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THE SEAGRAM COMPANY LTD.
COMMON SHARES
U.S. Underwriting Agreement
June -, 1999
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
PaineWebber Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇▇ & Partners L.P.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
The Seagram Company Ltd., a Canadian corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 19,000,000 common shares and, at the election of the Underwriters, up to
2,850,000 additional common shares of the Company, and the shareholders of the
Company named in Schedule II hereto (the "Selling Shareholders") propose,
subject to the terms and conditions stated herein, to sell to the Underwriters
an aggregate of 7,000,000 common shares. The aggregate of 26,000,000 common
shares to be sold by the Company and the Selling Shareholders is herein called
the "Firm Shares", and the aggregate of 2,850,000 additional common shares to be
sold by the Company is herein called the "Optional Shares". 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 and agreed to by all parties that (i) the Company
is concurrently entering into an agreement (the "Canadian Underwriting
Agreement") providing for the sale
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by the Company of up to a total of 8,625,000 common shares (the "Canadian
Shares"), including the overallotment option thereunder, through arrangements
with certain underwriters in Canada (the "Canadian Underwriters"), for whom
▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada, CIBC World Markets Inc., RBC Dominion Securities Inc. and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. are acting as lead managers, and (ii) the Company and the
Selling Shareholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Company
and the Selling Shareholders of up to a total of 4,025,000 common shares (the
"International Shares"), including the overallotment option thereunder, through
arrangements with certain underwriters outside the United States and Canada (the
"International Underwriters"), for whom ▇▇▇▇▇▇▇ Sachs International, Bear,
▇▇▇▇▇▇▇ International, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited are acting as representatives of the International
Underwriters. Anything herein to the contrary notwithstanding, the respective
closings under this Agreement, the Canadian Underwriting Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder, the Canadian Underwriters and the
International Underwriters are simultaneously entering into an Agreement among
U.S., Canadian and International Underwriting Syndicates (the "Agreement among
Syndicates") which provides, among other things, for the transfer of common
shares among the three syndicates. Four forms of prospectus are to be used in
connection with the offering and sale of common shares contemplated by the
foregoing, one relating to the Shares hereunder and two (one French and one
English language version) relating to the Canadian Shares and one relating to
the International Shares. The form of prospectus relating to the International
Shares will be substantially identical to the prospectus relating to the Shares,
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 the common shares which may be sold
pursuant to either this Agreement, the Canadian Underwriting Agreement or the
International Underwriting Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File No. 333-78393) (the
"Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto but including all documents incorporated by reference
in the prospectus contained therein, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering or offerings (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant
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to Rule 424(a) of the rules and regulations of the Commission under the
Act is hereinafter called a "Preliminary Prospectus"; the various parts
of the Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including (i) the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective and (ii) the documents incorporated by reference in
the prospectus contained in the Initial Registration Statement at the
time such part of the Initial Registration Statement became effective,
each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "Prospectus"; and any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Initial Registration Statement that is incorporated by reference in the
Registration Statement).
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein or
by a Selling Shareholder expressly for use in the preparation of the
answers therein to Item 7 of Form S-3.
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents,
as of their respective effective or filing dates, contained an untrue
statement of a material fact or omitted to state a material fact
required to
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be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not, as
of their respective effective or filing dates, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall apply only to documents so filed and incorporated by reference
during the period that a prospectus relating to the Shares is required
to be delivered in connection with sales of such Shares by any
underwriters (such period being hereinafter sometimes referred to as
the "prospectus delivery period"), and provided further, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein or by a Selling Shareholder
expressly for use in the preparation of the answers therein to Item 7
of Form S-3.
(iv) The Registration Statement, as of its effective date,
conforms, and the Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus, as of their respective
effective or filing dates, will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall apply
only to amendments or supplements filed or made during the prospectus
delivery period, and provided, further, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly
for use therein or by a Selling Shareholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-3.
(v) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which is
material to the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
material decrease in the capital stock or increase in long-term debt of
the Company and its subsidiaries taken as a whole, or any material
adverse change, or any development involving a prospective
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material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(vi) The Company has been duly incorporated and is validly existing
as a corporation in good standing (in this section references to the
good standing of any Canadian corporation refer only to the fact that
such corporation has a current certificate of compliance) under the
laws of Canada, with power and authority to own its properties and
conduct its business as described in the Prospectus. Each of the
following subsidiaries of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, such subsidiaries being hereinafter
sometimes referred to as the "Specified Subsidiaries": ▇.▇. ▇▇▇▇▇▇▇
Corp., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc., JES Developments, Inc., PolyGram
N.V. and Universal Studios, Inc.;
(vii) All of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
of the Specified Subsidiaries have been duly and validly authorized and
issued, are fully paid and non-assessable and, except for PolyGram N.V.
