▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
_____Shares of Common Stock
Underwriting Agreement
______________, 2002
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters listed in Schedule 1
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of _______ shares of common stock, par value
$0.01 per share, of the Company (the "Underwritten Shares") and, for the sole
purpose of covering over-allotments in connection with the sale of the
Underwritten Shares, at the option of the Underwriters, up to an additional
________ shares of common stock of the Company (the "Option Shares"). The
Underwritten Shares and the Option Shares are herein referred to as the
"Shares". The shares of common stock of the Company to be outstanding after
giving effect to the sale of the Shares are herein referred to as the "Stock".
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 meets the requirements for use
of Form S-3 under the Securities Act and has prepared and filed with the
Commission a registration statement (file number 333-[ ]) on Form S-3, including
a related basic prospectus, for registration under the Securities Act of the
offering and sale of the Shares. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will next file with the Commission
one of the following: (a) after the Effective Date of such
registration statement, a final prospectus supplement relating to the Shares in
accordance with Rules 430A and 424(b), (b) prior to the Effective Date of such
registration statement, an amendment to such registration statement (including
the form of final prospectus supplement) or (c) a final prospectus in accordance
with Rules 415 and 424(b). In the case of clause (a), the Company has included
in such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Securities Act
and the rules thereunder to be included in such registration statement and the
Final Prospectus. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth
in Rule 415(a)(1)(x).
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 13 hereof.
2. Purchase of the Shares by the Underwriters. (a) The Company agrees
to issue and 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 the Company the respective
number of Underwritten Shares set forth opposite such Underwriter's name in
Schedule 1 hereto at a price per share (the "Purchase Price") of $ .
In addition, the Company agrees to issue and sell the Option Shares to
the several Underwriters as provided in this Agreement, and the Underwriters, on
the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, shall have the option to purchase,
severally and not jointly, from the
Company the Option Shares at the Purchase Price, for the sole purpose of
covering over-allotments (if any) in the sale of Underwritten Shares by the
several Underwriters.
If any Option Shares are to be purchased, the number of Option Shares
to be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as
the number of Underwritten Shares set forth opposite the name of such
Underwriter in Schedule 1 hereto (or such number increased as set forth in
Section 9 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company by the several Underwriters, subject, however, to
such adjustments to eliminate any fractional Shares as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares
in whole or in part at any time or from time to time on or before the thirtieth
day following the date of this Agreement, by written notice from the
Representatives to the Company. Such notice shall set forth the aggregate number
of Option Shares as to which the option is being exercised and the 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 9 hereof). Any such
notice shall be given at least two business days prior to the date and time of
delivery specified therein.
(b) The Company understands 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 Final Prospectus. The Company
acknowledges and agrees 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 Company to the
Representatives in the case of the Underwritten Shares, at the offices of
Cravath, Swaine & ▇▇▇▇▇ at 10:00 A.M. New York City time on _____ , 2002, 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 Company 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 is 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, is 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 Company. 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 that:
(a) Registration Statement and Prospectus. No order suspending the
use of the Registration Statement has been issued by the Commission and no order
preventing or suspending the use of any Preliminary Final Prospectus or Final
Prospectus has been issued by the Commission. On the Effective Date, the
Registration Statement did or will, on the date any Preliminary Final Prospectus
is first filed, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein) and the
Additional Closing Date (as defined herein) as the case may be, the Final
Prospectus (and any amendment or supplement thereto) will, conform in all
material respects with the requirements of the Securities Act and the Exchange
Act, as applicable; on the Effective Date and at the Execution Time, the
Registration Statement 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, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), will
not, and on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and as of the Additional Closing Date, as the case may be, the Final
Prospectus (together with any amendment or supplement thereto) 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, however, that the Company makes no representation and
warranty with respect to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any amendment or supplement
thereto) 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 or the Final
Prospectus (or any amendment or supplement thereto).
(b) Incorporated Documents. The documents incorporated by
reference in the Final Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and none
of such documents 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 Final 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 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.
