1
Exhibit 1.1
- SHARES
GALILEO INTERNATIONAL, INC.
COMMON STOCK, $.01 PAR VALUE
UNDERWRITING AGREEMENT
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-, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Swiss Bank Corporation
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs and Mesdames:
Galileo International, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters (as defined below) and
certain stockholders of the Company (the "Selling Stockholders") named in
Schedule I hereto severally propose to sell to the several Underwriters, an
aggregate of - shares of the common stock, par value $.01 per share, of the
Company (the "Firm Shares"), of which - shares are to be issued and sold by the
Company and - shares are to be sold by the Selling Stockholders, each Selling
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Stockholder selling the number of shares set forth opposite such Selling
Stockholder's name in Schedule I hereto.
It is understood that, subject to the conditions hereinafter stated, -
Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule II hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. Underwriters and International Underwriters of even date
herewith), and - Firm Shares (the "International Shares") will be sold to the
several International Underwriters named in Schedule III hereto (the
"International Underwriters") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇
Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇.▇. ▇▇▇▇▇▇
Securities Inc. and Swiss Bank Corporation shall act as representatives (the
"U.S. Representatives") of the several U.S. Underwriters. The U.S. Underwriters
and the International Underwriters are hereinafter collectively referred to as
the "Underwriters."
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional - shares of the common stock, par value
$.01 per share, of the Company (the "Additional Shares") if and to the extent
that the U.S. Representatives shall have determined to exercise, on behalf of
the U.S. Underwriters, the right to purchase such shares of common stock granted
to the U.S. Underwriters in Section 3 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares." The shares of
common stock, par value $.01 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock." The Company and the Selling Stockholders are hereinafter
sometimes collectively referred to as the "Sellers."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The registration
statement contains two prospectuses, the U.S. prospectus, to be used in
connection with the offering and sale of Shares in the United States and Canada
to United States and Canadian Persons, and the international prospectus, to be
used in connection with the offering and sale of Shares outside the United
States and Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
outside front cover page. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration
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statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "Prospectus." If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose
are pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the representations and warranties set
forth in this paragraph 1(b) do not apply to statements or
omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you
expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to
transact
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business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each of (i) Galileo Partnership, a general
partnership organized under the laws of Delaware (the
"Existing Partnership"), (ii) - LLC, a limited liability
company organized under the laws of Delaware ("- LLC"), (iii)
[Sub1], a Delaware corporation ("Sub1"), (iv) [Sub2], a
Delaware corporation ("Sub2") and (v) Apollo Travel Services
Partnership, a Delaware general partnership (the "ATS
Partnership") has been duly organized, is validly existing, is
in good standing under the laws of the jurisdiction of its
organization, has the power and authority to own its property
and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole.
(e) On or before the Closing Date (as defined below) and
prior to the purchase and sale of the Firm Shares in
accordance with Section 5 hereof, (i) all of the issued and
outstanding equity interest in - LLC will be owned directly by
the Company, free and clear of all liens, encumbrances,
equities or claims, (ii) the Existing Partnership will have
been merged with and into - LLC, (iii) all of the issued
shares of capital stock of each of Sub1 and Sub2 will have
been duly and validly authorized and issued, will be fully
paid and non-assessable and will be owned directly by - LLC,
free and clear of all liens, encumbrances, equities or claims,
and (iv) all of the outstanding partnership or other equity
interests in the ATS Partnership will be owned directly by
Sub1 or Sub2, in each case free and clear of all liens,
encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
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(g) The registration rights agreement among the Company
and airline stockholders (the "Registration Rights Agreement")
and the stockholders' agreement among the Company and certain
of its stockholders and certain parties related to such
stockholders (the "Stockholders' Agreement") have been duly
authorized and, when executed and delivered by the Company,
will constitute valid and binding agreements of the Company
enforceable in accordance with their terms, except as (a)
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other
similar laws affecting enforcement of creditors' rights
generally, (b) enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (c) in the
case of the Registration Rights Agreement, enforcement of the
indemnity provisions contained therein may be limited by
principles of public policy.
(h) The authorized capital stock of the Company conforms
in all material respects as to legal matters to the
description thereof contained in the Prospectus.
(i) On the Closing Date (as defined in Section 5), the
shares of Common Stock (including the Shares to be sold by the
Selling Stockholders and by the Company) will have been duly
authorized, validly issued, fully paid and non-assessable, and
the issuance of such Shares will not be subject to any
preemptive or similar rights.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, the Registration Rights Agreement and the
Stockholders' Agreement will not contravene any provision of
(i) the certificate of incorporation or by-laws of the
Company, (ii) any applicable law or any agreement or other
instrument binding upon the Company or any of its
subsidiaries, except for any contraventions as would not
individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole or
would materially and adversely affect the consummation by the
Company of the transactions contemplated by this Agreement, or
(iii) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the
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Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the
Registration Rights Agreement or the Stockholders' Agreement,
except such as may be required by the Securities Act and the
Securities Exchange Act of 1934, as amended, the securities or
Blue Sky laws of the various states or the securities or
similar laws of any foreign jurisdiction in connection with
the offer and sale of the Shares.