and Universal Studios, Inc., are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
The Company indirectly owns approximately 91.9% of the outstanding
shares of each of PolyGram N.V. and Universal Studios, Inc.;
(viii) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder, under the Canadian Underwriting Agreement
and under the International Underwriting Agreement have been duly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the common shares
of the Company contained in the Prospectus;
(ix) The issue and sale of the Shares to be sold by the Company
hereunder, under the Canadian Underwriting Agreement and under the
International Underwriting Agreement and the compliance by the Company
with all of the provisions of this Agreement, the Canadian Underwriting
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a material breach of any of the terms or
provisions of, or constitute a material default under, or result in the
creation or imposition of any material lien, charge and encumbrance
upon any of the property or assets of the Company or any of its
subsidiaries pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument material to the
operations of the Company to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Articles of
Amalgamation or the General By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of
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their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Shares or the consummation by the Company of the transactions
contemplated by this Agreement, the Canadian Underwriting Agreement and
the International Underwriting Agreement, except the registration under
the Act of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state,
provincial or other foreign securities, or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters,
the Canadian Underwriters and the International Underwriters;
(x) Other than as set forth in the Prospectus, in the international
prospectus or in the Canadian prospectuses, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, are reasonably expected to have
a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others; and
(xi) PricewaterhouseCoopers LLP and KPMG Accountants N.V., who have
certified certain financial statements of the Company and its
subsidiaries, are each independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
(b) Each of the Selling Shareholders represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Shareholder of this
Agreement, the International Underwriting Agreement and the Power of
Attorney hereinafter referred to, and for the sale and delivery of the
Shares to be sold by such Selling Shareholder hereunder and under the
International Underwriting Agreement, have been obtained; and such
Selling Shareholder has full right, power and authority to enter into
this Agreement, the International Underwriting Agreement and the Power
of Attorney and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Shareholder hereunder and under the International
Underwriting Agreement;
(ii) The sale of the Shares to be sold by such Selling Shareholder
hereunder and under the International Underwriting Agreement and the
compliance by such Selling Shareholder with all of the provisions of
this Agreement, the International Underwriting Agreement and the Power
of Attorney and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder is bound, or to which any of
the property or assets of such Selling Shareholder is subject, nor will
such action result
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in any violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over such Selling Shareholder or the property of such
Selling Shareholder;
(iii) Such Selling Shareholder has, and immediately prior to the
Time of Delivery (as defined in Section 4 hereof) such Selling
Shareholder will have, good and valid title to the Shares to be sold by
such Selling Shareholder hereunder, and under the International
Underwriting Agreement, free and clear of all liens, encumbrances,
equities or claims; and, upon delivery of such Shares and payment
therefor pursuant hereto and thereto, good and valid title to such
Shares, free and clear of all liens, encumbrances, equities or claims,
will pass to the several Underwriters or the International
Underwriters, as the case may be;
(iv) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, such Selling Shareholder will not offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder or under the
International Underwriting Agreement or as otherwise disclosed in the
Prospectus, any securities of the Company that are substantially
similar to the Shares, including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right
to receive, common shares of the Company or any such substantially
similar securities (other than (A) upon the conversion or exchange of
convertible or exchangeable securities outstanding as of the date of
this Agreement or (B) to a ▇▇▇▇▇▇▇▇ Trust Permitted Transferee (as such
term is defined in Schedule III hereto) which has entered into
agreements, in form and substance satisfactory to the Underwriters and
their counsel, to abide by the provisions of this Section 1(b)(iv)),
without the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.;
(v) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vi) To the extent that any statements or omissions made in the
Registration Statement, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Shareholder
expressly for use therein, the Registration Statement did, and the
Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will, insofar as
such statements are concerned, conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading insofar as such
statements are concerned;
(vii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will
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deliver to you prior to or at the First Time of Delivery (as
hereinafter defined) a properly completed and executed United States
Treasury Department Form W-8 or W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof);
(viii) Such Selling Shareholder has duly executed and delivered a
Power of Attorney, in the form agreed to by the Underwriters, the
Company and the Selling Shareholders (the "Power of Attorney"),
appointing the persons indicated in Schedule II hereto, and each of
them, as such Selling Shareholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this
Agreement and the International Underwriting Agreement on behalf of
such Selling Shareholder, to determine the purchase price to be paid by
the several Underwriters and the International Underwriters to the
Selling Shareholder as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Shareholder hereunder
and otherwise to act on behalf of such Selling Shareholder in
connection with the transactions contemplated by this Agreement and the
International Underwriting Agreement; and
(ix) The appointments by such Selling Shareholder of the
Attorneys-in-Fact by the Power of Attorney for purposes of the
offerings contemplated in this Agreement and the International
Underwriting Agreement are irrevocable; the obligations of the Selling
Shareholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling
Shareholder or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such estate
or trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the occurrence of
any other event; if any individual Selling Shareholder or any such
executor or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should
occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the
Selling Shareholder in accordance with the terms and conditions of this
Agreement and of the International Underwriting Agreement; and actions
taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall
be as valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) the
Company and 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 the Company and 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 the Company and
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 opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is
the aggregate number
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of Firm Shares to be purchased by all of the Underwriters from the Company and
each of 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, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, 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.
