EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
▇▇▇▇▇▇▇ ENTERTAINMENT COMPANY
5,872,113 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
[-], 2004
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Deutsche Bank Securities Inc.
As Representatives of the
several Underwriters listed
in Schedule I hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "SELLING
STOCKHOLDERS") of ▇▇▇▇▇▇▇ Entertainment Company, a Delaware corporation (the
"COMPANY"), propose to sell to the several Underwriters listed in Schedule I
hereto (the "UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), an aggregate of 5,872,113 shares (the "UNDERWRITTEN SHARES")
and, at the option of the Underwriters, up to an additional 880,816 shares (the
"OPTION SHARES"), of common stock, par value $0.01 per share (the "STOCK"), of
the Company to cover overallotments, if any. The Underwritten Shares and the
Option Shares are herein referred to as the "Shares".
The Company hereby confirms its agreement with the several Underwriters
concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the "COMMISSION") under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "SECURITIES ACT"), a registration statement (File No.
333-114293) including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it becomes effective, including the
information, if any, deemed pursuant to Rule 430A under the Securities Act to be
part of the registration statement at the time of its effectiveness ("RULE 430
INFORMATION"), is referred to herein as the "REGISTRATION STATEMENT"; and as
used herein, the term "PRELIMINARY PROSPECTUS" means each prospectus included in
such registration statement (and any amendments thereto) before it becomes
effective, any prospectus filed with the Commission pursuant to Rule 424(a)
under the Securities Act and the prospectus included in the Registration
Statement at the time of its effectiveness that omits Rule 430A Information, and
the term "Prospectus" means the prospectus in the form first used to confirm
sales of the Shares. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration
Statement. Any reference in this Agreement to the Registration Statement, 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 Securities Act, as of the effective date of the Registration Statement
or the date of such Preliminary Prospectus or the Prospectus, as the case may be
and any reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "EXCHANGE ACT") that are deemed to
be incorporated by reference therein. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Registration Statement
and the Prospectus.
2. Purchase of the Shares by the Underwriters. (a) Each of the Selling
Stockholders agrees, severally and not jointly, to sell the Shares to the
several Underwriters as provided in this Agreement, and each Underwriter, on the
basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly,
to purchase from each of the Selling Stockholders at a purchase price per share
of $[?] (the "PURCHASE PRICE") the number of Underwritten Shares (to be adjusted
by you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Underwritten Shares to be sold by each of the Selling
Stockholders as set forth opposite their respective names in Schedule II hereto
by a fraction, the numerator of which is the aggregate number of Underwritten
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 of Underwritten Shares to be purchased by all the Underwriters
from all of the Selling Stockholders hereunder.
In addition, the Selling Stockholders, as and to the extent indicated
in Schedule II hereto agree, severally and not jointly, to sell the Option
Shares to the several Underwriters and the Underwriters shall have the option to
purchase at their election up to 880,816 Option Shares at the Purchase Price to
cover overallotments, if any. The Underwriters, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, shall have the option to purchase, severally and not
jointly, from the Selling Stockholders at the Purchase Price that portion of the
number of Option 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 Option Shares by a fraction the numerator of which is
the maximum number of Option Shares which such Underwriter is entitled to
purchase and the denominator of which is the maximum number of Option Shares
which all of the Underwriters are entitled to purchase hereunder. Any such
election to purchase Option Shares shall be made in proportion to the maximum
number of Option Shares to be sold by each Selling Stockholder as set forth in
Schedule II hereto.
The Underwriters may exercise the option to purchase the Option Shares
at any time and from time to time on or before the thirtieth day following the
date of this Agreement, by written notice from the Representatives to the
Attorneys-in-Fact (as defined below). Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the
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date and time when the Option Shares are to be delivered and paid for which may
be the same date and time as the Closing Date (as hereinafter defined) but shall
not be earlier than the Closing Date nor later than the tenth full business day
(as hereinafter defined) after the date of such notice (unless such time and
date are postponed in accordance with the provisions of Section 11 hereof). Any
such notice shall be given at least two business days prior to the date and time
of delivery specified therein.
(b) The Selling Stockholders understand that the Underwriters
intend to make a public offering of the Shares as soon after the effectiveness
of this Agreement as in the judgment of the Representatives is advisable, and
initially to offer the Shares on the terms set forth in the Prospectus. The
Selling Stockholders acknowledge and agree that the Underwriters may offer and
sell Shares to or through any affiliate of an Underwriter and that any such
affiliate may offer and sell Shares purchased by it to or through any
Underwriter.
(c) Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Attorneys-in-Fact
(as defined below), or any of them, in the case of the Underwritten Shares, at
the offices of Shearman & Sterling LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ at 10:00 A.M. New York City time on [?], 2004, or at such other time or
place on the same or such other date, not later than the fifth business day
thereafter, as the Representatives and the Attorneys-in-Fact may agree upon in
writing or, in the case of the Option Shares, on the date and at the time and
place specified by the Representatives in the written notice of the
Underwriters' election to purchase such Option Shares. The time and date of such
payment for the Underwritten Shares are referred to herein as the "CLOSING DATE"
and the time and date for such payment for the Option Shares, if other than the
Closing Date, are herein referred to as the "ADDITIONAL CLOSING DATE".
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date in definitive form registered in such
names and in such denominations as the Representatives shall request in writing
not later than two full business days prior to the Closing Date or the
Additional Closing Date, as the case may be, with any transfer taxes payable in
connection with the sale of the Shares duly paid by the Selling Stockholders.
The certificates for the Shares will be made available for inspection and
packaging by the Representatives at the office of ▇.▇. ▇▇▇▇▇▇ Securities Inc.
set forth above not later than 1:00 P.M., New York City time, on the business
day prior to the Closing Date or the Additional Closing Date, as the case may
be.
3. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter and the Selling Stockholders that:
(a) Preliminary Prospectus. 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, complied in all
material respects with the Securities Act and did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Company makes
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no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to (a) any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Preliminary Prospectus and any
amendment or supplement thereto or (b) any Selling Stockholder furnished to the
Company by such Selling Stockholder for use in any Preliminary Prospectus and
any amendment or supplement thereto.
(b) Registration Statement and Prospectus. No order suspending
the effectiveness of the Registration Statement has been issued by the
Commission and the Company has not received notice after due inquiry of any
proceeding for that purpose that has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration Statement
and any amendment thereto, the Registration Statement complied and will comply
in all material respects with the Securities Act, and did not and will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the applicable filing date of the Prospectus
and any amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information
relating to (a) any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto or (b) any
Selling Stockholder furnished to the Company by such Selling Stockholder for use
in the Registration Statement and Prospectus and any amendment or supplement
thereto.
(c) Incorporated Documents. The documents incorporated by
reference in the Prospectus, when they become effective or were filed or last
amended as of the date hereof, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and none
of such documents, as amended as of the date hereof, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, 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 Securities Act
or the Exchange Act, as applicable, and will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) Financial Statements. The historical financial statements
of the Company and its consolidated subsidiaries and the related notes thereto,
as amended or superseded as of the date hereof, included or incorporated by
reference in the Registration Statement and the Prospectus present fairly in all
material respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations for the periods specified; such financial statements have been
prepared in conformity
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with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise disclosed therein).
The summary historical consolidated financial data and the information
under the heading "Capitalization" included in the Registration Statement and
the Prospectus are presented on a basis consistent with that of the audited
financial statements included or incorporated by reference in the Registration
Statement and the Prospectus.