(c) Financial Statements. The financial statements and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Final Prospectus comply in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly the financial position of the Company and its
subsidiaries as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods covered thereby,
and the supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; the other financial information included or incorporated by reference
in the Registration Statement and the Final Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents fairly the
information shown thereby; and the pro forma financial information and the
related notes thereto included or incorporated by reference in the Registration
Statement and the Final Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange Act, as
applicable, and the assumptions underlying such pro forma financial information
are reasonable and are set forth in the Registration Statement and the Final
Prospectus.
(d) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference in the
Registration Statement and the Final Prospectus, (i) there has not been any
material decrease in the capital stock or material increase in long-term debt of
the Company or any of its subsidiaries, or any dividend or distribution of any
kind declared, set aside for payment, paid or made by the Company or any of its
subsidiaries on any class of capital stock, or any material adverse change, or
any development involving a prospective material adverse change, in or affecting
the general affairs, business, properties, management, financial position,
stockholders' equity, results of operations or prospects of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is material to
the Company and its subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in the Registration Statement and the
Final Prospectus.
(e) Organization and Good Standing. The Company and each of its
subsidiaries 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 in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the general affairs, business,
properties, management, financial position, stockholders' equity, results of
operations or prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"). As of the date hereof, the Company does not own or
control, directly or indirectly, any corporation, association or other entity
other than the subsidiaries listed in Schedule 2 to this Agreement.
(f) Capitalization. The Company has an authorized capitalization
as set forth in the Final Prospectus under the heading "Capitalization"; all the
outstanding shares of capital stock of the Company 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; except as described in or expressly
contemplated by the Final Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options to
acquire, 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 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 maximum number of shares of common
stock of the Company issuable upon exercise of the rights (the "Rights") to be
issued to the holders of shares of the common stock of the Company is [ ]
shares; the capital stock of the Company conforms in all material respects to
the description thereof contained in the Registration Statement and the Final
Prospectus; and the Company's percentage ownership of shares of capital stock or
other equity interests of each subsidiary of the Company is set forth on
Schedule 2 (the "Company's Subsidiary Equity Interests") and the Company's
Subsidiary Equity Interests have been duly and validly authorized and issued,
are fully paid and non-assessable (except, in the case of any foreign
subsidiary, for directors' qualifying shares and except as otherwise described
in the Final Prospectus) and are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest, restriction
on voting or transfer or any other claim of any third party.
(g) Due Authorization. The Company has full right, power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder; and all action (corporate and other) required to be taken for the due
and proper authorization, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby has been duly and validly
taken.
(h) Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(i) The Shares. The Shares to be issued and sold by the Company
hereunder have been duly authorized by the Company and, when issued and
delivered and paid for as provided herein, will be duly and validly issued and
will be fully paid and nonassessable and will conform to the descriptions
thereof in the Final Prospectus; and the issuance of the Shares is not subject
to any preemptive or similar rights.
(j) No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject; 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, have a Material
Adverse Effect.
(k) Material Agreements. The documents listed on Schedule 3 hereto
(the "Material Contracts"), constitute all material agreements and instruments
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject.
(l) No Conflicts. The execution, delivery and performance by the
Company of this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated hereby 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 the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of the Company or any of its
subsidiaries 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 authority, except, in the case of clauses (i) and (iii) above, for
any such conflict, breach or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(m) No Consents Required. 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 this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated hereby, 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.
(n) Legal Proceedings. Except as described in the Final
Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject that, individually or in the
aggregate, if determined adversely to the Company or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its obligations under
this Agreement; to the best knowledge of the Company no such investigations,
actions, suits or proceedings are threatened or contemplated by any governmental
or regulatory authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are
required under the Securities Act to be described in the Final Prospectus that
are not so described and (ii) there are no statutes, regulations or contracts or
other documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement or described in the Registration
Statement or the Final Prospectus that are not so filed or described.