(k) There has not occurred any material adverse change,
or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(l) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(m) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(n) To the best of its knowledge, the Company and its
subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of
them under applicable Environmental
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Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, reasonably be expected
to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, (i) the Company and its subsidiaries have not
incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in
the ordinary course of business; (ii) the Company has not
purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any
kind on its capital stock other than ordinary and customary
dividends; and (iii) there has not been any material change in
the capital stock, short-term debt or long-term debt of the
Company and its consolidated subsidiaries, except in each case
as described in or contemplated by the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the
date of this Agreement).
(p) Except as described in the Prospectus under
"Relationship With Airline Stockholders and Certain
Transactions -- Registration Rights Agreement" and
"Management," there are no contracts, agreements or
understandings between the Company and any person granting
such person the right to require the Company to file a
registration statement under the Securities Act with respect
to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to
the Registration Statement.
(q) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, all material patents, patent
rights, licenses, inventions, copyrights, software, know-how
(including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now
operated by them, and neither
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the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in any material adverse change
in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole.
(r) The Company and its subsidiaries possess all material
certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities
necessary to conduct their respective businesses, and neither
the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a material adverse change
in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, except as described in or contemplated by
the Prospectus.
2. Representations and Warranties of the Selling Stockholders. Each
of the Selling Stockholders represents and warrants to and agrees with each of
the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(b) The Stockholders' Agreement has been duly authorized
by such Selling Stockholder and, when executed and delivered
by the such Selling Stockholder, will constitute, a valid and
binding agreement of such Selling Stockholder enforceable in
accordance with its terms except as enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(c) The execution and delivery by such Selling
Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement and the
Stockholders' Agreement will not contravene any provision of
(i) the certificate
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of incorporation or by-laws or other constitutive documents of
such Selling Stockholder, (ii) any applicable law or any
agreement or other instrument binding upon such Selling
Stockholder, except for any contraventions as would not
individually or in the aggregate materially and adversely
affect the consummation by such Selling Stockholder of the
transactions contemplated by this Agreement or any judgment,
order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder, and no
consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the
performance by such Selling Stockholder of its obligations
under this Agreement or the Stockholders' Agreement, except
such as may be required by the Securities Act, the securities
or Blue Sky laws of the various states or the securities or
similar laws of any foreign jurisdiction in connection with
the offer and sale of the Shares.
(d) On the Closing Date (as defined below) such Selling
Stockholder will have, valid title to the Shares to be sold by
such Selling Stockholder and the legal right and power, and
all authorization and approval required by law, to enter into
this Agreement and the Stockholders' Agreement and to sell,
transfer and deliver the Shares to be sold by such Selling
Stockholder.
(e) Delivery of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement will pass title to such
Shares free and clear of any security interests, claims,
liens, equities and other encumbrances.
(f) (i) The Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and
the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that the representations and warranties
set forth in this
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paragraph 2(f) apply only to statements or omissions in the
Registration Statement or the Prospectus based upon
information relating to such Selling Shareholder furnished to
the Company in writing by such Selling Shareholder expressly
for use therein.
(g) Such Selling Stockholder has not taken, and will not
take, directly or indirectly, any action designed to, 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
pursuant to the distribution contemplated by this Agreement,
and other than as permitted by the Securities Act, such
selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in
connection with the offering and sale of the Securities.
3. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at U.S.$- a share (the "Purchase
Price") the number of Firm Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
number of Firm Shares to be sold by such Seller as the number of Firm Shares set
forth in Schedule II or Schedule III hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to - Additional
Shares at the Purchase Price. If the U.S. Representatives, on behalf of the U.S.
Underwriters, elect to exercise such option, the U.S. Representatives shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall specify the number of Additional Shares to be
purchased by the U.S. Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date but not earlier than
the Closing Date nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 5 hereof solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. If any Additional Shares are to be purchased, each U.S.
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
the U.S.
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Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased as the number of U.S. Firm Shares
set forth in Schedule II hereto opposite the name of such U.S. Underwriter bears
to the total number of U.S. Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (other than any such transaction between a Selling
Stockholder and any affiliate thereof provided that such affiliate has delivered
to you on or before the date of such transaction, a lock-up agreement,
substantially in the form of Exhibit A hereto) or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the Shares to be sold hereunder. In addition, each
Selling Stockholder agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Underwriters, it will not, during
the period ending 180 days after the date of the Prospectus, make any demand
for, or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable for
Common Stock.
4. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
U.S.$- a share (the "Public Offering Price") and to certain dealers selected by
you at a price that represents a concession not in excess of U.S.$- a share
under the Public Offering Price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of U.S.$- a share, to any
Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by
each Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 A.M., New York City
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time, on -, 1997, or at such other time on the same or such other date, not
later than -, 1997, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several U.S.
Underwriters at 10:00 A.M., New York City time, on the date specified in the
notice described in Section 3 or at such other time on the same or on such other
date, in any event not later than -, 1997, as shall be designated in writing by
the U.S. Representatives. The time and date of such payment are hereinafter
referred to as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of
the Sellers to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 3:00 P.M. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
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(b) The Underwriters shall have received on the Closing
Date:
(i) a certificate of the Company, dated the
Closing Date and signed by an executive officer of
the Company, to the effect that the representations
and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the
agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or
before the Closing Date (the officer signing and
delivering such certificate may rely upon the best of
his or her knowledge as to proceedings threatened);
and
(ii) a certificate of each Selling Stockholder,
dated the Closing Date and signed by an officer of
such Selling Stockholder, to the effect that the
representations and warranties of such Selling
Stockholder contained in this Agreement are true and
correct as of the Closing Date and that such Selling
Stockholder has complied with all of the agreements
and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the
Closing Date.