(e) No Material Adverse Change. Except as otherwise disclosed
in the Registration Statement and the Prospectus, subsequent to the respective
dates as of which information is given in the Registration Statement and the
Prospectus: (i) there has been no material adverse change, or any development
that could reasonably be expected to result in a material adverse change, in the
condition, financial or otherwise, or in the earnings, business, operations or
prospects, whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, considered as one entity (any
such change is called a "MATERIAL ADVERSE CHANGE"); (ii) the Company and its
subsidiaries, considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or repurchase or redemption by the Company or any of
its subsidiaries of any class of capital stock.
(f) Organization and Good Standing. Each of the Company and
its subsidiaries has been duly incorporated or organized and is validly existing
as a corporation, limited liability company, limited partnership or general
partnership and is in good standing under the laws of the jurisdiction of its
incorporation or organization and has corporate or other power and authority to
own, lease and operate its properties and to conduct its business as described
in the Registration Statement and the Prospectus and, in the case of the
Company, to enter into and perform its obligations, as the case may be, under
this Agreement.
Each of the Company and its subsidiaries is duly qualified to transact
business as a foreign corporation, limited liability company or partnership, as
applicable, and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Change. All of the issued and
outstanding capital stock or partnership or other ownership interests of each
subsidiary of the Company has been duly authorized and validly issued, is fully
paid and nonassessable and is owned by the Company directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim except as set forth in the Registration Statement and the
Prospectus or on Schedule III hereto. The Company does not own or control,
directly or indirectly, any corporation, association or other entity other than
the subsidiaries listed on Schedule III hereto.
(g) Authorized Capital. The authorized share capital of the
Company consists of 150,000,000 shares of Common Stock, and 100,000,000 shares
of preferred stock, $0.01 par
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value, of which (except for subsequent issuances, if any, pursuant the Company's
stock option plans described in the Prospectus) [39,508,277] shares of Common
Stock are outstanding and no shares of Preferred Stock are outstanding; all the
outstanding shares of capital stock of the Company (including the Shares to be
sold by the Selling Stockholders) have been duly and validly authorized and
issued and are fully paid and non-assessable and are not subject to any
pre-emptive or similar rights under Delaware law; except as described in or
expressly contemplated by the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options to
acquire from the Company, or instruments convertible into or exchangeable for,
any shares of capital stock or other equity interest in the Company or any of
its subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind to which the Company or any of its subsidiaries is a
party relating to the issuance of any capital stock of the Company or any such
subsidiary, any such convertible or exchangeable securities or any such rights,
warrants or options; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Registration Statement and
the Prospectus.
(h) Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors generally or by general equitable principles.
(i) No Violation or Default. Except with respect to claims
disclosed in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries is (i) in violation of its charter, by-laws or other
constitutive document, or (ii) is in default (or, with the giving of notice or
lapse of time, would be in default) ("DEFAULT") under any indenture, mortgage,
loan or credit agreement, note, contract, franchise, lease or other instrument
to which the Company or any of its subsidiaries is a party or by which it or any
of them may be bound (including, without limitation, the agreements listed in
Schedule IV), or to which any of the property or assets of the Company or any of
their respective subsidiaries is subject (each, an "EXISTING INSTRUMENT"), or
(iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such Default or
violation that would not, individually or in the aggregate, result in a Material
Adverse Change.
(j) No Conflicts. The Company's execution, delivery and
performance of this Agreement and consummation of the transactions contemplated
hereby and thereby and by the Registration Statement and the Prospectus (i) have
been duly authorized by all necessary corporate or other action and will not
result in any violation of the provisions of the charter, by-laws or other
constitutive document of the Company or any of its subsidiaries, (ii) will not
conflict with or constitute a breach of, or Default or a Debt Repayment
Triggering Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, or require the consent of any
other party to, any Existing Instrument, except for such conflicts, breaches,
Defaults, liens, charges or encumbrances as would not, individually or in the
aggregate, result in
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a Material Adverse Change, and (iii) assuming the accuracy of the
representations, warranties and covenants of the Underwriters herein, will not
result in any violation of any law, administrative regulation or administrative
or court decree applicable to the Company or any of its subsidiaries. As used
herein, a "DEBT REPAYMENT TRIGGERING EVENT" means any event or condition which
gives, or with the giving of notice or lapse of time would give, the holder of
any note, debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(k) No Consents Required. No consent, approval, authorization
or other order of, or registration or filing with, any court or other
governmental or regulatory authority or agency, is required for the Company's
execution, delivery and performance of this Agreement, or consummation of the
transactions contemplated hereby and thereby and by the Registration Statement
and the Prospectus, except such as have been obtained or made by the Company and
are in full force and effect under the Securities Act, applicable state
securities or blue sky laws.
(l) Legal Proceedings. Except as otherwise disclosed in the
Registration Statement and the Prospectus, there are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened (i) against or affecting the Company or any of its
subsidiaries, or (ii) which has as the subject thereof any property owned or
leased by, the Company or any of its subsidiaries, and which action, suit or
proceeding, if determined adversely to the Company, or any of its subsidiaries,
as the case may be, would reasonably be expected to result in a Material Adverse
Change or adversely affect the consummation of the transactions contemplated by
this Agreement.
(m) Independent Accountants. Ernst & Young LLP, who have
expressed their opinion with respect to the Company's financial statements
(which term as used in this Agreement includes the related notes thereto) and
supporting schedules filed with the Commission included or incorporated by
reference in the Registration Statement and the Prospectus are independent
public or certified public accountants within the meaning of Regulation S-X
under the Securities Act and the Exchange Act.
(n) Title to Real and Personal Property. Except as otherwise
disclosed in the Registration Statement and the Prospectus, the Company and each
of its subsidiaries has good and marketable title to all the properties and
assets reflected as owned in the financial statements referred to in Section
1(d) above (or elsewhere in the Registration Statement and the Prospectus), in
each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except as disclosed in the
Registration Statement and the Prospectus or on Schedule III hereto or such as
do not materially and adversely affect the value of such property and do not
materially interfere with the use made or proposed to be made of such property
by the Company or such subsidiary. The real property, improvements, equipment
and personal property held under lease by the Company or any subsidiary are held
under valid and enforceable leases, with such exceptions as are not material and
do not materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by the Company or
such subsidiary.
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(o) Title to Intellectual Property. Except as otherwise
disclosed in the Registration Statement and the Prospectus, the Company and its
subsidiaries own or possess sufficient trademarks, trade names, patent rights,
copyrights, licenses, approvals, trade secrets and other similar rights
(collectively, "INTELLECTUAL PROPERTY RIGHTS") reasonably necessary to conduct
their businesses as now conducted, except where the failure to own or possess
such rights would not reasonably be expected to result in a Material Adverse
Change; and the expected expiration of any of such Intellectual Property Rights
would not result in a Material Adverse Change. Neither the Company nor any of
its subsidiaries has received any notice of infringement or conflict with
asserted Intellectual Property Rights of others, which infringement or conflict,
if the subject of an unfavorable decision, would reasonably be expected to
result in a Material Adverse Change.
(p) No Undisclosed Relationships. No relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries, on the
one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries, on the other, that is required by the
Securities Act to be described in the Registration Statement and the Prospectus
and that is not so described.