The Company, to the extent indicated in Schedule II hereto, hereby
grants to the Underwriters the right to purchase at their election up to
2,850,000 Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering sales in excess of the number
of Firm Shares. Any such election to purchase Optional Shares may be exercised
only by written notice from you to the Company, 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 Attorneys-in-Fact otherwise agree in writing, no earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you 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 herein or in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours' prior
notice to the Company and each of the Selling Shareholders shall be delivered by
or on behalf of the Company and each of the Selling Shareholders to ▇▇▇▇▇▇▇,
Sachs & Co., including at the option of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & 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 and each of the Selling Shareholders 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 (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 10:00 a.m., New
York City time, on June __, 1999 or such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., the Company and the Selling Shareholders may agree upon in writing, and,
with respect to the Optional Shares, 10:00 a.m., New York City time, on the date
specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co. of the Underwriter's election to purchase such Optional Shares, or
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such other time and date as ▇▇▇▇▇▇▇, Sachs & Co. and the Company 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 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
each Time of Delivery. A meeting will be held at the Closing Location at ___
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 agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus prior to
the last Time of Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Shares; to advise you, promptly after it receives notice thereof,
of the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdiction in the United States as you may request and
to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long
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as may be necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to noon New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in such quantities as you may
reasonably request, and, if the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Shares and if at such time any
events shall have occurred as a result of which such Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act or the Exchange Act, to notify you and upon your
request to prepare and file with the Commission an amendment, supplement or
document which will correct such statement or omission or effect such compliance
and to furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably request of any
such amended Prospectus or supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any such Shares at
any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement, earnings statements of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as otherwise set
forth in the Prospectus or provided hereunder, under the Canadian Underwriting
Agreement and under the International Underwriting Agreement, any securities of
the Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, common shares of the Company or any such
substantially similar securities (other than [(A) the issuance of 2 million
common shares to one or more of the Selling Shareholders prior to the First Time
of Delivery, or (B)] pursuant to employee stock option plans existing on, or
upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without your prior written
consent;
(f) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement, the Canadian Underwriting Agreement and the
International
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Underwriting Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(g) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange (the "Exchange"); and
(h) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the International Underwriting
Agreement, the Agreement among Syndicates, the Selling Agreements, the Blue Sky
Memorandum, if any, and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on the New York Stock Exchange;
(v) the cost of preparing stock certificates and (vi) the cost and charges of
any transfer agent or registrar; and all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. Each Selling Shareholder will pay or
cause to be paid all costs and expenses incident to the performance of such
Selling Shareholder's obligations hereunder which are not otherwise specifically
provided for in this Section, including (i) any fees and expenses of counsel for
such Selling Shareholder, (ii) such Selling Shareholder's pro rata share of the
fees and expenses of the Attorneys-in-Fact and the Custodian and (iii) any taxes
incident to the sale and delivery of the Shares to be sold by such Selling
Shareholder to the Underwriters hereunder. In connection with clause (c) (iii)
of the preceding sentence, ▇▇▇▇▇▇▇, Sachs & Co. agrees to pay any New York State
stock transfer tax, and each of the Selling Shareholders agrees to reimburse
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for associated carrying costs if such tax payment is not
rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that the Company shall bear, and the Selling
Shareholder shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares pursuant to this Agreement, and that, except as provided in this Section,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
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7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and each of the
Selling Shareholders shall have performed all of its and their obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel for the Underwriters, and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ S.E.N.C., Canadian counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time
of Delivery, with respect to the matters, in the case of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
covered in paragraphs (iii) and (vii) of subsection (d) below, and, in
the case of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, in respect of the Registration
Statement and the Prospectus as well as such other related matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters (▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ being entitled to rely, as
to all matters of Canadian law, upon the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S.E.N.C. described above and upon the opinion of Canadian counsel
described in paragraph (d) of this Section 7, and, as to all matters of
law of the State of Indiana, upon an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇);
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel for the Company, shall
have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you (such counsel being
entitled to state that they have assumed that any document referred to
in their opinion and executed by the Company has been duly authorized,
executed and delivered pursuant to Canadian law and being entitled to
rely, as to all matters of Canadian law, on the opinion of Canadian
counsel described in paragraph (d) of this Section 7) (such counsel
also being entitled to rely in respect of matters of law other than of
United States federal or New York law on opinions of local counsel of
the Company or its subsidiaries and as to matters of fact upon
certificates of public officials and of officers of the Company or its
subsidiaries, provided that such counsel shall state that they believe
that both you and they are justified in relying upon such opinions and
certificates), to the effect that:
(i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Sons, Inc. has been duly incorporated
and is validly existing as a corporation under the laws of the State of
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14
Indiana; and each of ▇.▇. ▇▇▇▇▇▇▇ Corp., JES Developments, Inc. and
Universal Studios, Inc. has been duly incorporated and is validly
existing as a corporation and in good standing under the laws of the
State of Delaware;
(ii) All of the outstanding shares of capital stock of ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ & Sons, Inc. have been duly authorized by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
& Sons Inc. and are validly issued, are fully paid and non-assessable
and are owned indirectly by the Company, to the knowledge of such
counsel, free and clear of any adverse claim; all of the outstanding
shares of capital stock of ▇.▇. ▇▇▇▇▇▇▇ Corp. have been duly authorized
by ▇.▇. ▇▇▇▇▇▇▇ Corp. and are validly issued, fully paid and
non-assessable and are owned indirectly by the Company, to the
knowledge of such counsel, free and clear of any adverse claim; and all
of the outstanding shares of capital stock of JES Developments, Inc.
