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Exhibit 1.2
▇.▇. ▇▇▇▇▇▇▇ & CO., LTD.
COMMON SHARES
(PAR VALUE $0.001 PER SHARE)
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
December __, 2000
▇▇▇▇▇▇▇ Sachs International,
Lazard Capital Markets,
Bear, ▇▇▇▇▇▇▇ International Limited,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.,
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman ▇▇▇▇▇ International,
Peterborough Court,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇.
Ladies and Gentlemen:
Certain shareholders named in Schedule II hereto (the "Selling
Shareholders") of ▇.▇. ▇▇▇▇▇▇▇ & Co., Ltd., a Bermuda corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 2,240,803 shares (the "Firm Shares") and WPS II, Inc., a Delaware corporation
("WPS II"), one of the Selling Shareholders, at the election of the
Underwriters, to sell up to 336,120 additional shares (the "Optional Shares"),
par value $0.001 per share ("Stock"), of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares").
It is understood by all the parties that the Company and the Selling
Shareholders are concurrently entering into an agreement (the "U.S. Underwriting
Agreement"), providing for the sale by the Selling Shareholders of up to a total
of 10,307,694 shares of Stock (the "U.S. Shares"), including the overallotment
option thereunder, through arrangements with certain underwriters in the United
States (the "U.S. Underwriters"), for whom ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Lazard Freres &
Co. LLC, Bear, ▇▇▇▇▇▇▇ & Co., Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Barney Inc. are acting as representatives in the United States. Anything herein
or therein to the contrary notwithstanding, the respective closings under this
Agreement and the U.S. Underwriting Agreement are hereby made expressly
conditional on one another.
The Underwriters hereunder and the U.S. Underwriters are simultaneously
entering into an Agreement between U.S. and International Underwriting
Syndicates (the "Agreement between Syndicates") which provides, among other
things, for the transfer of shares of Stock between the two syndicates and for
consultation by the Representatives hereunder with ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. prior to
exercising the rights of the Underwriters under Section 7 hereof.
Two forms of prospectus are to be used in connection with the offering
and sale of shares of Stock contemplated by the foregoing, one relating to the
Shares hereunder and the other relating to the U.S. Shares. The latter form of
prospectus will be identical to the former except for certain substitute pages.
Except as used in Sections 2, 3, 4, 9 and 11 herein, and except as the context
may otherwise require, references hereinafter to the Shares shall include all of
the shares of Stock which may be sold pursuant to either this Agreement or the
U.S. Underwriting Agreement. References herein to any prospectus whether in
preliminary or final form, and whether as amended or supplemented, shall include
both the U.S. and the international versions thereof.
In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including the related
definitions of terms, which are also used elsewhere herein) and, for purposes of
applying the same, references (whether in these precise words or their
equivalent) in the incorporated provisions to the "Underwriters" shall be to the
Underwriters hereunder, to the "Shares" shall be to the Shares hereunder as just
defined, to "this Agreement" (meaning therein the U.S. Underwriting Agreement)
shall be to this Agreement (except where this Agreement is already referred to
or as the context may otherwise require) and to the representatives of the
Underwriters or to ▇▇▇▇▇▇▇, Sachs & Co. shall be to the addressees of this
Agreement and to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("GSI"), and, in general, all such
provisions and defined terms shall be applied mutatis mutandis as if the
incorporated provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Shareholders hereby make
to the Underwriters the same respective representations, warranties and
agreements as are set forth in Section 1 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a) each of
the Selling Shareholders agrees, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Shareholders, at a purchase price
per Share of $............, the number of Firm Shares (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying the aggregate
number of Firm Shares to be sold by each of the Selling Shareholders as set
forth opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth
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opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the aggregate number of Firm Shares to be purchased by all the
Underwriters from all the Selling Shareholders hereunder and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, WPS ll agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from WPS ll, at the purchase price per share set forth in clause (a) of
this Section 2, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by a
fraction the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
WPS ll hereby grants to the Underwriters the right to purchase at their
election up to 336,120 Optional Shares, at the purchase price per Share set
forth in the paragraph above, for the sole purpose of covering sales of Shares
in excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised by written notice from you to the Attorney-in-Fact of
WPS ll, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Attorney-in-Fact of WPS ll
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus and in the forms of Agreement among
Underwriters (International Version) and Selling Agreements, which have been
previously submitted to the Company by you. Each Underwriter hereby makes to and
with the Company and the Selling Shareholders the representations and agreements
of such Underwriter as a member of the selling group contained in Sections 3(d)
and 3(e) of the form of Selling Agreements.