(q) Investment Company Act. The Company has been advised of
the rules and requirements under the Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission thereunder (collectively,
"INVESTMENT COMPANY ACT"). The Company is not an "investment company" or an
entity "controlled" by an "investment company" within the meaning of the
Investment Company Act.
(r) Taxes. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns or have
properly requested extensions thereof and have paid all taxes required to be
paid by any of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being contested in
good faith and by appropriate proceedings. The Company has made adequate
charges, accruals and reserves in the applicable financial statements referred
to in Section 1(d) above in respect of all material federal, state and foreign
income and franchise taxes for all periods as to which the tax liability of the
Company or any of its subsidiaries has not been finally determined.
(s) Licenses and Permits. Except as otherwise disclosed in the
Registration Statement and the Prospectus, the Company and each of its
subsidiaries possess such valid and current certificates, authorizations or
permits issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct their respective businesses, and neither the
Company nor any such subsidiary has received any notice of proceedings relating
to the revocation or modification of, or non-compliance with, any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could result in a
Material Adverse Change.
(t) No Labor Disputes. Except as otherwise disclosed in the
Registration Statement and the Prospectus, no material labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the best of
the Company's knowledge, is threatened or imminent.
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(u) Compliance With Environmental Laws. Except as otherwise
disclosed in the Registration Statement and the Prospectus or as would not,
individually or in the aggregate, result in a Material Adverse Change: (i)
neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign law or regulation relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, "MATERIALS OF ENVIRONMENTAL CONCERN"), or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environmental Concern
(collectively, "ENVIRONMENTAL LAWS"), which violation includes, but is not
limited to, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its subsidiaries
under applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Company or any of its subsidiaries
is in violation of any Environmental Law; (ii) there is no claim, action or
cause of action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no written
notice by any person or entity alleging potential liability for investigatory
costs, cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties arising out
of, based on or resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased or operated
by the Company or any of its subsidiaries, now or in the past (collectively,
"ENVIRONMENTAL CLAIMS"), pending or, to the best of the Company's knowledge,
threatened against the Company or any of its subsidiaries or any person or
entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of its subsidiaries or against
any person or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or by
operation of law.
(v) Periodic Review of Costs of Environmental Compliance. In
the ordinary course of its business, the Company conducts a periodic review of
the effect of Environmental Laws on the business, operations and properties of
the Company and its subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review and the amount of its established
reserves, the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, result in a Material
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Adverse Change, except to the extent otherwise disclosed in the Registration
Statement and the Prospectus.
(w) Compliance With ERISA. Except as otherwise disclosed in
the Registration Statement and the Prospectus, the Company and its subsidiaries
and any "employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, its subsidiaries or its "ERISA Affiliates" (as defined below) are
in compliance in all material respects with ERISA. "ERISA Affiliate" means, with
respect to the Company or any of its subsidiaries, any member of any group of
organizations described in Section 414 of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (the
"CODE") of which the Company or any of its subsidiaries is a member. No
"reportable event" (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any "employee benefit plan" established or
maintained by the Company, its subsidiaries or any of its ERISA Affiliates. No
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of its ERISA Affiliates, if such "employee benefit plan"
were terminated, would have any "amount of unfunded benefit liabilities" (as
defined under ERISA). Neither the Company, its subsidiaries nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any material liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the
Code. Each "employee benefit plan" established or maintained by the Company, its
subsidiaries or any of its ERISA Affiliates that is intended to be qualified
under Section 401 of the Code is so qualified and nothing has occurred, whether
by action or failure to act, which would cause the loss of such qualification.
(x) Accounting Controls. The Company maintains a system of
internal controls over financial reporting that is sufficient to provide
reasonable assurances that: (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles as applied in the United States and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) Insurance. Except as otherwise disclosed in the
Registration Statement and the Prospectus, the Company and its subsidiaries are
self-insured or are insured by recognized, financially sound institutions with
policies in such amounts and with such deductibles and covering such risks as
are generally deemed adequate and customary for their businesses including, but
not limited to, policies covering real and personal property owned or leased by
the Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes. The Company has no reason to believe that it or any
subsidiary will not be able to (i) renew its existing insurance coverage as and
when such policies expire or (ii) to obtain comparable coverage from similar
institutions as may be necessary or appropriate to conduct its business as now
conducted and at a cost that would not result in a Material Adverse Change.
10
Neither of the Company nor any of its subsidiaries has been denied any insurance
coverage which it has sought or for which it has applied.
(z) No Unlawful Payments. Except as otherwise disclosed in the
Registration Statement and the Prospectus, neither the Company nor any of its
subsidiaries nor, to the best of the Company's knowledge, any employee or agent
of the Company or any of its subsidiaries, has made any contribution or other
payment to any official of, or candidate for, any federal, state or foreign
office in violation of any law or of the character necessary to be disclosed in
the Registration Statement and the Prospectus in order to make the statements
therein not misleading.
(aa) No Broker's Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding with any
person (other than this Agreement) that would give rise to a valid claim against
the Company or any of its subsidiaries or any Underwriter for a brokerage
commission, finder's fee or like payment in connection with the offering and
sale of the Shares.
(bb) No Registration Rights. No person has the right to
require the Company or any of its subsidiaries to register any securities for
sale under the Securities Act by reason of the filing of the Registration
Statement with the Commission or, to the best knowledge of the Company, the sale
of the Shares to be sold by the Selling Stockholders hereunder.
(cc) No Stabilization. None of the Company or any of its
affiliates has taken or will take, directly or indirectly, any action designed
to or that might be reasonably 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 (but no representation is made concerning the actions of
the Selling Stockholders or their affiliates).
(dd) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company and, to the best of its
knowledge, its officers and directors are in compliance in all material respects
with applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT") that
are effective as of the date hereof.
(ee) Stock Exchange Listing. The Company's Stock is registered
pursuant to Section 12(b) of the Exchange Act and is listed on the New York
Stock Exchange (the "NYSE"), and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Stock under
the Exchange Act or delisting the Stock from the NYSE, nor has the Company
received any notification that the Commission or the NYSE is contemplating
terminating such registration or listing.
(ff) Disclosure Controls and Procedures. The Company has
established and maintains disclosure controls and procedures (as such term is
defined in Rule 13a-14 under the Exchange Act), which: (i) are designed to
ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company's principal executive
officer and its principal financial officer by others within those entities,
particularly during the periods in which the periodic reports required under the
Exchange Act are being
11
prepared, (ii) have been evaluated for effectiveness as of the end of the period
covered by the Company's most recent annual or quarterly report filed with the
Commission, and (iii) are effective in all material respects to perform the
functions for which they were established. Based on the evaluation of the
Company's disclosure controls and procedures described above, the Company is not
aware of (a) any significant deficiency in the design or operation of internal
controls which could adversely affect the Company's ability to record, process,
summarize and report financial data or any material weaknesses in internal
controls or (b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company's internal controls.
Since the most recent evaluation of the Company's disclosure controls and
procedures described above, there have been no significant changes in internal
controls or in other factors that could significantly affect internal controls.
(gg) No Outstanding Loans or Other Indebtedness. Except as
otherwise disclosed in the Registration Statement and the Prospectus, there are
no outstanding loans, advances (except normal advances for business expenses in
the ordinary course of business) or guarantees or indebtedness by the Company to
or for the benefit of any of the officers or directors of the Company or any of
the members of any of them.