(c) The Underwriters shall have received on the Closing
Date (i) an opinion and a letter of Shearman & Sterling,
outside counsel for the Company, dated the Closing Date, in
the forms attached hereto as Exhibits A1 and A2 and (ii) an
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, outside counsel for the
Company, dated the Closing Date, in the form attached hereto
as Exhibit A3.
(d) The Underwriters shall have received on the Closing
Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel of ATS
Partnership, dated the Closing Date, in the form attached
hereto as Exhibit B1.
(e) The Underwriters shall have received on the Closing
Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the
Company, dated the Closing Date, in the form attached hereto
as Exhibit C.
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(f) The Underwriters shall have received on the Closing
Date an opinion of -, local counsel to [Air Canada], dated the
Closing Date, in the form attached hereto as Exhibit D1 and an
opinion of -, U.S. counsel to [Air Canada], dated the Closing
Date, in the form attached hereto as Exhibit E1.
(g) The Underwriters shall have received on the Closing
Date an opinion of -, local counsel to [Alitalia-Linee Aeree
Italiane S.p.A.], dated the Closing Date, in the form attached
hereto as Exhibit D2 and an opinion of -, U.S. counsel to
[Alitalia-Linee Aeree Italiane S.p.A.], dated the Closing
Date, in the form attached hereto as Exhibit E2.
(h) The Underwriters shall have received on the Closing
Date an opinion of -, local counsel to [US Airways, Inc.],
dated the Closing Date, in the form attached hereto as Exhibit
D3 and an opinion of -, U.S. counsel to [US Airways, Inc.],
dated the Closing Date, in the form attached hereto as Exhibit
E3.
(i) The Underwriters shall have received on the Closing
Date an opinion of -, local counsel to [SAir Group (Ltd.)],
dated the Closing Date, in the form attached hereto as Exhibit
D4 and an opinion of -, U.S. counsel to [SAir Group (Ltd.)],
dated the Closing Date, in the form attached hereto as Exhibit
E4.
(j) The Underwriters shall have received on the Closing
Date an opinion of -, local counsel to [British Airways plc],
dated the Closing Date, in the form attached hereto as Exhibit
D5 and an opinion of -, U.S. counsel to [British Airways plc],
dated the Closing Date, in the form attached hereto as Exhibit
E5.
(k) The Underwriters shall have received on the Closing
Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, dated the Closing Date, in form and substance
satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
The opinions described in paragraphs (c), (d), (e),
(f), (g), (h), (i) and (j) above shall be rendered to the
Underwriters at the request of the Company, the ATS
Partnership or one or more of the Selling Stockholders, as the
case may be, and shall so state therein.
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16
(l) The Underwriters shall have received, on each of the
date hereof and the Closing Date, a letter dated the date
hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, from each of KPMG
Peat Marwick LLP, independent public accountants, and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
provided that the letters delivered on the Closing Date shall
use a "cut-off date" not earlier than the date hereof.
(m) The "lock-up" agreements, each substantially in the
form of Exhibit A hereto, between you and the airline
stockholders of te Company relating to sales and certain other
dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof,
shall be in full force and effect on the Closing Date.
The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on the
Option Closing Date of such documents as they may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of the Additional Shares and other matters related to the issuance of the
Additional Shares.
7. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, seven signed
copies of the Registration Statement (including exhibits
thereto) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits
thereto) and to furnish to you in New York City, without
charge, prior to 10:00 A.M. New York City time on the business
day next succeeding the date of this Agreement and during the
period mentioned in paragraph (c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to
the Registration Statement as you may reasonably request.
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17
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each
such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which you reasonably
object, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish to the
Underwriters and to the dealers (whose names and addresses you
will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or
supplemented, will comply with law. The expense of complying
with this Section 7(c) shall be borne by the Company in
respect of any amendment or supplement required during the
nine-month period after effectiveness of the Registration
Statement and by the Underwriters thereafter.
(d) To endeavor to qualify the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement
covering the twelve-month period ending -, 1998 that satisfies
the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
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8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in connection
with the review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all fees and expenses in connection
with the preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to listing the
Shares on the New York Stock Exchange and foreign stock exchanges, (vi) the cost
of printing certificates representing the Shares, (vii) the costs and charges of
any transfer agent, registrar or depositary, (viii) the costs and expenses of
the Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, and (ix) all other costs and expenses incident to the performance of the
obligations of the Company hereunder for which provision is not otherwise made
in this Section. Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, each Selling Stockholder agrees
to pay or cause to be paid all expenses incident to the performance of its
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obligations under this Agreement, including the fees, disbursements and expenses
of such Selling Stockholder's U.S. and local counsel, but not including any of
the expenses payable by the Company as set forth above. It is understood,
however, that except as provided in this Section, Section 9 entitled "Indemnity
and Contribution", and the last paragraph of Section 11 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
9. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter or Selling Stockholder furnished to the
Company in writing by such Underwriter through you or by such Selling
Stockholder, respectively, expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability.