(o) Independent Accountants. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have
certified certain financial statements of the Company and its subsidiaries,
Ernst & Young LLP, who have certified certain financial statements of ▇▇▇▇▇▇
Group L.L.C. and TAC - Trim, KPMG LLP who have certified certain financial
statements of ▇▇▇▇ Automotive Industries, Inc., and the Company's current
auditors, PricewaterhouseCoopers LLC ("PWC") are each independent public
accountants with respect to the entity for which they have certified financial
statements or, in the case of PWC, the Company and its subsidiaries, in each
case, within the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants and its interpretations and
rulings thereunder; and the Company has made reasonable efforts to obtain a
written consent from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in connection with each amendment to
the Registration Statement and such efforts have been unsuccessful.
(p) Title to Real and Personal Property. Except as described in
the Final Prospectus, the Company and its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property that are material to the respective
businesses of the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries or
(ii) could not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect.
(q) Title to Intellectual Property. The Company and its
subsidiaries own or possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark registrations,
service ▇▇▇▇ registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their
respective businesses; and the conduct of their respective businesses will not
conflict in any material respect with any such rights of others, and the Company
and its subsidiaries have not received any notice of any claim of infringement
or conflict with any such rights of others.
(r) 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 Final
Prospectus and that is not so described.
(s) Investment Company Act. Neither the Company nor any of its
subsidiaries is, and after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof as described in the Final
Prospectus, none of them will be, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, "Investment Company Act").
(t) Public Utility Holding Company Act. Neither the Company nor
any of its subsidiaries is a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(u) Taxes. The Company and its subsidiaries have paid all federal,
state, local and foreign taxes and filed all tax returns required to be paid or
filed through the date hereof; and except as otherwise disclosed in the Final
Prospectus, there is no material tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any of its
subsidiaries or any of their respective properties or assets.
(v) Licenses and Permits. The Company and its subsidiaries possess
all licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement and the Final
Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect; and except as
described in the Final Prospectus, neither the Company nor any of its
subsidiaries has
received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such
license, certificate, permit or authorization will not be renewed in the
ordinary course.
(w) No Labor Disputes. Except as described in the Final
Prospectus, no labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the Company, is
contemplated or threatened.
(x) Compliance With Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any and all applicable federal, state,
local and foreign laws, rules, regulations, decisions and orders relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, "Environmental
Laws"); (ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except in any such case for any such failure to comply, or failure to receive
required permits, licenses or approvals, or liability as would not, individually
or in the aggregate, have a Material Adverse Effect.
(y) Compliance With ERISA. Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the "Code"); no prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code, has occurred with respect to any such
plan excluding transactions effected pursuant to a statutory or administrative
exemption; for each such plan that is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA, no "accumulated funding deficiency" as
defined in Section 412 of the Code has been incurred, whether or not waived, and
the fair market value of the assets of each such plan (excluding for these
purposes accrued but unpaid contributions) exceeds the present value of all
benefits accrued under such plan determined using reasonable actuarial
assumptions; and there has been no termination or partial termination of any
such plan that is subject to Title IV of ERISA that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(z) Accounting Controls. The Company and its subsidiaries maintain
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (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 the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(aa) Insurance. The Company and its subsidiaries have insurance
covering their respective properties, operations, personnel and businesses,
including business interruption insurance, which insurance is in amounts and
insures against such losses and risks as are adequate to protect the Company and
its subsidiaries and their respective businesses; and neither the Company nor
any of its subsidiaries has (i) received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
(bb) No Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the best knowledge of the Company, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(cc) No Restrictions on Subsidiaries. Except with respect to
Plascar Industria e Comerico Ltda, CW Management Corporation, ▇▇▇▇▇▇▇ Services,
Inc. and SAF Services Corporation, no subsidiary of the Company is currently
prohibited, directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the Company,
from making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's properties or assets to
the Company or any other subsidiary of the Company.
(dd) 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.
(ee) 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 the issuance and sale of the Shares, or, if such rights exist,
all such rights have been waived in writing and a copy of each such waiver has
been provided to the Representatives.
(ff) No Stabilization. The Company has not taken, 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.
(gg) Business With Cuba. The Company has complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida) relating to doing business with the Government of Cuba or with any
person or affiliate located in Cuba.
(hh) Margin Rules. Neither the issuance, sale and delivery of the
Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Final Prospectus will violate Regulation
T, U or X of the Board of Governors of the Federal Reserve System or any other
regulation of such Board of Governors.