have been duly authorized by JES Developments Inc. and are validly
issued, are fully paid and non-assessable, and are owned indirectly by
the Company, to the knowledge of such counsel, free and clear of any
adverse claim; and all the outstanding shares of capital stock of
Universal Studios, Inc. have been duly authorized by Universal Studios,
Inc. and are validly issued, are fully paid and non-assessable, and
such that are owned indirectly by the Company, are to the knowledge of
such counsel, owned free and clear of any adverse claim;
(iii) To such counsel's knowledge and other than as set forth
or contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which are required to be described in the
Prospectus which are not described as required; and to such counsel's
knowledge no such proceedings have been asserted by governmental
authorities or by others;
(iv) The issue and sale of the Shares being delivered at such
Time of Delivery to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
International Underwriting Agreement will not breach or result in a
default under any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument filed as an exhibit to the Registration
Statement or any document or filing incorporated by reference therein
to which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, nor, with respect to the United States and the States of
New York and Indiana, will such action result in any violation of any
statute or, to the knowledge of such counsel, any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties;
(v) With respect to the United States and the States of New
York and Indiana, no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is
14
15
required for the issue and the sale by the Company of the Shares or the
compliance by the Company with the provisions of this Agreement and the
International Underwriting Agreement, except such that have been
obtained or made under the Act and the Exchange Act, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters and the
International Underwriters;
(vi) The Company is not an "investment company", within the
meaning of the Investment Company Act of 1940, as amended;
(vii) Such counsel does not know of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus or required to be described in the Registration
Statement or in the Prospectus which are not filed or incorporated by
reference or described as required; and
(viii) Such opinion may also include a paragraph to the
effect that such counsel has not independently verified the accuracy,
completeness or fairness of the statements made or included in the
Registration Statement, the Prospectus and the documents incorporated
by reference in the Prospectus and that such counsel takes no
responsibility therefor. Such opinion may also state that in the course
of the preparation by the Company of the Registration Statement and the
Prospectus, such counsel participated in conferences with certain
officers and employees of the Company and with representatives of the
independent accountants of the Company. Such opinion may state that
such counsel did not prepare the documents incorporated by reference in
the Prospectus; however, such counsel discussed such documents with the
Company prior to their filing with the Commission, and that based upon
such counsel's examination of the Registration Statement, the
Prospectus and the documents incorporated by reference in the
Prospectus, such counsel's investigations made in connection with the
preparation of the Registration Statement and the Prospectus and such
counsel's participation in the conferences referred to above, (i) such
counsel is of the opinion that the Registration Statement and any
amendment thereto made prior to such Time of Delivery, as of its
respective effective date, and the Prospectus and any amendment or
supplement thereto prior to such Time of Delivery, as of their
respective issue dates, complied as to form in all material respects
with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder, and (ii) such counsel has no
reason to believe that the Registration Statement or any amendment
thereto (including the documents incorporated by reference in the
Prospectus) made by the Company prior to such Time of Delivery, as of
its respective effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the
15
16
statements therein not misleading or that, as of such Time of Delivery,
either the Registration Statement or the Prospectus or any amendment or
supplement thereto prior to such Time of Delivery (including the
documents incorporated by reference therein), contains any untrue
statement of a material fact or omits to state any material fact
necessary to make the statements therein, in light of the circumstances
in which the statements were made, not misleading, except that in each
case such counsel need express no opinion with respect to the financial
statements or other financial data contained or incorporated by
reference in the Registration Statement or any amendment thereto, or in
the Prospectus and any amendment or supplement thereto (including the
documents incorporated by reference therein) prior to such Time of
Delivery.