(b) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other
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expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such
Selling Stockholder furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto; provided,
that (i) with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus the indemnity agreement
contained in this subsection (b) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased any Shares, to the extent that a prospectus relating to
such Shares was required to be delivered by such Underwriter under the Act in
connection with such purchase and any such loss, claim, damage or liability of
such Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Shares to
such person, a copy of the Prospectus if the Company had previously furnished
copies thereof to such Underwriter, and (ii) the liability of any Selling
Stockholder pursuant to this paragraph (b) shall be limited to an amount equal
to the total net proceeds received by such Selling Stockholder from the sale of
Shares by such Selling Stockholder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each Selling Stockholder, the directors of the
Company (including persons identified to become directors), the officers of the
Company who sign the Registration Statement and each person, if any, who
controls the Company or any Selling Stockholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with reference
to information relating to such Underwriter furnished to the Company in writing
by
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such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a), (b) or (c) of this Section 9, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Selling Stockholders and all persons, if any, who control
any Selling Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm for
the Selling Stockholders and such control persons of any Selling Stockholders,
such firm shall be designated in writing by the Selling Stockholders. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
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22
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in paragraph (a),
(b) or (c) of this Section 9 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Sellers
on the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Shares (before deducting expenses)
received by each Seller and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Sellers on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Sellers or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 9 are several in proportion to the respective number of
Shares they have purchased hereunder, and not joint. The Selling Stockholders'
respective obligations to contribute pursuant to this Section 9 are several in
proportion to the net proceeds from the sale of Shares by each such Selling
Stockholder hereunder, and not joint.
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(f) The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (e) of this Section 9. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, (i) no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and (ii) no Selling Stockholder shall
be required to contribute any amount in excess of the amount by which the net
proceeds received from the sale of Shares by such Selling Stockholder exceeds
the amount of any damages that such Selling Stockholder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
9 and the representations, warranties and other statements of the Company and
the Selling Stockholders contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, any Selling Stockholder or any person controlling
any Selling Stockholder, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities
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of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedules II and III
bears to the aggregate number of Firm Shares set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 11 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to you, the Company and the Selling Stockholders for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders. In any such
case either you or the relevant Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If, on the Option
Closing Date, any U.S. Underwriter or U.S. Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of
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Additional Shares to be purchased, the non-defaulting U.S. Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting U.S. Underwriters would have been obligated to purchase
in the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting U.S. Underwriter from liability in respect of any default
of such U.S. Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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Very truly yours,
GALILEO INTERNATIONAL, INC.
By:____________________________
Name:
Title:
The Selling Stockholders
named in Schedule I hereto,
acting severally
By:____________________________
Attorney-in-Fact
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Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
SWISS BANK CORPORATION
Acting severally on behalf
of themselves and the
several U.S. Underwriters named
in Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated
By:____________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
LIMITED
SWISS BANK CORPORATION,
ACTING THROUGH ITS DIVISION,
SBC WARBURG
ABN AMRO ROTHSCHILD
HSBC INVESTMENT BANK LIMITED
▇▇▇▇▇▇ BROTHERS INTERNATIONAL (EUROPE)
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇.▇. ▇▇▇▇▇▇ SECURITIES LTD.
Acting severally on behalf
of themselves and the
several International Underwriters named
in Schedule III hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International
Limited
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By:____________________________
Name:
Title:
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29
SCHEDULE I
Number of Firm
Selling Stockholder Shares to Be Sold
Total
30
SCHEDULE II
Number of Firm Shares
U.S. Underwriter to Be Purchased
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Swiss Bank Corporation
Total
31
SCHEDULE III
Number of Firm Shares
International Underwriter to Be Purchased
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International Limited
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
Total
32
Exhibit A
[Form of Lock-up Letter]
-, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Swiss Bank Corporation
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), as Representative of the several Underwriters, proposes to
enter into an Underwriting Agreement (the "Underwriting Agreement") with Galileo
International, Inc., a Delaware corporation (the "Company"), and certain
stockholders of the Company
33
(the "Selling Stockholders") providing for the public offering (the "Public
Offering") by the several Underwriters, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"Underwriters"), of up to shares (the "Shares") of the Common Stock ($.01 par
value per share) of the Company (the "Common Stock").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock (other than any such transaction between an airline stockholder and
any affiliate thereof provided that such affiliate has delivered to you on or
before the date of such transaction, a "lock-up" agreement , substantially
identical to this agreement) (provided that such shares or securities are either
now owned by the undersigned or are hereafter acquired prior to or in connection
with the Public Offering), or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of such shares of Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to the sale of any Shares to the Underwriters pursuant to the Underwriting
Agreement. In addition, the undersigned agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the
Prospectus, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation among the Company, the Selling Stockholders and the Underwriters.
Very truly yours,
-------------------------
(Name)
-------------------------
34
(Address)
35
Exhibit A1 - Letter of
Shearman & Sterling,
Counsel for the Company
__, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
SBC Warburg Inc.
As Representatives of the Several U.S.
Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
As Representatives of the Several
International Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Galileo International, Inc.
Initial Public Offering
Ladies and Gentlemen:
We have acted as counsel for Galileo International, Inc., a Delaware
corporation (the "Company"), in connection with the purchase by the underwriters
(the "Underwriters"), including yourselves, named in Schedules II and III to the
Underwriting Agreement dated ______, 1997 (the "Underwriting Agreement") among
the Underwriters, the Company and the Selling Stockholders
36
2
named in the Underwriting Agreement, of __________ shares of the Company's
common stock, $.01 par value.