(ii) Forward-Looking Statements. No forward-looking statement
(within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement and the Final Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(jj) Statistical and Market Data. Nothing has come to the
attention of the Company that has caused the Company to believe that the
statistical and market-related data included in the Registration Statement and
the Final Prospectus is not based on or derived from sources that are reliable
and accurate in all material respects.
4. 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, if not
effective at the Execution Time, and any amendment thereof, to become effective.
Subject to paragraph (c) below, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will use its reasonable best efforts 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 Final 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
Final Prospectus to the Underwriters in New York City prior to 10:00 A.M., New
York City time, on the business day next succeeding
the date of this Agreement in such quantities as the Representatives may
reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge,
(i) to the Representatives, five 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 each Preliminary Final
Prospectus and the Final 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 supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any
Rule 462(b) Registration Statement, 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 object.
(d) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when the
Registration Statement, if not effective at the Execution Time, has become
effective; (ii) when any amendment to the Registration Statement has been filed
or becomes effective; (iii) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission; (iv) of any request by the Commission for any amendment to
the Registration Statement or any Rule 462(b) Registration Statement or any
amendment or supplement to the Final 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 Final
Prospectus or the Final 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 Final 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 Final 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 Final Prospectus or the
Final 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 Final 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 Final Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the
Registration Statement or the Final 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 Registration Statement or the Final Prospectus
as may be necessary so that the statements in the Registration Statement or the
Final Prospectus as so amended or supplemented, as the case may be, will not, in
the light of the circumstances existing when the Final Prospectus is delivered
to a purchaser, be misleading or so that the Registration Statement or the Final
Prospectus, as the case may be, 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 120 days after the date of the
initial public offering of the Shares, 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, (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, (iii) amend the terms of the Rights or otherwise permit exercise of
the Rights or (iv) waive or amend the terms of any contractual restriction on
the transfer of shares of Stock, whether any such transaction described in
clause (i), (ii) or (iii) above is to be settled by delivery of Stock or such
other securities, in cash or otherwise, without the prior written consent of
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities
Inc., other than (i) the sale and issuance of the Shares to be sold hereunder,
(ii) any shares of Stock of the Company issued upon the exercise of options
granted under existing employee stock option plans and (iii) shares of Stock of
the Company issued as consideration in an acquisition transaction, provided that
any recipient of shares of Stock of the Company in such an acquisition
transaction agrees in writing to be bound by the transfer restrictions set forth
in clauses (i) and (ii) above for the remainder of such 120-day period.
(i) Use of Proceeds. The Company will apply the net proceeds from
the sale of the Shares as described in the Final Prospectus under the heading
"Use of Proceeds".
(j) No Stabilization. The Company 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.
(k) Exchange Listing. The Company will use its best efforts to
list, subject to notice of issuance, the Shares on the New York Stock Exchange
(the "Exchange").
(l) 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.
5. 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 of its covenants and other
obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If the Registration
Statement has not become effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the Registration Statement
will become effective not later than (i) 5:00 PM New York City time on the date
of determination of the public offering price, if such determination occurred at
or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
business day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City time on
such date; if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in
the manner and within the time period required by Rule 424(b); 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 Final Prospectus shall have been timely filed with the
Commission under the Securities Act and in accordance with Section 4(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 representations and
warranties of the Company 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 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.
(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 Time
or, if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any amendment or supplement thereto), 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 Final 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 Final 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 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 (i) confirming that such officers have
carefully reviewed the Registration Statement and the Final Prospectus and, to
the best knowledge of such officers, the representation set forth in Section
3(b) hereof is true and correct, (ii) 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
(iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the
Closing Date or the Additional Closing Date, as the case may be, each of
PricewaterhouseCoopers LLP, Ernst & Young LLP and KPMG 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 Final 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.
(g) Opinion of Counsel for the Company. ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
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,
substantially to the effect set forth in clauses (i)-(vi), (viii), (ix), (xi)
and (xii) and the third to last paragraph of Annex A hereto and ▇▇▇ ▇▇▇▇▇▇▇,
Esq., General Counsel for the Company shall have furnished to the
Representatives, at the request of the Company, his 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, substantially to the effect set forth in clauses (vii), (x) and
(xiii) of Annex A hereto.