4. (a)The Shares to be purchased by each Underwriter hereunder, in
registered form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, Sachs & Co. may request upon at least forty-eight hours'
notice to the Selling Shareholders prior to the Time of Delivery (as defined
below), shall be delivered by or on behalf of the Selling Shareholders to
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., through the facilities of The Depository Trust Company
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same- day) funds to the account specified by the Company to ▇▇▇▇▇▇▇, Sachs &
Co. at least forty-eight hours in advance. The Company and the Selling
Shareholders will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC or
its designated custodian. No delivery or transfer of Shares to be purchased
hereunder at a Time of Delivery shall be effective until payment of the purchase
price for such Shares has been made in accordance with the terms of this
Agreement.
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The time and date of such delivery and payment shall be, with
respect to the Firm Shares, 9:30 a.m., New York City time, on December __, 2000
or such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Selling Shareholders
may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m.,
New York City time, on the date specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written
notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the Underwriters' election to purchase
such Optional Shares, or such other time and date as ▇▇▇▇▇▇▇, Sachs & Co. and
the Selling Shareholders may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "First Time of Delivery", such
time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 of the U.S. Underwriting
Agreement, including the cross-receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 7(t) of the U.S.
Underwriting Agreement, will be delivered at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and the
Shares will be delivered as specified in paragraph (a) above, all at such Time
of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New
York City time, on the New York Business Day next preceding each Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company and each of the Selling Shareholders hereby makes with
the Underwriters the same agreements as are set forth in Section 5 of the U.S.
Underwriting Agreement, which Section is incorporated herein by this reference.
6. The Company, each of the Selling Shareholders, and the Underwriters
hereby agree with respect to certain expenses on the same terms as are set forth
in Section 6 of the U.S. Underwriting Agreement, which Section is incorporated
herein by this reference.
7. Subject to the provisions of the Agreement between Syndicates, the
obligations of the Underwriters hereunder shall be subject, in their discretion,
at each Time of Delivery to the condition that all representations and
warranties and other statements of the Company and the Selling Shareholders
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company and the Selling Shareholders shall have performed all of their
respective obligations hereunder theretofore to be performed, and additional
conditions identical to those set forth in Section 7 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference.
8. (a)(i) The Company and each of the Selling Shareholders set forth on
Schedule III (each a "Full Indemnity Shareholder"), jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar
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as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Full Indemnity Selling
Shareholders shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through GSI expressly
for use therein; provided, further, that the liability of a Full Indemnity
Selling Shareholder pursuant to this subsection (a)(i) shall not exceed the sum
(the "Limited Amount") of (i) the product of the number of Shares sold by such
Full Indemnity Selling Shareholder and the per Share proceeds, before expenses,
to the Selling Shareholders as set forth in the table on the cover page of the
Prospectus and (ii) such Selling Shareholder's pro rata share of the Underwriter
Expenses (as defined in Section 6 of the U.S. Underwriting Agreement).
(ii) Each of the Selling Shareholders not set forth on
Schedule III (each a "Limited Indemnity Selling Shareholder") will
severally indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriters may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Limited Indemnity Selling Shareholder
expressly for use therein; and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that such Limited
Indemnity Selling Shareholder shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon an in conformity with written information
furnished to the Company by any Underwriter through GSI expressly for
use therein; provided, further, that the liability of a Limited
Indemnity Selling Shareholder pursuant to this subsection (a)(ii) shall
not exceed the
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sum of (i) the product of the number of Shares sold by such Limited
Indemnity Selling Shareholder and the per Share proceeds, before
expenses, to the Selling Shareholders as set forth in the table on the
cover page of the U.S. Prospectus and (ii) such Limited Indemnity
Selling Shareholder's pro rata share of the Underwriter Expenses.