In our capacity as counsel to the Company, we have examined signed
copies of the registration statement on Form S-1 (No. 333-27495) filed by the
Company under the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission") on May 20, 1997,
and of amendments 1-______ thereto filed by the Company with the Commission on
____ __, 1997 and ______ __, 1997, respectively, and copies of the related
prospectuses. The registration statement as amended at the time when it became
effective, including the information deemed to be part thereof at the time of
effectiveness pursuant to Rule 430A under the Securities Act, and also including
the exhibits and schedules thereto, is hereinafter referred to as the
"Registration Statement," and the final U.S. prospectus dated ______, 1997 and
the final international prospectus dated ______, 1997, in the forms filed by the
Company pursuant to Rule 424(b) under the Securities Act, are hereinafter
collectively referred to as the "Prospectus".
We have also reviewed and participated in discussions concerning the
preparation of the Registration Statement and the Prospectus with certain
officers and employees of the Company, with its counsel and its auditors, and
with representatives of the Underwriters. The limitations inherent in the
independent verification of factual matters and in the role of outside counsel
are such, however, that we cannot and do not assume any responsibility for the
accuracy, completeness or fairness of any of the statements made in the
Registration Statement or the Prospectus, except as set forth in paragraphs _
and _ of our opinion addressed to you, dated the date hereof.
Subject to the limitations set forth in the immediately preceding
paragraph, we advise you that, on the basis of the information we gained in the
course of performing the services referred to above, (i) in our opinion, the
Registration Statement and the Prospectus (other than the financial statements
and schedules and other financial and statistical data contained therein or
omitted therefrom, as to which we express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder; (ii) no facts came to our attention which gave us reason to believe
that (a) the Registration Statement (other than the financial statements and
schedules and other financial and statistical data contained therein or omitted
therefrom, as to which we have not been requested to comment), at the time it
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not
37
3
misleading, or (b) the Prospectus (other than the financial statements and
schedules and other financial and statistical data contained therein or omitted
therefrom, as to which we have not been requested to comment), as of its date or
the date hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and (iii) we do not know of any contract or other document of a
character required to be filed as an exhibit to the Registration Statement that
is not so filed.
This opinion is being rendered to you at the request of Galileo
International, Inc. pursuant to Section 6(c) of the Underwriting Agreement. This
letter is being furnished to you solely for your benefit, and is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
Shearman & Sterling
38
ExhibitA2 - Opinion of Shearman & Sterling
Counsel for the Company
__, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
SBC Warburg Inc.
As Representatives of the Several U.S.
Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
As Representatives of the Several
International Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Galileo International, Inc.
Initial Public Offering
Ladies and Gentlemen:
39
2
We have acted as counsel for Galileo International, Inc., a Delaware
corporation (the "Company"), in connection with the purchase by the underwriters
(the "Underwriters"), including yourselves, named in Schedules II and III to the
Underwriting Agreement dated ________, 1997 (the "Underwriting Agreement") among
the Underwriters, the Company and the Selling Stockholders named in the
Underwriting Agreement (the "Selling Stockholders"), of ________ shares of the
Company's common stock, $.01 par value (the "Common Stock").
In our capacity as counsel to the Company, we have examined signed
copies of the registration statement on Form S-1 (No. 333-27495) filed by the
Company under the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission") on May 20, 1997,
and of amendments 1-_____ thereto filed by the Company with the Commission on
_______, 1997 and _______, 1997, respectively, and copies of the related
prospectuses. The registration statement as amended at the time when it became
effective, including the information deemed to be part thereof at the time of
effectiveness pursuant to Rule 430A under the Securities Act, and also including
the exhibits and schedules thereto, is hereinafter referred to as the
"Registration Statement", and the final U.S. prospectus dated _______, 1997 and
the final international prospectus dated _______, 1997, in the forms filed by
the Company pursuant to Rule 424(b) under the Securities Act, are hereinafter
collectively referred to as the "Prospectus".
We have also examined and relied as to factual matters upon the
representations and warranties contained in or made pursuant to the Underwriting
Agreement, and upon the originals, or copies certified or otherwise identified
to our satisfaction, of such records, documents, certificates and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the originals of all documents submitted to
us as copies.
Our opinion set forth below is limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the federal
law of the United States, and we do not express any opinion herein concerning
any other law.
Based upon and subject to the foregoing, we are of the opinion that:
40
3
1. the Company has been duly incorporated and is validly existing as
a corporation in good standing under the law of the State of Delaware,
with corporate power and authority under such law to own its property and
to conduct its business as described in the Prospectus.