(h) 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 Cravath, Swaine & ▇▇▇▇▇, 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.
(i) No Legal Impediment to Issuance. 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 issuance or 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
issuance or sale of the Shares.
(j) 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.
(k) Exchange Listing. The Shares to be delivered on the Closing
Date or Additional Closing Date, as the case may be, shall have been approved
for listing on the Exchange, subject to official notice of issuance.
(l) Lock-up Agreements. The "lock-up" agreements, each
substantially in the form of Exhibit A hereto, between you and the shareholders,
officers and directors of the Company identified on Annex B hereto relating to
sales and certain other dispositions of shares of 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 Additional Closing Date, as the case may be.
(m) Rights. The terms of the Rights shall not have been amended by
the Company or the holders thereof.
(n) Reverse Stock Split. The one-for-two and one-half reverse
stock split approved by the holders of the shares of common stock of the Company
on May 16, 2002 shall have been completed on the terms approved by such holders.
(o) Accounting Certificate. On or prior to the Closing Date or the
Additional Closing Date, as the case may be, the Company shall have furnished to
the Representatives such further certificates and documents as the
Representatives may reasonably request evidencing the derivation from the
Company's accounting books and records of financial statements or other
financial data included or incorporated by reference in the Registration
Statement and the Final Prospectus (or any amendment or supplement thereto) for
periods during which the Company's financial statements were audited by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP.
(p) Additional Documents. On or prior to the Closing Date or the
Additional Closing Date, as the case may be, the Company 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.
6. Indemnification and Contribution.
(a) Indemnification of the Underwriters. 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, the Basic Prospectus or the Final Prospectus (or any amendment or
supplement thereto) or any Preliminary Final 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 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 (b) below; provided, that with
respect to any such untrue statement in or omission from any Preliminary Final
Prospectus, the indemnity agreement contained in this paragraph (a) shall not
inure to the benefit of any Underwriter to the extent that the sale to the
person asserting any such loss, claim, damage or liability was an initial resale
by such Underwriter and any such loss, claim, damage or liability of or with
respect to such Underwriter results from the fact that both (i) to the extent
required by applicable law, a copy of the Final Prospectus was not sent or given
to such person at or prior to the written confirmation of the sale of such
Shares to such person and (ii) the untrue statement in or omission from such
Preliminary Final Prospectus was corrected in the Final Prospectus unless, in
either case, such failure to deliver the Final Prospectus was a result of
non-compliance by the Company with the provisions of Section 4 hereof.
(b) Indemnification of the Company. 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 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 Final
Prospectus (or any amendment or supplement thereto) or any Preliminary Final
Prospectus, it being understood and agreed upon that the only such information
furnished by any Underwriter consists of the following information in the Final
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the _______ paragraph under the caption
"Underwriting" and the information contained in the ________ paragraph under the
caption "Underwriting".
(c) 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 sought pursuant to either paragraph (a) or (b) above, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be 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 6 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 6. 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 6 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) 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
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities
Inc. and 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. 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 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 30 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 consent of the Indemnified
Person, 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 (x) 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 and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) Contribution. If the indemnification provided for in
paragraphs (a) and (b) 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 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 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 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 Company 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 Final Prospectus, bear to the
aggregate offering price of the Shares. The relative fault of the Company 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 or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 6, 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) 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 6 are several in proportion
to their respective purchase obligations hereunder and not joint.
(f) Registration Rights. 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 failure or alleged failure
by the Company to comply with the terms of the Registration Rights Agreements in
connection with the transactions contemplated by this Agreement.
(g) Non-Exclusive Remedies. The remedies provided for in this
Section 6 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.
7. 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).
8. Termination. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company, 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
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 or a material disruption has occurred in
commercial banking or securities settlement or clearance systems in the United
States; (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 Final Prospectus.