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S.E.N.C., Canadian counsel for the
Company, shall have furnished to you their written opinion, dated the
Time of Delivery, in form and substance satisfactory to you (such
counsel being entitled to rely, as to all matters of United States or
United States state law, solely upon the opinion of United States
counsel described in paragraph (c) of this Section 7) (such counsel
also being entitled to rely in respect of matters of law other than
matters of Canadian federal or Quebec law solely upon opinions of local
counsel and as to matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state
that they believe both they and you are justified in relying thereon)
to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of Canada
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has
received a certificate of compliance under the Canada Business
Corporations Act;
(ii) The Company has been duly qualified for the
transaction of business under the laws of the Province of
Quebec;
(iii) The Company has an authorized capitalization as
set forth in the Prospectus, and has taken all corporate
actions or proceedings such that all of the issued common
shares of the Company (including the Shares being delivered at
such Time of Delivery), have been duly and validly authorized
and issued as fully paid and non-assessable; and the Shares
conform to the description of the Common shares contained in
the Prospectus;
(iv) To such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending in the Province of Quebec to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject, which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate be, in the opinion of such counsel, material to the
Company and its
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17
subsidiaries taken as a whole; and to such counsel's
knowledge, no such proceedings have been threatened by
governmental authorities or by others;
(v) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by
the Company;
(vi) The issue and sale of the Shares being delivered
at such Time of Delivery to be sold by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement will
not breach or result in a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument filed as an exhibit to the Registration Statement
or any document or filing incorporated by reference therein to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in
any violation of the provisions of the charter documents, as
amended, or the by-laws of the Company or, with respect to
Canada or the Province of Quebec, any statute or, to the
knowledge of such counsel any order, rule or regulation of any
court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their
properties;
(vii) No filing or registration of the Registration
Statements, any Preliminary Prospectus or the Prospectus is
necessary under the laws of Canada or the Province of Quebec,
nor is any consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of Canada or the Province of
Quebec required, for the issue and sale outside Canada of the
Shares, other than those which have been obtained or made;
(viii) No tax or stamp duty under the laws of Canada
or the Province of Quebec is payable in connection with the
creation, issue and delivery to the Underwriters of the
Shares;
(ix) Under the laws of Canada and of the Province of
Quebec currently in force and under current practice of the
courts of the Province of Quebec at the date of such opinion,
such courts would give effect to the choice of New York law as
the law governing this Agreement and the International
Underwriting Agreement, subject to proof of such laws as a
question of fact; provided that such choice of law is bona
fide (in the sense that it was not made with a view to
avoiding the consequences of the laws of any other
jurisdiction) and provided that such choice of law is not
contrary to public order, as that term is applied by the
courts in the Province of Quebec; and
(x) Any statements with respect to matters of Canadian
law and regulations set forth in the Prospectus are accurate
in all material respects. Such opinion shall also state that
(i) such counsel did not prepare the
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18
Registration Statements, the Prospectus or any documents
incorporated by reference in the Prospectus and (ii) such
counsel has no reason to believe that the Registration
Statement or any amendment thereto (including the documents
incorporated by reference in the Prospectus) made by the
Company prior to such Time of Delivery, as of its respective
effective date (other than the financial statements and other
financial and statistical information contained therein, as to
which such counsel need express no belief) contained any
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in
order to make the statements therein concerning the Company
not misleading or that, as of such Time of Delivery, the
Prospectus or any amendment or supplement thereto made by the
Company prior to such Time of Delivery (including the
documents incorporated by reference in the Prospectus)
contains any untrue statement of a material fact or omits to
state any material fact necessary to make the statements
therein, in light of circumstances under which the statements
were made, not misleading.
Such opinion shall also state that any final and conclusive
judgment obtained against the Company in the United States in respect
of this Agreement or the International Underwriting Agreement would be
recognized and enforced by the courts of the Province of Quebec
provided that (A) the United States court rendering such judgment had
jurisdiction over the Company, as determined under the relevant
provisions of the laws of the Province of Quebec; (B) such judgment is
not subject to ordinary remedies (such as appeal or judicial review)
and is final and enforceable in the United States; (C) such judgment
was not rendered in contravention of the fundamental principles of
procedure (such as notice of fair hearing, right to be heard, right to
an independent and impartial tribunal and rules against bias); (D)
there were no proceedings pending in the Province of Quebec and no
judgment rendered in the Province of Quebec, or in another
jurisdiction, meeting the necessary conditions for recognition in the
Province of Quebec between the same parties, based on the same facts
and having the same object; (E) such judgment is not manifestly
inconsistent with public order as understood in international
relations; (F) such judgment does not enforce obligations arising from
foreign revenue laws, unless there is reciprocity, or arising from
other laws of a public nature, such as expropriatory or penal laws; (G)
the action to enforce such judgment is commenced in the Province of
Quebec within three (3) years after the date of such judgment; and (H)
such judgment is not contrary to any order made by the Attorney-General
of Canada under the Foreign Extra-territorial Measures Act (Canada) or
by the Competition Tribunal under the Competition Act (Canada).