(b) Each Underwriter will indemnify and hold harmless the Company and
each Selling Shareholder against any losses, claims, damages or liabilities to
which the Company or such Selling Shareholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through GSI expressly for use
therein; and will reimburse the Company and each Selling Shareholder for any
legal or other expenses reasonably incurred by the Company or such Selling
Shareholder in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under either of such subsections for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation; provided, that, if such indemnified
party shall have been advised by counsel that there may be one or more legal
defenses available to such indemnified party which are different from or
additional to those available to the indemnifying party, then the indemnifying
party shall not have the right to assume the defense of such action in the event
that the indemnified party elects to employ separate counsel at the expense of
the indemnified party; it being understood however, that in no event shall the
indemnifying party be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but
substantially similar or related
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actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party. No indemnifying party shall be liable under this Section 8 for any
settlement of any claim or action effected without its consent which consent
shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, each of the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
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 which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
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the provisions of this subsection (d), 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 which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this subsection
(d), no Selling Shareholder shall be required to contribute any amount in excess
of its Limited Amount. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Shareholders under
this Section 8 shall be in addition to any liability which the Company and the
respective Selling Shareholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Selling
Shareholders and to each person, if any, who controls the Company or any Selling
Shareholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Shareholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Shareholders
that you have so arranged for the purchase of such Shares, or the Selling
Shareholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Shareholders shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Shareholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, then the
Selling Shareholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
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non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Shareholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all the Shares to be purchased at such Time of Delivery, or if the Selling
Shareholders shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to the Second
Time of Delivery, the obligations of the Underwriters to purchase and of the
Selling Shareholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Shareholders, except for the expenses to be borne by the Company
and the Selling Shareholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution provisions contained in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders or any officer
or director or controlling person of the Company, or any officer or director or
controlling person of any Selling Shareholder, and shall survive delivery of and
payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof
or if the U.S. Underwriting Agreement is terminated pursuant to Section 9
thereof, neither the Company nor the Selling Shareholders shall then be under
any liability to any Underwriter except as provided in Sections 6 and 8 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of the
Selling Shareholders as provided herein, each of the Selling Shareholders pro
rata (based on the number of Shares to be sold by such Selling Shareholder
hereunder) will reimburse the Underwriters through GSI for all out-of-pocket
expenses approved in writing by GSI, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company and
the Selling Shareholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by GSI on behalf of you as the Representatives of the
Underwriters; and in all dealings with any Selling
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Shareholder hereunder, you and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of such Selling
Shareholder made or given by any or all of the Attorneys-in-Fact for such
Selling Shareholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Underwriters in care of GSI, Peterborough Court,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, Attention: Equity Capital Markets,
Telex No. 94012165, facsimile transmission No. (071) 774-1550; if to any Selling
Shareholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for such Selling Shareholder at its address set forth in Schedule V
of the U.S. Underwriting Agreement; if to the Company shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement, Attention: Managing Director; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
or the Selling Shareholders by GSI upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Shareholders and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and the Selling Shareholders and each person who controls the
Company, any Selling Shareholder or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. Each of the parties hereto irrevocably (i) agrees that any legal
suit, action or proceeding against the Company or the Selling Shareholders
brought by any Underwriter or by any person who controls any Underwriter arising
out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any state or federal court located in the Borough of Manhattan,
The City of New York, New York (each, a "New York Court"), (ii) waives, to the
fullest extent it may effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such proceeding and (iii) submits
to the exclusive jurisdiction of such courts in any such suit, action or
proceeding. Each of the Company and each of the Selling Shareholders, hereby
appoints ▇.▇. ▇▇▇▇▇▇▇ & Co., Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
as its authorized agent (the "Authorized Agent") upon whom process may be served
in any such action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. Each of the Company and each of
the Selling Shareholders represents and warrants that the Authorized Agent has
agreed to act as such
10
11
agent for service of process and agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent and written notice of such service to the
Company shall be deemed, in every respect, effective service of process upon the
Company and the Selling Shareholders as the case may be.
16. In respect of any judgment or order given or made for any amount
due hereunder by the Company or any such Selling Shareholder that is expressed
and paid in a currency (the "judgment currency") other than United States
dollars, the Company or such Selling Shareholder, as the case may be, will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and the Selling
Shareholders and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 6 counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Shareholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters (International Version), the
form of which shall be submitted to the Company and the Selling Shareholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
11
12
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Shareholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
▇.▇. ▇▇▇▇▇▇▇ & Co., Ltd.
[Common Seal By:-----------------------------------
of the Company] Name:
Title:
WPS II, Inc.
By:-----------------------------------
Name:
Title:
-----------------------------------
Name:
As Attorney-in-Fact acting on behalf of each
of the Selling Shareholder named in Schedule
II to this Agreement.
12
13
Accepted as of the date hereof
in New York, New York
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Lazard Capital Markets
Bear, ▇▇▇▇▇▇▇ International Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
By: --------------------------------------
(Attorney-in-fact)
On behalf of each of the Underwriters
13
14
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
TO BE PURCHASED EXERCISED
UNDERWRITER
▇▇▇▇▇▇▇ Sachs International...................................
Lazard Capital Markets........................................
Bear, ▇▇▇▇▇▇▇ International Limited...........................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc......................................