4. Representations and Warranties of the Selling Stockholders. Each of
the Selling Stockholders severally represents and warrants to each Underwriter
and the Company that:
(a) Required Consents; Authority. All consents, approvals,
authorizations and orders necessary for the execution and delivery by such
Selling Stockholder of this Agreement and the Custody Agreement and the Power of
Attorney (the "CUSTODY AGREEMENT AND POWER OF ATTORNEY") hereinafter referred
to, and for the sale and delivery of the Shares to be sold by such Selling
Stockholder hereunder, have been obtained; and such Selling Stockholder has full
right, power and authority to enter into this Agreement, the Custody Agreement
and Power of Attorney and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder hereunder; this Agreement and the Custody
Agreement and Power of Attorney have each been duly authorized, executed and
delivered by such Selling Stockholder.
(b) No Conflicts. The execution, delivery and performance by
such Selling Stockholder of this Agreement and the Custody Agreement and Power
of Attorney, the sale of the Shares to be sold by such Selling Stockholder and
the consummation by such Selling Stockholder of the transactions herein and
therein contemplated will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of such Selling Stockholder pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which such Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling Stockholder
is subject, (ii) if such Selling Stockholder is not an individual, result in any
violation of the provisions of the charter or by-laws or similar organizational
documents of such Selling Stockholder or (iii) result in the violation of any
law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory agency.
12
(c) Direct Holder of Securities; Title to Securities. The
Shares to be sold by such Selling Shareholder pursuant to this Agreement are
certificated securities in registered form and are not held in any securities
account or by or through any securities intermediary within the meaning of the
Uniform Commercial Code as in effect in the State of New York ("NYUCC"). Such
Selling Shareholder has, and, at the Closing Date and, if any Option Shares are
purchased, on the Additional Closing Date, will have, full right, power and
authority to hold, sell, transfer and deliver the Shares to be sold by such
Selling Shareholder pursuant to this Agreement; and upon the Underwriters'
acquiring possession of such Shares and paying the purchase price therefore as
herein contemplated, the Underwriters will acquire their respective interests in
such Shares (including, without limitation, all rights that such Selling
Shareholder had or has the power to transfer in such Shares) free of any adverse
claim.
(d) No Stabilization. Such Selling Stockholder has not taken
and will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Shares.
(e) Registration Statement and Prospectus. As of the
applicable effective date of the Registration Statement and any amendment
thereto, the Registration Statement complied and will comply in all material
respects with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and as of the applicable filing date of the Prospectus and any
amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the representations and warranties set forth in this paragraph 4(e) only
apply to statements or omissions in the Registration Statement and Prospectus
based upon information relating to such Selling Shareholder furnished to the
Company in writing by such Selling Stockholder expressly for use therein; and
provided, further that such Selling Stockholder makes no representation and
warranty with respect to any statements or omissions made relating to the
Company or in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto.
Each of the Selling Stockholders represents and warrants that
certificates representing all of the Shares to be sold by such Selling
Stockholders are in suitable form for transfer by delivery or accompanied by
duly executed instruments of transfer in blank, with signatures guaranteed
hereunder have been placed in custody under a Custody Agreement and Power of
Attorney relating to such Shares, in the form heretofore furnished to you, duly
executed and delivered by such Selling Stockholder to Sun Trust Bank, as
custodian (the "CUSTODIAN"), and that such Selling Stockholder has duly executed
and delivered a Custody Agreement and Power of Attorney, in the form heretofore
furnished to you, appointing the persons indicated in Schedule II hereto, and
any two of them, as such Selling Stockholder's Attorneys-in-fact (the
"ATTORNEYS-IN-FACT") with authority to execute and deliver this Agreement on
behalf of such Selling Stockholder, to determine the purchase price to be paid
by the Underwriters to the Selling
13
Stockholders as provided herein, to authorize the delivery of the Shares to be
sold by such Selling Stockholder hereunder and otherwise to act on behalf of
such Selling Stockholder in connection with the transactions contemplated by
this Agreement and the Custody Agreement.
Each of the Selling Stockholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Stockholder
under the Custody Agreement and Power of Attorney, are subject to the interests
of the Underwriters hereunder, and that the arrangements made by such Selling
Stockholder for such custody, and the appointment by such Selling Stockholder of
the Attorneys-in-Fact by the Custody Agreement and Power of Attorney, are to the
extent set out in the Custody Agreement and Power of Attorney irrevocable. Each
of the Selling Stockholders specifically agrees that the obligations of such
Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling Stockholder, 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, corporation or similar organization, by the dissolution of such
partnership, corporation or organization, or by the occurrence of any other
event. If any individual Selling Stockholder 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, corporation or similar organization
should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing such Shares shall be
delivered by or on behalf of such Selling Stockholder in accordance with the
terms and conditions of this Agreement and the Custody Agreement and Power of
Attorney, and actions taken by the Attorneys-in-Fact pursuant to the Custody
Agreement and 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 Custodian, the Attorneys-in-Fact, or any of them, shall have received
notice of such death, incapacity, termination, dissolution or other event.
(f) Absence of Knowledge of Material Adverse Change. Such
Selling Stockholder's decision to sell Shares hereunder was not based upon any
knowledge of any Material Adverse Change affecting the Company that has not been
publicly disclosed by the Company in its filings with the Commission under the
Exchange Act.
5. Further Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Effectiveness of the Registration Statement. The Company
will use its reasonable best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, will file the
final Prospectus with the Commission within the time periods specified by Rule
424(b) and Rule 430A under the Securities Act and 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; and the Company will furnish copies of the Prospectus to the
Underwriters in New York City promptly, but in no case later than 5:00 P.M., New
York City time, on the business day that is two days prior to the Closing Date
in such quantities as the Representatives may reasonably request.
14
(b) Delivery of Copies. The Company will deliver, without
charge, (i) to the Representatives, two signed copies of the Registration
Statement as originally filed and each amendment thereto, in each case including
all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of the
Registration Statement as originally filed and each amendment thereto (without
exhibits) and (B) during the Prospectus Delivery Period, as many copies of the
Prospectus (including all amendments and supplements thereto and documents
incorporated by reference therein) as the Representatives may reasonably
request. As used herein, the term "PROSPECTUS DELIVERY PERIOD" means such period
of time after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters a prospectus relating to the Shares is
required by law to be delivered in connection with sales of the Shares by any
Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, whether before or
after the time that the Registration Statement becomes effective, the Company
will furnish to the Representatives and counsel for the Underwriters a copy of
the proposed amendment or supplement for review and will not file any such
proposed amendment or supplement to which the Representatives reasonably
objects.
(d) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when the
Registration Statement has become effective; (ii) when any amendment to the
Registration Statement has been filed or becomes effective; (iii) when any
supplement to the Prospectus or any amendment to the Prospectus has been filed;
(iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional information; (v) of the issuance by
the Commission of any order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or the initiation or threatening of any proceeding for that
purpose; (vi) of the occurrence of any event within the Prospectus Delivery
Period as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading; and (vii) of the receipt by the Company of any notice with respect
to any suspension of the qualification of the Shares for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its best efforts to prevent the issuance of
any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification of the Shares and, if any such order is
issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the
Prospectus Delivery Period (i) any event shall occur or condition shall exist as
a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered to a
purchaser, not
15
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the
Commission and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares
for offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Representatives shall reasonably request and will continue such
qualifications in effect so long as required for distribution of the Shares;
provided that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally
available to its security holders and the Representatives as soon as practicable
an earning statement that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder covering a
period of at least twelve months beginning with the first fiscal quarter of the
Company occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For a period of 90 days after the date
hereof, the Company will not (i) offer, pledge, announce the intention to sell,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any shares of Stock or
any securities convertible into or exercisable or exchangeable for Stock or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Stock or such other securities, in cash or otherwise, without the prior
written consent of the Representatives, other than the issuance of shares
pursuant to any stock purchase warrant outstanding on the date hereof, Shares to
be sold hereunder, and the grant of awards under and issuance of any shares of
Stock issuable upon the exercise of options or awards granted under, existing
employee and director stock incentive plans.
