, who controls any International
Manager within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act to the extent and in the manner set forth in subsections (i), (ii) and
(iii) of this Section 6(a) below.
(i) from and 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, in light of
the circumstances under which they were made, not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the International
Prospectus (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) from and 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; provided
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Company; and
(iii) from and 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, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense 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 International Manager through the
24
29
Lead Managers expressly 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
International Prospectus (or any amendment or supplement thereto); and
provided further that the Company and the Management Selling
Shareholders will not be liable to any International Manager with
respect to any International Prospectus to the extent that the Company
shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that such International
Manager, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such International
Manager failed to send or give, at or prior to the Closing Date, a copy
of the International Prospectus, as then amended or supplemented if: (i)
the Company has previously furnished copies thereof (sufficiently in
advance of the Closing Date to allow for distribution by the Closing
Date) to the International Manager and the loss, liability, claim,
damage or expense of such Underwriter resulted from an untrue statement
or omission of a material fact contained in or omitted from the
preliminary International Prospectus which was corrected in the
International Prospectus as, if applicable, amended or supplemented
prior to the Closing Date and such International Prospectus was required
by law to be delivered at or prior to the written confirmation of sale
to such person and (ii) such failure to give or send such International
Prospectus by the Closing Date to the party or parties asserting such
loss, liability, claim, damage or expense would have constituted the
sole defense to the claim asserted by such person; and provided further
that the aggregate liability of each Management Selling Shareholder
pursuant to this Section 6(a) will be limited to an amount equal to the
aggregate gross proceeds received by such Management Selling Shareholder
from such Management Selling Shareholder's sale of International
Securities to the International Managers.
(b) Indemnification of International Managers by the Other Selling
Shareholders. Each Other Selling Shareholder, severally and not jointly, agrees
to indemnify and hold harmless each International Manager and each person, if
any, who controls any International Manager within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner set
forth in subsections (i), (ii) and (iii) of this Section 6(b) below.
(i) from and 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, in light of
the circumstances under which they were made, not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the International
Prospectus (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) from and 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,
25
30
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of such Other Selling
Shareholder; and
(iii) from and 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, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that such Other Selling Shareholder will be
liable pursuant to this Section 6(b) only to the extent that any loss,
liability, claim, damage or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission in or from any of such documents in reliance upon and in
conformity with written information furnished to the Company by such
Other Selling Shareholder expressly for use therein; and provided,
further, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense 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 International Manager through the Lead
Managers expressly 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
International Prospectus (or any amendment or supplement thereto); and
provided further that the Other Selling Shareholders will not be liable
to any International Manager with respect to any International
Prospectus to the extent that the Company or the Other Selling
Shareholders shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted from the fact that such
International Manager, in contravention of a requirement of this
Agreement or applicable law, sold Securities to a person to whom such
International Manager failed to send or give, at or prior to the Closing
Date, a copy of the International Prospectus, as then amended or
supplemented if: (i) the Company has previously furnished copies thereof
(sufficiently in advance of the Closing Date to allow for distribution
by the Closing Date) to the International Manager and the loss,
liability, claim, damage or expense of such Underwriter resulted from an
untrue statement or omission of a material fact contained in or omitted
from the preliminary International Prospectus which was corrected in the
International Prospectus as, if applicable, amended or supplemented
prior to the Closing Date and such International Prospectus was required
by law to be delivered at or prior to the written confirmation of sale
to such person and (ii) such failure to give or send such International
Prospectus by the Closing Date to the party or parties asserting such
loss, liability, claim, damage or expense would have constituted the
sole defense to the claim asserted by such person; and provided further
that the aggregate liability of each Other Selling Shareholder pursuant
to this Section 6(b) will be limited to an amount equal to the aggregate
gross proceeds received by such Other Selling Shareholder from such
Other Selling Shareholder's sale of International Securities to the
International Managers.
26
31
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, 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 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 international prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
international prospectus or the International Prospectus (or any amendment or
supplement thereto).
(d) 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 Sections 6(a) and 6(b)
above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company or, in the event
that the Company does not make such selection, by those Selling Shareholders who
are seeking reimbursement or indemnification and who held a majority of the
Securities sold by each of the Selling Shareholders seeking reimbursement or
indemnification. 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 that the indemnified party deems reasonably necessary for the success of
the action) 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.