(e) ▇▇▇▇▇▇▇ Philips & Vineberg (New York), relying on the
opinions of ▇▇▇▇▇▇▇ Philips & Vineberg S.E.N.C., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and Chancery ▇▇▇▇▇▇▇▇, counsel for each of the Selling
Shareholders, together with the local counsel for each of the Selling
Shareholders as indicated in Schedule II hereto, shall have furnished
to you their written opinion with respect to each of the Selling
Shareholders, dated the First Time of Delivery, in form and substance
satisfactory to you (such counsel being entitled to rely, as to all
matters of law other than United States federal or the laws of the
States of the United States solely upon the opinion
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19
of such local counsel) (such counsel also being entitled to rely, as to
matters of fact, upon certificates of officers of each Selling
Shareholder, provided that such counsel shall sate that they believe
both they and you are justified in relying thereon), to the effect
that:
(i) A Power of Attorney has been duly executed and
delivered by such Selling Shareholder and constitutes a valid
and binding instrument of such Selling Shareholder in
accordance with its terms;
(ii) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on
behalf of such Selling Shareholder; and the sale of the Shares
to be sold by such Selling Shareholder hereunder and
thereunder and the compliance by such Selling Shareholder with
all of the provisions of this Agreement, the International
Underwriting Agreement and the Power of Attorney will not
conflict with or result in a breach or violation of any terms
or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which such
Selling Shareholder is a party or by which such Selling
Shareholder is bound, or to which any of the property or
assets of such Selling Shareholder is subject, nor will such
action result in any violation of the provisions of any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over such
Selling Shareholder or the property of such Selling
Shareholder;
(iii) No consent, approval, authorization or order of
any court or governmental agency or body is required by the
Selling Shareholders for the consummation of the transactions
contemplated by this Agreement and the International
Underwriting Agreement in connection with the Shares to be
sold by such Selling Shareholder hereunder or thereunder,
except, in each case, as has been duly obtained and is in full
force and effect, such as have been obtained under the Act and
such as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution
of such Shares by the Underwriters or the International
Underwriters;
(iv) Immediately prior to the First Time of Delivery
such Selling Shareholder had good and valid title to the
Shares to be sold at the Time of Delivery by such Selling
Shareholder under this Agreement and the International
Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and
authority to sell, assign, transfer and deliver the Shares to
be sold by such Selling Shareholder hereunder and thereunder;
and
(v) Assuming that the Underwriters or the
International Underwriters, as the case may be, purchase the
Securities to be sold by such Selling Shareholder to the
Underwriters at the First Time of Delivery for value and
without notice of any "adverse claim" (as defined in Section
8- 102 of the UCC), upon the crediting of the Underwriters' or
International
19
20
Underwriters' accounts with such Shares in the records of DTC,
Cede & Co. or such other nominee designated by DTC will
acquire all rights that such Selling Shareholder had in the
Shares and will be a "protected purchaser" of such Shares (as
defined in Section 8-303) of the UCC), the Underwriters or the
International Underwriters, as the case may be, will acquire a
valid "security entitlement" (within the meaning of Section
8-501 of the UCC) to such Shares, and no action based on an
"adverse claim" (as defined in Section 8-102 of the UCC) may
be asserted against the Underwriters or the International
Underwriters, as the case may be, with respect to such
security entitlement.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction in which they are not qualified to
practice, including, without limitation, with respect to Canadian counsel, any
jurisdiction outside the Province of Quebec (except as to Canadian federal laws
applicable therein) and with respect to United States counsel, any jurisdiction
outside or the United States, as the case may be, and in rendering the opinion
in subparagraph (iv) such counsel may rely upon a certificate of such Selling
Shareholder in respect of matters of fact as to ownership of, and liens,
encumbrances, equities or claims on the Shares sold by such Selling Shareholder,
provided that such counsel shall state that they believe that both you and they
are justified in relying upon such certificate;
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 10:00 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, PricewaterhouseCoopers LLP and KPMG Accountants
N.V., who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement, shall each have furnished to you a letter or
letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, delivered prior to the execution of this
Agreement;
(g) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public
20
21
offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(h) Subsequent to the date hereof there shall not have
occurred any of the following: (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange; (ii)
a general moratorium on commercial banking activities in Canada or New
York declared by Canadian federal, Canadian Provincial, United States
federal or New York State authorities; (iii) a suspension or material
limitation in trading in the Company's common shares on the New York
Stock Exchange; or (iv) the outbreak or escalation of hostilities
involving the United States or Canada or the declaration by the United
States or Canada of a national emergency or war, if the effect of any