9. 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 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 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 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 or counsel for the Underwriters may be necessary in the Registration
Statement and the Final 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 Final Prospectus that 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 1 hereto that, pursuant to this Section 9, 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 and the Company 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 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 and the Company 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 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 9 shall be without
liability on the part of the
Company, except that the Company will continue to be liable for the payment of
expenses as set forth in Section 10 hereof and except that the provisions of
Section 6 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 or any non-defaulting Underwriter for
damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company will pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation, (i) the
costs incident to the authorization, issuance, 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 Final Prospectus
(including all exhibits, amendments and supplements thereto) and the
distribution thereof; (iii) the fees and expenses of the Company's counsel and
independent accountants, including the counsel and accountants of any acquired
business or company; (iv) 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 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); (v) the cost of preparing stock certificates; (vi) the costs and
charges of any transfer agent and any registrar; (vii) 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.; (viii)
all expenses incurred by the Company in connection with any "road show"
presentation to potential investors; and (ix) all expenses and application fees
related to the listing of the Shares on the Exchange.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the
Company for any reason fails 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 Company agrees 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.
11. 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 6 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.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company 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 or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, the
following terms shall have the following meanings:
"Affiliate" shall have the meaning set forth in Rule 405 under the
Securities Act, except where otherwise expressly provided.
"Basic Prospectus" shall mean the prospectus referred to in
Section 1 contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"business day" shall mean any day other than a day on which banks
are permitted or required to be closed in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments thereto and
any Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating
to the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the Securities and
the offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Rights Agreements" shall mean (a) the Registration
Rights Agreement, dated February 23, 2001, by and among Blackstone Capital
Company II, L.L.C., Heartland Industrial Partners, L.P., ▇▇▇▇▇▇▇▇▇▇▇/C&A
Holdings, L.L.C. and
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, (b) the Registration Rights Agreement, dated July
3, 2001, by and among ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Jens Hohnel, the
▇▇▇▇ Investors and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, (c) the Registration Rights
Agreement, dated December 20, 2001, by and between Textron Inc., Textron Holdco
Inc. and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, (d) the Preferred Stock Registration and
other Rights Agreement, dated as of December 20, 2001, among ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Products Co. and Textron Inc., (e) the Registration Rights Agreement, dated
December 20, 2001, by and among ▇▇▇▇▇▇ Ventures, LLC, Canada Pension Plan
Investment Board, Comerica Capital Advisors Incorporated, Dresdner Kleinwort
Capital Partners 2001 LP, Masco Capital Corporation, Mesirow Capital Partners
VIII, L.P., ML IBK Positions, Inc. and Collin & ▇▇▇▇▇▇ Corporation, (f) the
Registration Rights Agreement, dated April 12, 2002, by and between ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ Corporation and ▇. ▇▇▇▇▇▇▇▇, and (g) the Registration Rights Agreement,
dated December 20, 2001, by and among ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Products Co., ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ Corporation, and each of the subsidiaries listed on the signature page
thereof, and ▇▇ ▇▇▇▇▇▇ Securities Inc., Credit Suisse First Boston Corporation,
Deutsche Banc Alex. ▇▇▇▇▇ Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and the other parties thereto.
"Registration Statement" shall mean the registration statement
referred to in Section 1, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time, in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement, as the case
may be. Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the registration statement referred to in Section 1(a)
hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"subsidiary" shall have the meaning set forth in Rule 405 under
the Securities Act.
14. Miscellaneous. (a) Authority of the Representatives. Any
action by the Underwriters hereunder may be taken by ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities Inc. on behalf of the
Underwriters, and any such action taken by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated 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 c/o Merrill Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (fax: ); Attention: Equity Capital Markets; and ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax:______);
Attention: Equity Capital Markets. Notices to the Company shall be given to it
at ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention: Chief Financial Officer, with a copy by fax to
the attention of the General Counsel (▇▇▇) ▇▇▇-▇▇▇▇.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(d) 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.
(e) 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.
(f) 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.
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,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
By:
------------------------------
Name:
Title:
Accepted: __________, 2002
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
For themselves and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
------------------------------
Name:
Title:
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
------------------------------
Name:
Title:
Schedule 1
Underwriter Number of Shares
----------- ----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
---------------
Total