27
32
(e) 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, subject to the limitations on liability set
forth in Section 6(a) or Section 6(b) with respect to such Selling Shareholder,
for any settlement of the nature contemplated by Section 6(a)(ii) or 6(b)(ii)
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.
(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 to 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 International Managers on the other
hand from the offering of the 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 International Managers on
the other hand in connection with the statements or omissions 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 International Managers on the other hand in
connection with the offering of the International 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 International Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the Selling
Shareholders and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate public offering price of the International
Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the International Managers 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 International Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
28
33
The Company, the Selling Shareholders and the International Managers
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 International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this 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: (i) no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission; (ii) no Selling Shareholder shall be required to contribute any amount
in excess of the amount by which the aggregate gross proceeds received by such
Selling Shareholders from such Selling Shareholder's sale of International
Securities to the International Managers exceeds the amount of any damages which
such Selling Shareholder has otherwise been required to pay by reason of any
such untrue or alleged untrue statement or omission or alleged omission; and
(iii) any liability of an Other Selling Shareholder under this contribution
agreement shall be only with respect to written information furnished to the
Company by such Other Selling Shareholder expressly for use in the Registration
Statement, the Prospectuses or any amendments or supplements thereto.
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 an
International Manager 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
International Manager, 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
International Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
Notwithstanding the provisions of Section 6, this Section 7 or any other
provision of this Agreement, the Lead Managers agree that they will not take
action against or with respect to any Management Selling Shareholder under this
Agreement until they have first initiated and pursued all rights and remedies
they may have against the Company hereunder, if any, and sought to collect any
damage, expense or loss from the Company for a period of 45 days after any
judgment is entered on the issue of liability or damages, except that the Lead
Managers shall be
29
34
relieved of their obligation to first take action against the Company if (i) the
Company files a petition for relief under the United States Bankruptcy Code (the
"Bankruptcy Code"), (ii) an order for relief is entered against the Company in
an involuntary case under the Bankruptcy Code, (iii) the Company makes an
assignment for the benefit of its creditors, or (iv) any court orders or
approves the appointment of a receiver or custodian for the Company or a
substantial portion of its assets.
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 International Manager or controlling person, or by or on
behalf of the Company or the Selling Shareholders, and shall survive delivery of
the International Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Managers 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 International Prospectus, any material adverse change, or any development
involving a prospective 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, 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 Lead Managers, 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,
New York or California 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.
30
35
SECTION 10. Default by One or More of the International Managers. If one
or more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Initial International Securities or International
Option Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Lead Managers shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting International Managers, 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 Lead
Managers 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 International Securities to be purchased on such date,
each of the non-defaulting International Managers 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 International
Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of International 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 International Managers to
purchase and of the Company to sell the International Option Securities
to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting International
Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
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
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either (i) the Lead
Managers 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 Prospectuses or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager 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 International Securities which such
Selling Shareholder or Selling Shareholders are obligated to sell hereunder, the
remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of International 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, and the Company does not sell or
arrange for the sale of a number of shares of Common Stock determined in
accordance with Section 2(c), then the International Managers may, at option of
the Lead Managers, by notice from the Lead Managers to the Company and the
non-defaulting Selling Shareholder(s), either (i) terminate this Agreement
31
36
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 (ii) elect to purchase the International Securities which the non-defaulting
Selling Shareholder(s) 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.
(b) In the event of a default by any Selling Shareholder as referred to
in this Section 11, each of the Lead Managers, the Company and the
non-defaulting Selling Shareholder(s) 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.
(c) If the Company shall fail at Closing Time or at the Date of Delivery
to sell the number of International Securities that it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part
of any nondefaulting 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
International Managers shall be directed to the Lead Managers at 4 World
Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of
Equity Capital Markets. Notices to the Company shall be directed to it at ▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of General Counsel.
Notices to each Selling Shareholder shall be directed to the address indicated
for such Selling Shareholder on Schedule B hereto.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the International Managers, the Company and the Selling
Shareholders and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, 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 International Managers, 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 International
Securities from any International Manager 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.
32
37
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.
33
38
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 International
Managers, the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
EXULT, INC.
By:
---------------------------------
Title:
By:
---------------------------------
As Attorney-in-Fact acting on
behalf of the Selling
Shareholders named in Schedule B
hereto.
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇ SACHS INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By
---------------------------------
Authorized Signatory
For themselves and as Lead Managers of the other International Managers
named in Schedule A hereto.
34