[Names of other Underwriters].................................
Total
15
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
The Selling Shareholders (a):
WPS II, Inc. ................................................. 336,120
▇▇▇▇▇ ▇. and Michaelane Aarons, Joint Tenants................. 0
▇▇▇▇▇ ▇. ▇▇▇▇▇▇............................................... 0
▇▇▇▇▇▇▇ ▇▇▇▇▇................................................. 0
▇▇▇▇▇ ▇▇▇▇▇▇.................................................. 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇............................................ 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustees 0
u/a ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1997 Grantor Trust................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustees 0
u/a ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1997 Grantor Trust....................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇............................................... 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.............................................. 0
▇▇▇▇▇▇ ▇. Cart................................................ 0
▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Joint Tenants..................... 0
▇▇▇▇▇▇ ▇▇▇▇▇▇▇................................................ 0
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇............................................... 0
▇▇▇▇▇ ▇▇▇▇▇................................................... 0
Europa International Ltd...................................... 0
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.................................. 0
▇▇▇▇ ▇▇▇▇▇▇................................................... 0
First Long Island Holdings LLC................................ 0
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇........................................... 0
16
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇................................... 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇............................................. 0
The Graymer Foundation........................................ 0
▇▇▇▇▇ ▇▇▇▇▇▇▇▇................................................ 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇........................................... 0
▇▇▇▇▇ ▇▇▇▇▇▇.................................................. 0
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇............................................. 0
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.......................................... 0
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇. 0
▇▇▇▇▇▇▇▇, Trustees u/a f/b/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇................
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇. 0
▇▇▇▇▇▇▇▇, Trustees u/a f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.................
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇. 0
▇▇▇▇▇▇▇▇, Trustees u/a f/b/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇...................
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇............................................. 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇............................................ 0
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Trustee u/a ▇▇▇▇▇ ▇▇▇▇▇▇ 0
▇▇▇▇ Revocable Trust dtd 3/15/60. ............................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇............................................... 0
▇▇▇▇▇▇ ▇. ▇▇▇▇................................................ 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇............................................... 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇............................................ 0
P. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.......................................... 0
▇▇▇▇▇ ▇. ▇▇▇▇▇................................................ 0
▇▇▇▇ ▇. ▇▇▇▇▇................................................. 0
▇▇▇▇▇▇ ▇▇▇▇▇▇................................................. 0
17
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
▇▇▇▇▇ ▇▇▇▇▇................................................... 0
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.......................................... 0
▇▇▇▇ ▇▇▇▇▇▇▇▇▇................................................ 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.......................................... 0
▇▇▇▇▇▇ Guaranty Trust Company of New York
and ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustees u/a dtd. 12/23/92
f/b/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.......................................... 0
▇▇▇▇▇▇ Guaranty Trust Company of New York
and ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustees u/a dtd. 12/23/92
f/b/o ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇....................................... 0
▇▇▇▇▇▇ Guaranty Trust Company of New York
and ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustees u/a dtd. 12/23/92 0
f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇........................................
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.............................................. 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇............................................... 0
▇▇▇▇▇▇ ▇▇▇▇▇▇▇................................................ 0
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.............................................. 0
▇▇▇▇▇ ▇▇▇▇▇▇▇................................................. 0
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.............................................. 0
▇▇▇▇▇▇ ▇. ▇▇▇▇................................................ 0
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee of ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Trust.................................................. 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇........................................... 0
▇▇▇▇ ▇. ▇▇▇▇▇▇▇............................................... 0
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇............................................. 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇............................................ 0
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.............................................. 0
18
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
▇▇▇▇▇ ▇▇▇▇.................................................... 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇............................................ 0
▇▇▇▇▇▇▇▇ ▇▇▇▇▇................................................ 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇........................................ 0
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.............................................. 0
▇▇▇▇▇▇ ▇▇▇.................................................... 0
TPR & Partners N.V............................................ 0
TPR Curacao N.V............................................... 0
▇▇▇▇▇▇ ▇▇▇▇▇.................................................. 0
▇▇▇▇ ▇. ▇▇▇▇.................................................. 0
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇............................................. 0
▇▇▇▇ ▇. ▇▇▇▇▇▇▇............................................... 0
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.............................................. 0
E. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇............................................ 0
Total 2,240,803 336,120
(a) Each Selling Shareholder has appointed ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, and each of them, as the Attorneys-in-Fact for such Selling
Shareholder.
19
SCHEDULE III
FULL INDEMNITY SELLING SHAREHOLDERS
WPS II, Inc.
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