(i) Reports. So long as the Shares are outstanding, the
Company will furnish to the Representatives, as soon as they are available,
copies of all reports or other communications (financial or other) furnished to
holders of the Shares, and copies of any reports and financial statements
furnished to or filed with the Commission or any national securities exchange or
automatic quotation system; provided that the Company need not separately
furnish any information that is publicly available on the Commission's ▇▇▇▇▇
site or the Company's website.
16
6. Further Agreements of the Selling Stockholders. Each of the Selling
Stockholders covenants and agrees with each Underwriter that:
(a) Clear Market. For a period of 90 days after the date of
the public offering of the Shares, such Selling Stockholder will not (i) offer,
pledge, announce the intention to sell, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Stock or any securities convertible into
or exercisable or exchangeable for Stock or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Stock or such other securities, in
cash or otherwise or (iii) make any demand for or exercise any right with
respect to the registration of any shares of Stock or any security convertible
into or exercisable or exchangeable for Stock without the prior written consent
of the Representatives, in each case other than the Shares to be sold by such
Selling Stockholder hereunder.
(b) Tax Form. It will deliver to the Representatives prior to
or at the Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by the
Treasury Department regulations in lieu thereof) in order to facilitate the
Underwriters' documentation of their compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated.
7. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase the Underwritten Shares on the Closing Date or the
Option Shares on the Additional Closing Date, as the case may be as provided
herein is subject to the performance by the Company and each of the Selling
Stockholders of their respective covenants and other obligations hereunder and
to the following additional conditions:
(a) Registration Compliance; No Stop Order. The Registration
Statement (or if a post-effective amendment thereto is required to be filed
under the Securities Act, such post-effective amendment) shall have become
effective, and the Representatives shall have received notice thereof, not later
than 5:00 P.M., New York City time, on the date hereof; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been timely filed with the Commission
under the Securities Act and in accordance with Section 5(a) hereof; and all
requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The respective
representations and warranties of the Company and the Selling Stockholders
contained herein shall be true and correct on the date hereof and on and as of
the Closing Date or the Additional Closing Date, as the case may be; and the
statements of the Company and its officers and of each of the Selling
Stockholders made in any certificates delivered pursuant to this Agreement shall
be true and correct on and as of the Closing Date or the Additional Closing
Date, as the case may be.
17
(c) No Downgrade. Subsequent to the execution and delivery of
this Agreement, (i) no downgrading shall have occurred in the rating accorded
any securities or preferred stock of or guaranteed by the Company or any of its
subsidiaries by any "nationally recognized statistical rating organization", as
such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, or has changed its outlook with respect to,
its rating of any securities or preferred stock of or guaranteed by the Company
or any of its subsidiaries (other than an announcement with positive
implications of a possible upgrading).
(d) No Material Adverse Change. Subsequent to the execution
and delivery of this Agreement, no event or condition of a type described in
Section 3(e) hereof shall have occurred or shall exist, which event or condition
is not described in the Prospectus (excluding any amendment or supplement
thereto) and the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement and the
Prospectus.
(e) Officer's Certificate. The Representatives shall have
received on and as of the Closing Date or the Additional Closing Date, as the
case may be, a certificate (i) of the chief financial officer or chief
accounting officer of the Company and one additional senior executive officer of
the Company who is satisfactory to the Representatives (A) confirming that such
officers have carefully reviewed the Registration Statement and the Prospectus
and, to the best knowledge of such officers, the representation of the Company
set forth in Section 3(b) hereof is true and correct, (B) confirming that the
other representations and warranties of the Company in this Agreement are true
and correct and that the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date and (C) to the effect set forth in paragraphs (a), (c) and (d)
above and (ii) of the Selling Stockholders, in form and substance reasonably
satisfactory to the Representatives, (A) confirming that the representation of
such Selling Stockholders set forth in Section 4(e) hereof is true and correct
and (B) confirming that the other representations and warranties of such Selling
Stockholders in this agreement are true and correct and that the such Selling
Stockholders have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied hereunder at or prior to such Closing
Date.
(f) Comfort Letters. On the date of this Agreement and on the
Closing Date or the Additional Closing Date, as the case may be, Ernst & Young
LLP shall have furnished to the Representatives, at the request of the Company,
letters, dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference in the Registration Statement and the Prospectus; provided, that
the letter delivered on the Closing Date or the Additional Closing Date, as the
case may be shall use a "cut-off" date no more than three business days prior to
such Closing Date or such Additional Closing Date, as the case may be.
18
(g) Opinion of Counsel for the Company. (i) Bass, ▇▇▇▇▇ & ▇▇▇▇
PLC, counsel for the Company, shall have furnished to the Representatives, at
the request of the Company, their written opinion, dated the Closing Date or the
Additional Closing Date, as the case may be, and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, to the
effect set forth in Annex A hereto and (ii) ________________, Florida counsel
for the Company, shall have furnished to the Representatives, at the request of
the Company, their written opinion, dated the Closing Date or the Additional
Closing Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set
forth in Annex A1.
(h) Opinion of Counsel for the Selling Stockholders. (i)
▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders, shall have furnished to the
Representatives, at the request of the Selling Stockholders, their written
opinion, dated the Closing Date or the Additional Closing Date, as the case may
be, and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Annex B hereto
and (ii) ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, New York counsel to the Selling Stockholders,
shall have furnished to the Representatives, at the request of the Selling
Stockholders, their written opinion, dated the Closing Date or the Additional
Closing Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set
forth in Annex B1.
(i) Opinion of Counsel for the Underwriters. The
Representatives shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, an opinion of Shearman & Sterling
LLP, counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.
(j) No Legal Impediment to Sale. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date or the Additional Closing Date, as the case
may be, prevent the sale of the Shares; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date or the Additional Closing Date, as the case may be, prevent the
sale of the Shares.
(k) Good Standing. The Representatives shall have received on
and as of the Closing Date or the Additional Closing Date, as the case may be,
satisfactory evidence of the good standing of the Company and its subsidiaries
in their respective jurisdictions of organization and their good standing as
foreign entities in such other jurisdictions as the Representatives may
reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such
jurisdictions.
(l) Lock-up Agreements. The "lock-up" agreements, each
substantially in the form of Annex C hereto, between you and certain
shareholders, officers and directors of the Company listed on Schedule V hereto,
relating to sales and certain other dispositions of shares of
19
Stock or certain other securities, delivered to you on or before the date
hereof, shall be full force and effect on the Closing Date or the Additional
Closing Date, as the case may be.