such event specified in this clause (iv) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the terms and in the manner contemplated in
the Prospectus;
(i) The Shares to be sold by the Company and each of the
Selling Shareholders at the Time of Delivery shall have been duly
listed, subject to notice of issuance, on the New York Stock Exchange;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from certain shareholders of the
Company set forth on Schedule IV hereto to the effect set forth in
subsection 1(b)(iv) hereof in form and substance satisfactory to you;
(k) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
(l) The Company and each of the Selling Shareholders shall
have furnished or caused to be furnished to you at such Time of
Delivery certificates of officers of the Company and each of the
Selling Shareholders, respectively, satisfactory to you as to the
accuracy of the representations and warranties of the Company and each
of the Selling Shareholders, respectively, herein at and as of such
Time of Delivery, as to the performance by the Company and each of the
Selling Shareholders of all of their respective obligations hereunder
to be performed at or prior to such Time of Delivery, and as to such
other matters as you may reasonably request, and the Company shall have
furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (g) of this Section; and
(m) The purchase of the Canadian Shares under the Canadian
Underwriting Agreement and the International Shares under the
International Underwriting Agreement shall occur no later than
contemporaneously with the purchase of the Shares under this Agreement.
8. (a) The Company, and each Selling Shareholder severally and not
jointly 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
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22
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, 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 each 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 and in conformity with written
information furnished to the Company or any Selling Shareholder by any
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; provided
further, however, that each Selling Shareholder shall be liable in any such case
only 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 by or on behalf of the Selling
Shareholders to the Company or the Underwriters through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
expressly for use therein. In this regard, the Company acknowledges that to
facilitate an orderly distribution of common shares to be issued by the Company,
the Company asked the Selling Shareholders (or their predecessors in title) not
to dispose of any of their common shares of the Company in May 1999 as they had
originally planned. In consideration of those agreements the Company agreed to
include common shares of the Selling Shareholders in the offerings contemplated
by the U.S. Underwriting Agreement and the International Underwriting Agreement
and to indemnify the Underwriters in that context.
(b) The liability of each Selling Shareholder pursuant to this
Section 8 shall not exceed the product of the number of Shares sold by
such Selling Shareholder and the initial price to the public of the
Shares as set forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless both 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 ▇▇▇▇▇▇▇, Sachs & Co. 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
22
23
Selling Shareholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a) or (c) 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 such subsection 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. In no event shall the
indemnifying party be liable for the fees and expenses of more than one
counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, provided
that this sentence shall not impair any right of an indemnified party
to be indemnified for its reasonable costs of investigation. An
indemnifying party shall not be liable for any settlement of any action
or claim for monetary damages which an indemnified party may effect
without the indemnifying party's consent, which consent shall not be
unreasonably withheld.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (c) 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 (d) 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
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24
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 a Selling Shareholder 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 (e) were determined by pro
rata allocation (even if the Underwriters or the Selling Shareholders
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 (e). 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 (e) 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
the provisions of this subsection (e), (i) a Selling Shareholder shall
only be liable to make contributions hereunder in the event and to the
extent that 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 or omission or alleged mission 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 by or on behalf of the Selling
Shareholders to the Company or the Underwriters through ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co. expressly for use therein, and (ii) 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 (e), no
Selling Shareholder shall be required to contribute any amount in
excess of the amount by which the product of the number of Shares sold
by such Selling Shareholder and the initial price to public of the
Shares set forth in the Prospectus exceeds the amount of damages which
such Selling Shareholder 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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e)
to contribute are several in proportion to their respective
underwriting obligations and not joint. The obligations of the Company,
on the one hand, and the Selling Shareholders, on the other, in this
subsection (e) to contribute are several and not joint. The Selling
Shareholders' obligations in this subsection (e) are subject to
subsection (b) above.