2. each of [Sub 1 and Sub 2 of Galileo International, LLC] has been
duly incorporated and is validly existing in good standing under the law
of the State of Delaware, with corporate power and authority under such
law to own its property and to conduct its business as described in the
Prospectus;
3. the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained
in the Prospectus;
4. the statements (a) in the Prospectus under the captions "The
Company - Galileo International, Inc.", "The Company - the NDC
Acquisitions", "Relationship with Airline Stockholders and Certain
Transactions", "Description of Capital Stock" and "Underwriters" and (b)
in the Registration Statement in Items 14 and 15, in each case insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
5. the shares of Common Stock issued by the Company pursuant to the
[Certificate of Merger], including the shares of Common Stock sold to the
Underwriters today by the Selling Stockholders and the shares of Common
Stock to be sold by the Company to the Underwriters, have been duly
authorized and are validly issued, fully paid and non-assessable, and the
issuance and sale of such shares is not subject to any preemptive or
similar rights;
6. after giving effect to the transactions contemplated by the
General Partnership Interest Purchase Agreement dated as of ______, 1997,
among Galileo International Partnership and the other parties named
therein, the general partnership interests in ATS will be owned of record
by [Sub 1 and Sub 2]; all of the outstanding capital stock of [Sub 1 and
Sub 2] is owned of record by Galileo International LLC; [and all of the
equity interests in Galileo International LLC are owned of record by the
41
4
Company], in each case, free and clear of all liens, encumbrances,
equities or claims known to us;
7. the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
8. Each of the Registration Rights Agreement (the "Registration
Rights Agreement"), dated _______, 1997, among the Company and the
Original Stockholders named therein, and the Stockholders' Agreement (the
"Stockholders' Agreement"), dated _______, 1997, among the Company and the
Original Owners named therein, has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable in accordance with its terms except
as (a) enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally, (b) enforcement thereof is
subject to general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law) and (c) in the case of
the Registration Rights Agreement, enforcement of the indemnity provisions
contained therein may be limited by principles of public policy;
9. the execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Stockholders' Agreement and the Registration Rights Agreement will not
contravene any provision of (a) the certificate of incorporation or
by-laws of the Company or (b) the federal law of the United States or the
law of the State of New York, except in the case of this clause (b) for
any contraventions as would not individually or in the aggregate have a
material adverse effect on the Company and its subsidiaries taken as a
whole or materially and adversely affect the consummation by the Company
of the transactions contemplated by the Underwriting Agreement, the
Stockholders' Agreement or the Registration Rights Agreement;
10. no consent, approval, authorization or order of, or
qualification with, any governmental body or agency of the United States
of America or the State of New York is required for the performance by the
Company of its obligations under the Underwriting Agreement, the
Stockholders'
42
5
Agreement and the Registration Rights Agreement, except as may be required
by the registration provisions of the Securities Act and the Securities
Exchange Act of 1934, as amended, or the securities or Blue Sky laws of
the State of New York; and
11. the Registration Statement became effective under the 1933 Act
on [-]; the Prospectus has been filed with the Commission in the manner
and within the time period required by Rules 430A and 424(b) under the
1933 Act; and, to the best of our knowledge, the Registration Statement is
still effective, 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 contemplated under the 1933 Act.
This opinion is being rendered to you at the request of Galileo
International, Inc. pursuant to Section 6(c) of the Underwriting Agreement. This
letter is being furnished to you solely for your benefit, and is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
Shearman & Sterling
43
Exhibit B1 - Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇,
General Counsel of ATS
__, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
SBC Warburg Inc.
As Representatives of the Several U.S.
Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
As Representatives of the Several
International Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Galileo International, Inc.
Initial Public Offering
Ladies and Gentlemen:
44
2
I am General Counsel of Apollo Travel Services Partnership, a
Delaware general partnership ("ATS"). In such capacity I have examined and
relied as to factual matters upon the originals, or copies certified or
otherwise identified to my satisfaction, of such records, documents,
certificates and other instruments as in my judgment are necessary or
appropriate to enable me to render the opinion expressed below. In my
examination, I have assumed the genuineness of all signatures, the authenticity
of all documents submitted tome as originals and the conformity with the
originals of all documents submitted to me as copies.
My opinion set forth below is limited to the law of the State of
Delaware, and I do not express any opinion herein concerning any other law.
Based upon and subject to the foregoing, I am of the opinion that
ATS has been duly formed and is validly existing as a general partnership in
good standing under the law of the State of Delaware, with power and authority
to own its property and to conduct its business now owned and conducted, and is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on it
and its subsidiaries, taken as a whole.
This opinion is being rendered to you at the request of ATS pursuant
to Section 6(d) of the Underwriting Agreement.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇
45
Exhibit C - Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
General Counsel of the Company
__, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
SBC Warburg Inc.
As Representatives of the Several U.S.
Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
As Representatives of the Several
International Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Galileo International, Inc.
Initial Public Offering
Ladies and Gentlemen:
46
2
I am Senior Vice President, Legal and General Counsel of Galileo
International, Inc., a Delaware corporation (the "Company"), and have acted as
counsel to the Company in connection with the purchase by the underwriters (the
"Underwriters"), including yourselves, named in Schedules II and III to the
Underwriting Agreement dated ______, 1997 (the "Underwriting Agreement") among
the Underwriters, the Company and the Selling Stockholders named in the
Underwriting Agreement (the "Selling Stockholders"), of _________ shares of the
Company's common stock, $.01 par value, (the "Common Stock").
In my capacity as counsel to the Company, I have examined signed
copies of the registration statement on Form S-1 (No. 333-27495) filed by the
Company under the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission") on May 20, 1997,
and of amendments 1-____ thereto filed by the Company with the Commission on
______, 1997 and ______, 1997, respectively, and copies of the related
prospectuses. The registration statement as amended at the time when it became
effective, including the information deemed to be part thereof at the time of
effectiveness pursuant to Rule 430A under the Securities Act, and also including
the exhibits and schedules thereto, is hereinafter referred to as the
"Registration Statement", and the final U.S. prospectus dated ______, 1997 and
the final international prospectus dated ______, 1997, in the forms filed by the
Company pursuant to Rule 424(b) under the Securities Act, are hereinafter
collectively referred to as the "Prospectus".