(m) Additional Documents. On or prior to the Closing Date or
the Additional Closing Date, as the case may be, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The
Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to (a) any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein, (it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (c) below) or (b) any Selling
Stockholder furnished to the Company by such Selling Stockholder for use
therein; provided, further, that the Company and its subsidiaries shall not be
liable to the Underwriters or any of their respective directors, officers,
employees or controlling persons with respect to any such untrue statement or
omission made in any Preliminary Prospectus existing as of the date hereof that
is corrected in the Prospectus if (i) the person asserting any such loss, claim,
damage, liability or action purchased Shares from the Underwriters in reliance
upon the Preliminary Prospectus but was not delivered or sent a copy of the
Prospectus, if required by law, at or prior to the written confirmation of the
sale of such Shares to such person, unless such failure to deliver or send the
Prospectus was a result of noncompliance by the Company with Section 5 of this
Agreement and (ii) the Underwriters, and each such officer, director, employee
and controlling person, if any, would not have incurred such loss, claim,
damage, liability or action had the Prospectus been delivered or sent.
(b) Indemnification of the Underwriters by the Selling
Stockholders. Each of the Selling Stockholders severally in proportion to the
number of Shares to be sold by such
20
Selling Stockholder hereunder agrees to indemnify and hold harmless each
Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided, however,
that such indemnification shall be only with respect to information regarding
the Selling Stockholders furnished in writing to the Company by or on behalf of
the Selling Stockholders expressly for use in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus. The Underwriters agree that the information furnished to the Company
specifically for use in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus includes only the
information relating to the Selling Shareholder set forth in Annex D hereto;
provided, further that the Selling Stockholders will not be liable to any
Underwriter insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; and provided further,
that the liability of the Selling Stockholders pursuant to this Section 8(b)
shall not exceed the product of the number of Shares sold by such Selling
Stockholders, including the Option Shares and the public offering price of the
Shares set out in the Prospectus.
(c) Indemnification of the Company and the Selling
Stockholders. Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act and each of the Selling Stockholders to the same extent as the indemnity set
forth in paragraph (a) above, but only with respect to any losses, claims,
damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, it being understood and agreed upon that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the [third] paragraph under the caption
"Underwriting" and the information relating to stabilization in paragraphs [13
through 15] under the caption "Underwriting".
21
(d) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification
may be properly sought pursuant to the preceding paragraphs of this Section 8,
such person (the "INDEMNIFIED PERSON") shall promptly notify the person against
whom such indemnification may be properly sought (the "INDEMNIFYING PERSON") in
writing; provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 8 except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this
Section 8. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 8 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding, as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel reasonably required to defend the claim) for
all Indemnified Persons, and that all such fees and expenses shall be paid or
reimbursed as they are incurred. Any such separate firm for any Underwriter, its
affiliates, directors and officers and any control persons of such Underwriter
shall be designated in writing by the Representatives, any such separate firm
for the Company, its directors, its officers who signed the Registration
Statement and any control persons of the Company shall be designated in writing
by the Company and any such separate firm for the Selling Stockholders shall be
designated in writing by the Attorneys-in-Fact. The Indemnifying Person shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for reasonable fees and expenses of counsel as contemplated
by this paragraph, the Indemnifying Person shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written
22
consent of the Indemnified Person (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such
proceeding.
(e) Contribution. If the indemnification provided for in
paragraphs (a), (b) and (c) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering of the Shares or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company
and the Selling Stockholders on the one hand and the Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Selling Stockholders from the sale of the Shares and
the total underwriting discounts and commissions received by the Underwriters in
connection therewith, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate offering price of the Shares. The relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Selling Stockholders or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(f) Limitation on Liability. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Selling Stockholders or the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in paragraph (e) above.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (e) above shall be
deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses incurred by such Indemnified Person in connection with
any such action or claim. Notwithstanding the provisions of this Section 8, in
no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Shares exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f)
23
of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 8 are several in proportion to their
respective purchase obligations hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
9. Effectiveness of Agreement. This Agreement shall become effective
upon the later of (i) the execution and delivery hereof by the parties hereto
and (ii) receipt by the Company and the Representatives of notice of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment thereto).
10. Termination. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company and the Selling
Stockholders, if after the execution and delivery of this Agreement and prior to
the Closing Date or, in the case of the Option Shares, prior to the Additional
Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade; (ii) trading of any securities issued or guaranteed by the Company shall
have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the
judgment of the Representatives, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement and the
Prospectus.
11. Defaulting Underwriter. (a) If, on the Closing Date or the
Additional Closing Date, as the case may be, any Underwriter defaults on its
obligation to purchase the Shares that it has agreed to purchase hereunder on
such date, the non-defaulting Underwriters may in their discretion arrange for
the purchase of such Shares by other persons satisfactory to the Company and the
Selling Stockholders on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters
do not arrange for the purchase of such Shares, then the Company and the Selling
Stockholders shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree
to purchase the Shares of a defaulting Underwriter, either the non-defaulting
Underwriters or the Company and the Selling Stockholders may postpone the
Closing Date or the Additional Closing Date, as the case may be, for up to five
full business days in order to effect any changes that in the opinion of counsel
for the Company, counsel for the Selling Stockholders or counsel for the
Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and the
Prospectus that
24
effects any such changes. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context otherwise
requires, any person not listed in Schedule I hereto that, pursuant to this
Section 11, purchases Shares that a defaulting Underwriter agreed but failed to
purchase.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters, the Company and the Selling Stockholders as
provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may
be does not exceed one-eleventh of the aggregate number of Shares to be
purchased on such date, then the Company and the Selling Stockholders shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares that such Underwriter agreed to purchase hereunder on such date plus such
Underwriter's pro rata share (based on the number of Shares that such
Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters, the Company and the Selling Stockholders as
provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may
be, exceeds one-eleventh of the aggregate amount of Shares to be purchased on
such date, or if the Company and the Selling Stockholders shall not exercise the
right described in paragraph (b) above, then this Agreement or, with respect to
any Additional Closing Date, the obligation of the Underwriters to purchase
Shares on the Additional Closing Date, as the case may be, shall terminate
without liability on the part of the non-defaulting Underwriters. Any
termination of this Agreement pursuant to this Section 11 shall be without
liability on the part of the Company and the Selling Stockholders, except that
the Selling Stockholders will continue to be liable for the payment of expenses
as set forth in Section 12 hereof and except that the provisions of Section 8
hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company, the Selling
Stockholders or any non-defaulting Underwriter for damages caused by its
default.
12. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Selling Stockholders will pay or cause to be paid all costs and expenses
incident to the performance of their respective obligations hereunder, including
without limitation, (i) the costs incident to the authorization, sale,
preparation and delivery of the Shares and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Preliminary Prospectus and the
Prospectus (including all exhibits, amendments and supplements thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing this
Agreement and the Custody Agreement and the Power of Attorney (excluding the
costs of underwriters' counsel); (iv) the fees and expenses of the Company's
counsel and independent accountants; (v) the fees and expenses incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Shares under the laws of such jurisdictions
25
as the Representatives may designate and the preparation, printing and
distribution of a Blue Sky Memorandum (including the related fees and expenses
of counsel for the Underwriters); (vi) the cost of preparing stock certificates;
(vii) the costs and charges of any transfer agent and any registrar; (viii) all
expenses and application fees incurred in connection with any filing with, and
clearance of the offering by, the National Association of Securities Dealers,
Inc.; (ix) all expenses incurred by the Company in connection with any "road
show" presentation to potential investors; and (x) all expenses and fees of the
Custodian.