(f) The obligations of the Company and the Selling
Shareholders under this Section 8 shall (without duplication) be in
addition to any liability which the Company and the respective Selling
Shareholder 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 (without duplication) be in addition to any
liability which the respective Underwriters may
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25
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company 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 the 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 Company and 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 Company and the Selling Shareholders that you have so arranged for
the purchase of such Shares, or the Company and the Selling Shareholders notify
you that they have so arranged for the purchase of such Shares, you or the
Company and 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
Company 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 Company and 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 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
Company 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 of the Shares to be
purchased at such Time of Delivery, or if the Company and 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 Company 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
25
26
Section 6 hereof and the indemnity and contribution agreements 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 several 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 controlling
person of any Selling Shareholder, and shall survive delivery of and payment for
the Shares.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 8 hereof, the
representations and warranties in subsections (a)(ii), (a)(iii) and (a)(iv) of
Section 1 hereof and any representation or warranty as to the accuracy of the
Registration Statement or the Prospectus contained in any certificate furnished
by the Company pursuant to Section 7 hereof, insofar as they may constitute a
basis for indemnification for liabilities (other than payment by the Company of
expenses incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Act, shall not extend to the extent of any
interest therein of a controlling person or partner of an Underwriter who is a
director, officer or controlling person of the Company when the Registration
Statement has become effective, except in each case to the extent that an
interest of such character shall have been determined by a court of appropriate
jurisdiction as not against public policy as expressed in the Act. Unless in the
opinion of counsel for the Company the matter has been settled by controlling
precedent, the Company will, if a claim for such indemnification is asserted,
submit to a court of appropriate jurisdiction the question whether such interest
is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company, nor any Selling Shareholder 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
Company or any of the Selling Shareholders as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives; and in all dealings with any Selling 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.
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27
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 you as the representatives at ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration Department; 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 II
hereto; and 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: Vice President and Treasurer; provided,
however, that any notice to an Underwriter pursuant to Section 8 (d) 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 any of the Selling Shareholders by you 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 each person who controls the Company, 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. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. 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 one for the Company, for each of the Selling Shareholders and
for each of the Representatives plus one for each counsel, if any 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 (U.S. 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.
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28
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 Shareholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
The Seagram Company Ltd.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Esarbee Investments Limited
CRB Associates, Limited Partnership
▇. ▇▇▇▇▇▇▇▇ Family Trust
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust
The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust
The CRB Foundation
The Chastell Foundation
By: -------------------------------
Name: Title: As Attorney-in-Fact
acting on behalf of the Selling
Shareholders named in Schedule II
to this Agreement.
Accepted as of the date hereof
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Credit Suisse First Boston Corporation
PaineWebber Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Partners, L.P.
By:
-------------------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
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29
SCHEDULE I
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER OF TO BE PURCHASED
FIRM SHARES IF MAXIMUM
UNDERWRITER TO BE PURCHASED OPTION EXERCISED
----------- --------------- ----------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.............................
Bear, ▇▇▇▇▇▇▇ & Co. Inc.........................
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated....................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...............
Credit Suisse First Boston Corporation..........
PaineWebber Incorporated........................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney............................
▇▇▇▇▇▇▇▇ & Partners, L.P........................
[NAMES OF OTHER UNDERWRITERS]...................
---------- ---------
TOTAL............................... 26,000,000 2,850,000
========== =========
30
SCHEDULE II
NUMBER OF
OPTIONAL SHARES
TOTAL TO BE SOLD IF
NUMBER OF FIRM MAXIMUM
SHARES TO BE SOLD OPTION EXERCISED
----------------- ----------------
The Company............................................ 19,000,000 2,850,000
The Selling Shareholder(s)(a):......................... - 0
Esarbee Investments Limited............................
CRB Associates, Limited Partnership(b).................
▇. ▇▇▇▇▇▇▇▇ Family Trust(b)............................
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust(c).......................
The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust.............................
The CRB Foundation.....................................
The Chastell Foundation................................
---------- ---------
TOTAL...................................... 26,000,000 2,850,000
========== =========
(a) Each of the Selling Shareholders is represented by ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ S.E.N.C., and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (New York)
__________, certain of the Selling Shareholders are also represented by ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ __________ or Chancery ▇▇▇▇▇▇▇▇ __________ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ and each of the Selling Shareholders has
appointed ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, and each of them, as the Attorneys-in-Fact for such
Selling Shareholder.
(b) This Selling Shareholder is also represented by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ .
(c) This Selling Shareholder is also represented by Chancery ▇▇▇▇▇▇▇▇ .
31
SCHEDULE III
"▇▇▇▇▇▇▇▇ Trust Permitted Transferees" means:
i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and his lineal descendants;
ii) the spouses of any one or more of the foregoing;
iii) any trust of which any one or more of such persons is a beneficiary;
iv) a partnership in which one or more of the foregoing entities owns a
majority equity interest; and
v) any company directly or indirectly under the Control of one or more of
the foregoing;
"Control" means, in the case of a company or corporation, the beneficial
ownership of
(a) voting securities carrying not less than 50.1%of the votes that may be
cast at a meeting of shareholders of the company (other than meetings
of a particular class); and
(b) securities carrying the right to receive not less than 50.1% of the
residual assets of a company upon liquidation or dissolution, after
provision for any shares entitled to receive property of a fixed or
determinable value upon liquidation or dissolution in priority to the
right of any other class or classes of shares.
32
Schedule IV
[List of Shareholders to come]