I have also examined and relied as to factual matters upon the
representations and warranties of persons other than the Company contained in or
made pursuant to the Underwriting Agreement, and upon the originals, or copies
certified or otherwise identified to my satisfaction, of such records,
documents, certificates and other instruments as in my judgment are necessary or
appropriate to enable me to render the opinion expressed below. In my
examination, I have assumed the genuineness of all signatures, the authenticity
of all documents submitted to me as originals and the conformity with the
originals of all documents submitted to me as copies.
My opinion set forth below is limited to the law of the State of
Illinois, the General Corporation Law of the State of Delaware and the federal
law of the United States, and I do not express any opinion herein concerning any
other law. Although I am licensed to practice law in the State of Colorado and
the Commonwealth of Massachusetts, I am not licensed to practice law in the
State of Illinois. To the extent my opinion set forth in paragraphs 3 and 4
below covers
47
3
Illinois law, I am relying on attorneys under my supervision who are licensed to
practice in the State of Illinois.
Based upon and subject to the foregoing, I am of the opinion that:
1. the Company has been duly incorporated and is validly existing
as a corporation in good standing under the law of the State of Delaware,
with corporate power and authority under such law to own its property and
to conduct its business as described in the Prospectus, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
2. Galileo International, LLC is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
3. the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement will not contravene any provision of (a) the federal law of the
United States or the law of the State of Illinois, or, to my knowledge,
any agreement or other instrument that is binding upon the Company and
that is material to the Company and its subsidiaries, taken as a whole,
except in the case of this clause (a) for any contraventions as would not
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole or materially and adversely
affect the consummation by the Company of the transactions contemplated by
the Underwriting Agreement, or (b) to my knowledge, any judgment, order or
decree of any governmental body, agency or court of the United States of
America or the State of Illinois having jurisdiction over the Company;
4. no consent, approval, authorization or order of, or
qualification with, any governmental body or agency of the United States
of America or the State of Illinois is required for the performance by the
48
4
Company of its obligations under the Underwriting Agreement, except as may
be required by the Securities Act or the securities or Blue Sky laws of
the State of Illinois; and
5. to my knowledge, there are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries is a
party or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of
any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described or
filed as required.
I have not verified, and am not passing upon and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus. I have, however,
reviewed and participated in discussions concerning the preparation of the
Registration Statement and the Prospectus with certain officers and employees of
the Company, with its auditors, and with representatives of the Underwriters. In
the course of this review and discussion, no facts came to my attention which
gave me reason to believe that (a) the Registration Statement (other than the
financial statements and schedules and other financial and statistical data
contained therein or omitted therefrom, as to which I have not been requested to
comment), at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (b) the
Prospectus (other than the financial statements and schedules and other
financial and statistical data contained therein or omitted therefrom, as to
which I have not been requested to comment), as of its date or the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
This opinion is being rendered to you at the request of Galileo
International, Inc. pursuant to Section 6(e) of the Underwriting Agreement. This
letter is being furnished to you solely for your benefit, and is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
49
5
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President,
Legal and General Counsel
50
Exhibit D1 - Opinion of
Local Counsel for
Selling Stockholder
__, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
SBC Warburg Inc.
As Representatives of the Several U.S.
Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
As Representatives of the Several
International Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Galileo International, Inc.
Initial Public Offering
Ladies and Gentlemen:
51
2
I have acted as counsel for [Name of Selling Stockholder], a
[description of entity] (the "Selling Stockholder"), in connection with the
purchase by the underwriters (the "Underwriters"), including yourselves, named
in Schedules II and III to the Underwriting Agreement dated ______, 1997 (the
"Underwriting Agreement") among the Underwriters, Galileo International, Inc., a
Delaware corporation (the "Company"), the Selling Stockholder and the other
selling stockholders named in the Underwriting Agreement, of the number of
shares of the Company's common stock, $.01 par value, set forth opposite the
name of the Selling Stockholder in Schedule __ to the Underwriting Agreement
(the "Shares").
In such capacity, I have examined and relied as to factual matters
upon the representations and warranties contained in or made pursuant to the
Underwriting Agreement, and upon the originals, or copies certified or otherwise
identified to my satisfaction, of such records, documents, certificates and
other instruments as in my judgment are necessary or appropriate to enable me to
render the opinion expressed below. In such examination, I have assumed the
genuineness of all signatures, the authenticity of all documents submitted to me
as originals and the conformity with the originals of all documents submitted to
me as copies.
My opinion set forth below is limited to the law of [jurisdiction of
incorporation], and I do not express any opinion herein concerning any other
law.