(b) If (i) this Agreement is terminated pursuant to Section
10, (ii) the Selling Stockholders for any reason fail to tender the Shares for
delivery to the Underwriters or (iii) the Underwriters decline to purchase the
Shares for any reason permitted under this Agreement, the Selling Stockholders,
severally and not jointly, agree to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
(c) If (i) this Agreement is terminated pursuant to Section
10, (ii) the Selling Stockholders for any reason fail to tender the Shares for
delivery to the Underwriters or (iii) the Underwriters decline to purchase the
Shares for any reason permitted under this Agreement, the Selling Stockholders,
severally and not jointly, agree to reimburse the Company for all out-of-pocket
costs and expenses (including the fees and expenses of its counsel and its
independent auditors) reasonably incurred by the Company in connection with this
Agreement and the offering contemplated hereby.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and any controlling persons
referred to in Section 8 hereof. Nothing in this Agreement is intended or shall
be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
No purchaser of Shares from any Underwriter shall be deemed to be a successor
merely by reason of such purchase.
14. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Selling
Stockholders and the Underwriters contained in this Agreement or made by or on
behalf of the Company, the Selling Stockholders or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company, the Selling Stockholders or the
Underwriters.
15. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
26
16. Miscellaneous. (a) Authority of the Representatives. Any action by
the Underwriters hereunder may be taken by Deutsche Bank Securities Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc. on behalf of the Underwriters, and any such action
taken by Deutsche Bank Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. shall be
binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication. Notices to
the Underwriters shall be given to the Representatives: ▇.▇. ▇▇▇▇▇▇ Securities
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (fax: (212)
▇▇▇-▇▇▇▇); Attention: Syndicate Desk, and to Deutsche Bank Securities Inc., ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention:
Syndicate Desk and a copy to the General Counsel's Office (fax: (▇▇▇) ▇▇▇-▇▇▇▇),
with a copy to Shearman & Sterling LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq. (fax (▇▇▇) ▇▇▇-▇▇▇▇)).
Notices to the Company shall be given to it at ▇▇▇▇▇▇▇ Entertainment Company,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., with a copy to Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention:
F. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. Notices to the Selling Stockholders shall be given to
the Attorneys-in-Fact: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, c/o Oklahoma Publishing Company, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (fax: (▇▇▇) ▇▇▇-▇▇▇▇) with a copy to ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq. (fax: (▇▇▇) ▇▇▇-▇▇▇▇).
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(d) Consent to Jurisdiction. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby ("RELATED PROCEEDINGS") may be instituted in the federal
courts of the United States of America located in the City and County of New
York or the courts of the State of New York in each case located in the City and
County of New York (collectively, the "SPECIFIED COURTS"), and each party
irrevocably submits to the non-exclusive jurisdiction of such courts in any such
suit, action or proceeding (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a "RELATED JUDGMENT"), as to which
such jurisdiction is non-exclusive). Service of any process, summons, notice or
document by mail to such party's address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum.
(e) Counterparts. This Agreement may be signed in counterparts
(which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
27
(f) Amendments or Waivers. No amendment or waiver of any
provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the parties hereto.
(g) Headings. The headings herein are included for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
[SIGNATURE PAGE FOLLOWS]
28
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
▇▇▇▇▇▇▇ ENTERTAINMENT COMPANY
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
SELLING STOCKHOLDERS
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
As Attorneys-in-Fact acting
on behalf of each of the
Selling Stockholders named
in Schedule II to this
Agreement.
Accepted: ______________, 2004
DEUTSCHE BANK SECURITIES INC.
For itself and on behalf of the
several Underwriters listed
in Schedule I hereto.
By
------------------------------
Authorized Signatory
By
------------------------------
Authorized Signatory
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the
several Underwriters listed
in Schedule I hereto.
By
-------------------------------
Authorized Signatory
SCHEDULE I
Underwriter Number of Shares
Deutsche Bank Securities Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
----------------
Total 5,872,113
Schedule I
SCHEDULE II
Number of Number of
Selling Stockholders Underwritten Shares Option Shares
E. L. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Foundation........................... 3,043,479 456,521
GFI Company................................................... 1,829,362 274,404
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Everest..................................... 303,620 45,543
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇........................................ 695,652 104,348
------------------ ---------------
5,872,113 880,816
Schedule II
SCHEDULE III
List of Company Subsidiaries
[Company/▇▇▇▇ ▇▇▇▇▇ to provide]
Schedule III
SCHEDULE IV
List of Debt Instruments
[Company/▇▇▇▇ ▇▇▇▇▇ to provide]
Schedule IV
SCHEDULE V
List of Directors, Officers and Stockholders Subject to Lock-up Agreements
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇▇ ▇▇
E. ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
E. L. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Foundation
GFI Company
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Schedule V
ANNEX A
FORM OF OPINION OF ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ PLC, COUNSEL FOR THE COMPANY
(a) The Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion; the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule
424(b) under the Securities Act specified in such opinion on the date specified
therein; and no order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is pending or, to
the best knowledge of such counsel, threatened by the Commission.
(b) The Registration Statement and the Prospectus (other than the
financial statements, financial data and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act.
(c) The Company and each of its subsidiaries listed on Annex 1
attached hereto have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction
listed beside their names on Annex 1, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses as described in the Registration Statement and the Prospectus,
except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, result in a Material Adverse
Change.
(d) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been duly
and validly authorized and issued and are fully paid and non-assessable; the
capital stock of the Company conforms in all material respects to the
description thereof contained in the Registration Statement and the Prospectus;
and all the outstanding shares of capital stock or other equity interests of
each subsidiary of the Company listed in Annex 1 are owned, directly or
indirectly, of record or beneficially by the Company.
(e) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(f) The execution, delivery and performance by the Company of the
Underwriting Agreement, and compliance by the Company with the terms of, and
the consummation of the transactions contemplated by, the Underwriting
Agreement will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or a Debt Repayment Trigger Event
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement or other
agreement or instrument listed on Schedule IV to the Underwriting Agreement or
which has been filed or incorporated by reference as an exhibit to the
Annex A-1
Company's Annual Report on Form 10-K for the year ended December 31, 2003 (but
no opinion is given with respect to Exhibits 10.26-10.41 (Executive
Compensation Plans and Management Contracts) or with respect to any matters
which would require us to perform a mathematical calculation or make a
financial or accounting determination) (the "REVIEWED INSTRUMENTS"). The
execution and delivery of the Underwriting Agreement by the Company and the
compliance by the Company with all of their obligations under the Underwriting
Agreement and the consummation of the transactions contemplated hereby and
thereby (i) will not result in any violation of the provisions of the charter
or by-laws or comparable organizational documents of the Company or of any of
the subsidiaries listed on Annex I or (ii) to our knowledge will not result in
any violation of any applicable statute, judgment, order, rule or regulation
known to us of any court or federal, Tennessee or Delaware governmental agency
or body having jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets.
(g) No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory
authority is required for the execution, delivery and performance by the
Company of the Underwriting Agreement, and compliance by the Company with the
terms thereof and the consummation of the transactions contemplated by the
Underwriting Agreement, except for the registration of the Shares under the
Securities Act and such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of the Shares
by the Underwriters.
(h) To the knowledge of such counsel, there is no litigation
threatened or to which the Company or any of its subsidiaries is a party or of
which any property or assets of the Company or any of its subsidiaries is the
subject except as described in the Prospectus, or if not described therein,
would not, individually or in the aggregate with all other such actions, suits
and proceedings be reasonably expected to have, if adversely determined, a
Material Adverse Change on the Company and its subsidiaries considered as one
enterprise.
(i) The statements contained in the Prospectus under the captions
"Description of Capital Stock" and "Business -- Legal Proceedings" insofar as
such statements constitute matters of law, summaries of legal matters,
documents or legal proceedings, or legal conclusions, have been reviewed by us
and fairly present and summarize, in all material respects, the matters
referred to therein. To the knowledge of such counsel, there are no contracts
and other documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement that have not been so filed.
(j) The Company is not required to register as an "investment
company" within the meaning of the Investment Company Act.
(k) The documents incorporated by reference in the Prospectus or the
Additional Closing Date, as the case may be, (other than the financial
statements, financial data and related schedules therein, as to which such
counsel need express no opinion), when they became effective or were filed with
the Commission or last amended as of the date hereof, as the case may be,
complied as to form in all material respects with the requirements of the
Securities
Annex A-2
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
Such counsel shall also state that they have participated in
conferences with representatives of the Company and with representatives of its
independent accountants and counsel at which conferences the contents of the
Registration Statement and the Prospectus and any amendment and supplement
thereto and related matters were discussed, no facts have come to the attention
of such counsel to cause such counsel to believe that the Registration
Statement, at the time of its effective date (including the information, if
any, deemed pursuant to Rule 430A to be part of the Registration Statement at
the time of effectiveness), contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the Prospectus or any
amendment or supplement thereto as of its date and the Closing Date contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (other than the financial statements
and related notes and schedules and other financial data contained therein, as
to which such counsel need express no belief). In giving this opinion or
undertaking the above-described representation, such counsel has not verified
and is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus and any amendment and supplement thereto,
except to the extent set forth in paragraph (i) of this opinion.
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Company and public officials
that are furnished to the Underwriters.
The opinion of ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ PLC described above shall be rendered
to the Underwriters at the request of the Company and shall so state therein.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the federal laws of the United States of America
and the laws of the State of Tennessee and the Delaware General Corporation Law
and (ii) assume, for the purposes of the opinions expressed in paragraphs (f)
and (g) above with respect to an agreement that provides that it is governed by
the laws of the State other than Tennessee, that the internal laws of the State
of Tennessee would govern such agreements.
Annex A-3
ANNEX 1
LIST OF SIGNIFICANT SUBSIDIARIES OF THE COMPANY
[to be provided by ▇▇▇▇ ▇▇▇▇▇/Company]
Annex A-1
ANNEX A1
FORM OF OPINION OF FLORIDA COUNSEL FOR THE COMPANY
Annex A-1
ANNEX B
FORM OF OPINION OF ▇▇▇▇▇▇▇ LLP, COUNSEL FOR
THE SELLING STOCKHOLDERS
(a) The Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of each of the Selling Stockholders.
(b) A Custody Agreement and Power of Attorney have been duly
authorized, executed and delivered by each Selling Stockholder and constitute
valid and binding agreements of each Selling Stockholder in accordance with
their terms.
(c) The sale of the Shares and the execution and delivery by each
Selling Stockholders of, and the performance by each Selling Stockholders of
its obligations under, the Underwriting Agreement, and the consummation of the
transactions contemplated therein, (i) have been duly authorized on the part of
each of the Selling Stockholders, and (ii) will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which any Selling Stockholder is a party or by which
any Selling Stockholder is bound or to which any of the property or assets of
any Selling Stockholder is subject, nor will any such action result in any
violation of the provisions of the charter or by-laws or similar organizational
documents of any Selling Stockholder in the case of a Selling Shareholder that
is not an individual or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
such Selling Stockholder or any of its 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 sale of the Shares or the
consummation by the Selling Stockholders of the transactions contemplated by
the Underwriting Agreement, except such consents, approvals, authorizations,
registrations or qualifications as have been obtained under the Securities Act
and as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters, except as
would not have a material adverse effect, which for the purposes of this
opinion would exclude such consents, approvals, authorizations, registrations
or qualifications that if not obtained may have an adverse effect on the
transfer of the Shares to the Underwriters or in any way restrict such transfer
of Shares pursuant to the Underwriting Agreement.
Annex B-1
ANNEX B1
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇ & PRIEST LLP, NEW YORK COUNSEL FOR
THE SELLING STOCKHOLDERS
(a) Each Selling Shareholder has full right, power and authority to
sell, transfer and deliver such Shares pursuant to the Underwriting Agreement.
Assuming that (i) the certificate or certificates representing the Shares to be
sold by such Selling Shareholder pursuant to the Underwriting Agreement have
been effectively indorsed in blank in accordance with NYUCC Article 8 and (ii)
the Underwriters are without notice of any adverse claim to the Shares, then,
upon the Underwriters' acquiring possession of such certificate or certificates
for the Shares and paying the purchase price therefore pursuant to the
Underwriting Agreement, each Underwriter will be a "protected purchaser" of the
Shares to be purchased by it (within the meaning of Section 8-303 of the NYUCC)
and will acquire its interest in such Securities (including, without
limitation, all rights that such Selling Shareholder had or has the power to
transfer in such Shares) free of any adverse claim.
Annex B-1
ANNEX C
[FORM OF LOCK-UP AGREEMENT]
[o], 2004
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Deutsche Bank Securities Inc.
As Representatives of the
several Underwriters listed
in Schedule I of the Underwriting Agreement
----------
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇ Entertainment Company--- Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the
several Underwriters, propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with ▇▇▇▇▇▇▇ Entertainment Company, a Delaware
corporation (the "COMPANY"), providing for the public offering (the "PUBLIC
OFFERING") by the several Underwriters named in Schedule I to the Underwriting
Agreement (the "UNDERWRITERS"), of the common stock of the Company (the
"SECURITIES"). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters' agreement to purchase and make
the Public Offering of the Securities, and for other good and valuable
consideration receipt of which is hereby acknowledged, the undersigned hereby
agrees that, without the prior written consent of the Representatives on behalf
of the Underwriters, the undersigned will not, during the period ending 90 days
after the date of the final prospectus relating to the Public Offering (the
"PROSPECTUS"), (1) offer, pledge, announce the intention to sell, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock, $0.01 per share par value, of the Company (the "COMMON STOCK") or any
securities convertible into or exercisable or exchangeable for Common Stock
(including without limitation, Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules
Annex C-1
and regulations of the Securities and Exchange Commission and securities which
may be issued upon exercise of a stock option or warrant) or (2) enter into any
swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. In addition,
the undersigned agrees that, without the prior written consent of the
Representatives on behalf of the Underwriters, it will not, during the period
ending 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for
Common Stock.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned
has full power and authority to enter into this Letter Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does
not become effective, or if the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Common Stock to be sold thereunder,
the undersigned shall be released from all obligations under this Letter
Agreement.
The undersigned understands that the Underwriters are entering into
the Underwriting Agreement and proceeding with the Public Offering in reliance
upon this Letter Agreement.
[SIGNATURE PAGE FOLLOWS]
Annex C-2
This lock-up agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws principles thereof.
Very truly yours,
[NAME OF STOCKHOLDER/DIRECTOR/OFFICER]
By:
---------------------------------------
Name:
Title:
Annex C-3
ANNEX D
Information Provided by Selling Stockholders
All the information in the Prospectus and the Preliminary Prospectus
under the Caption "Selling Stockholders."
Annex D-1