Based upon and subject to the foregoing, I am of the opinion that:
1. the Selling Stockholder has been duly incorporated and is validly
existing as a [type of entity] in good standing under the law of
[jurisdiction of incorporation], with corporate power and authority under
such law to enter into and perform its obligations under the Underwriting
Agreement and to sell, transfer and deliver the Shares as contemplated
thereby;
2. each of the Underwriting Agreement and the Stockholders'
Agreement (the "Stockholders' Agreement"), dated ___________, 1997, among
the Company, the Selling Stockholder and the other Original Owners named
therein has been duly authorized, executed and delivered by the Selling
Stockholder;
52
3
3. the execution and delivery by the Selling Stockholder of, and the
performance by the Selling Stockholder of its obligations under, the
Underwriting Agreement and the Stockholders' Agreement will not contravene
any provision of (a) the certificate of incorporation or by-laws or other
constitutive documents of the Selling Stockholder, (b) the law of
[jurisdiction of incorporation], or, to my knowledge, any agreement or
other instrument that is binding upon the Selling Stockholder and that is
material to the Selling Stockholder and its affiliates, taken as a whole,
except in the case of this clause (b) for any contraventions as would not
individually or in the aggregate materially and adversely affect the
consummation by such Selling Stockholder of the transactions contemplated
by the Underwriting Agreement or the Stockholders' Agreement, or (c) to my
knowledge, any judgment, order or decree of any governmental body, agency
or court of [jurisdiction of incorporation] having jurisdiction over the
Selling Stockholder;
4. no consent, approval, authorization or order of, or qualification
with, any governmental body or agency of [jurisdiction of incorporation]
is required for the performance by the Selling Stockholder of its
obligations under the Underwriting Agreement or the Stockholders'
Agreement except as may be required by the securities or similar laws of
[jurisdiction of incorporation]; and
5. to the extent the matter is governed or affected by the law of
[jurisdiction of incorporation], the Selling Stockholder has valid title
to the Shares, and delivery of the Shares pursuant to the Underwriting
Agreement will pass title to the Shares free and clear of any security
interests, claims, liens, equities and other encumbrances.
This opinion is being rendered to you at the request of [Name of
Selling Stockholder] pursuant to Section 6(f) of the Underwriting Agreement.
This opinion is being furnished to you solely for your benefit, and is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
53
Exhibit E - Opinion of ________,
U.S. Counsel for
Selling Stockholder
__, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
SBC Warburg Inc.
As Representatives of the Several U.S.
Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Swiss Bank Corporation,
acting through its division, SBC Warburg
ABN AMRO Rothschild
HSBC Investment Bank Limited
▇▇▇▇▇▇ Brothers International (Europe)
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
As Representatives of the Several
International Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Galileo International, Inc.
Initial Public Offering
Ladies and Gentlemen:
54
2
We have acted as counsel for [Name of Selling Stockholder], a
[description of entity] (the "Selling Stockholder"), in connection with the
purchase by the underwriters (the "Underwriters"), including yourselves, named
in Schedules II and III to the Underwriting Agreement dated ______, 1997 (the
"Underwriting Agreement") among the Underwriters, Galileo International, Inc., a
Delaware corporation (the "Company"), the Selling Stockholder and the other
selling stockholders named in the Underwriting Agreement, of the number of
shares of the Company's common stock, $.01 par value, set forth opposite the
name of the Selling Stockholder in Schedule __ to the Underwriting Agreement
(the "Shares").
We have also examined and relied as to factual matters upon the
representations and warranties contained in or made pursuant to the Underwriting
Agreement, and upon the originals, or copies certified or otherwise identified
to our satisfaction, of such records, documents, certificates and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinion expressed below. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the originals of all documents submitted to
us as copies.
Our opinion set forth below is limited to the law of the State of
New York and the federal law of the United States, and assumes without
independent inquiry (i) the correctness of the opinion of counsel for the
Selling Stockholder furnished to you today pursuant to Section __ of the
Underwriting Agreement and (ii) that the Stockholders' Agreement (the
"Stockholders' Agreement"), dated __, 1997, among the Company, the Selling
Stockholder and the other Original Owners named therein, has been duly
authorized, executed and delivered by each of the parties thereto and that each
of the parties thereto has the full power, authority and legal right to enter
into and perform its obligations thereunder.
Based upon and subject to the foregoing, we are of opinion that:
1. The Stockholders' Agreement constitutes the legal, valid and
binding obligation of the Selling Stockholder enforceable against the
Selling Stockholder in accordance with its terms except as (a) enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting enforcement of creditors'
rights generally and (b) enforcement thereof is subject to general
principles of
55
3
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law);
2. the execution and delivery by the Selling Stockholder of, and the
performance by the Selling Stockholder of its obligations under, the
Underwriting Agreement will not contravene any provision of the federal
law of the United States or the law of the State of New York, except for
any contraventions as would not materially and adversely affect the
consummation by the Selling Stockholder of the transactions contemplated
by the Underwriting Agreement;
3. no consent, approval, authorization or order of, or qualification
with, any governmental body or agency of the United States of America or
the State of New York is required for the performance by the Selling
Stockholder of its obligations under the Underwriting Agreement, except as
may be required by the Securities Act or the securities or Blue Sky laws
of the State of New York; and
4. to the extent the matter is governed by the law of the State of
New York, and assuming that each of the Underwriters acquired its interest
in such Shares delivered to it in good faith and without notice of any
adverse claims, upon delivery of such Shares to such Underwriter endorsed
to it or in blank in the State of New York, such Underwriter has acquired
all of the Selling Stockholder's rights in such Shares and acquired its
interest in such Shares free of any adverse claims (within the meaning of
Section 8-302 of the Uniform Commercial Code as in effect on the date
hereof in the State of New York).
This letter is being rendered to you at the request of [Name of
Selling Stockholder] pursuant to Section 6(g) of the Underwriting Agreement.
This letter is being furnished to you solely for your benefit, and is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,