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EXHIBIT 1.1
XXX XXXXXXXX XXXXXXX
(a Delaware corporation)
40,895,000 SHARES OF COMMON STOCK, $1.00 PAR VALUE
Underwriting Agreement Standard Provisions
July 23, 2001
XXXXXXX, SACHS & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Certain stockholders named in Schedule I hereto (the "SELLING
STOCKHOLDERS") of Xxx Xxxxxxxx Xxxxxxx, a Delaware corporation (the "COMPANY"),
have entered into this agreement (the "UNDERWRITING AGREEMENT") and from time to
time may enter into one or more terms agreements that provide for the sale, to
you (the "REPRESENTATIVES") and the other underwriters, if any, named in each
such terms agreement (collectively, the "UNDERWRITERS"), a number of shares of
Common Stock, par value $1.00 per share, of the Company (the "UNDERWRITTEN
SHARES") designated therein and, for the sole purpose of covering
over-allotments in connection with each such sale of Underwritten Shares, at the
option of such Underwriters, additional shares of Common Stock of the Company
designated therein (the "OPTION SHARES") as is applicable with respect to each
such sale of Underwritten Shares. The standard provisions set forth herein may
be incorporated by reference in any such terms agreement (a "TERMS AGREEMENT").
The Underwritten Shares and the Option Shares are herein referred to as the
"SHARES". The outstanding shares of Common Stock of the Company are herein
referred to as the "STOCK". In no event shall the aggregate number of Shares
sold pursuant to this Underwriting Agreement and
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each of the Terms Agreements hereto exceed the total number of Shares covered by
this Underwriting Agreement. The Stock, including the Shares, has attached
thereto rights (the "RIGHTS") to purchase one ten-thousandth of a share of
Series A Junior Participating Preferred Stock for $225 per share exercisable
only upon the occurrence of certain events. The Rights have been issued pursuant
to a Rights Agreement (the "RIGHTS AGREEMENT") dated as of December 14, 1995
between the Company and The First National Bank of Boston, as Rights Agent.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Shares and the attached
Rights and including any prospectus supplements (each a "PROSPECTUS SUPPLEMENT")
specifically relating to the Shares offered thereby which the Company proposes
to file with, or transmit for filing to, the Commission from time to time
pursuant to Rule 424 under the Securities Act, referred to in this Agreement as
the "REGISTRATION STATEMENT," which includes exhibits thereto, as amended to the
date of the applicable Terms Agreement. The term "BASIC PROSPECTUS" means the
prospectus included in the Registration Statement. The term "PROSPECTUS" means
the Basic Prospectus together with any applicable Prospectus Supplement. The
term "PRELIMINARY PROSPECTUS" means a preliminary prospectus supplement
specifically relating to the Shares, if any. Any reference in this Underwriting
Agreement to the Registration Statement, the Basic Prospectus, 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.
The Company and each of the Selling Stockholders hereby agrees with the
Underwriters as follows:
1. Each sale of Shares to the Underwriters shall be made in accordance
with the terms of this Underwriting Agreement. In connection with each such sale
the Company and the Selling Stockholders will enter into a Terms Agreement with
the Underwriters that will provide for the sale of such Shares by the Selling
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Stockholders to and the purchase thereof by the Underwriters. Each Terms
Agreement will be substantially in the form of Exhibit A hereto.
Each sale of Shares by the Selling Stockholders to the Underwriters and
each purchase of such Shares by each Underwriter pursuant to a Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated.
Each Terms Agreement shall specify the aggregate number of Underwritten Shares
to be sold thereby, the purchase price per share, the number of Underwritten
Shares to be sold by each of the Selling Stockholders, the aggregate number of
Underwritten Shares to be purchased by each Underwriter and the aggregate number
of Option Shares, if any.
In addition, each sale of the number of Option Shares that relates to the
Underwritten Shares sold by the Selling Stockholders pursuant to the applicable
Terms Agreement and the option to purchase all or some of such Option Shares
granted to the Underwriters shall be deemed to have been made on the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated. The purchase of such Option Shares will be at the
purchase price per share of the applicable Underwritten Shares and on terms
further described in the applicable Terms Agreement. Any purchase of Option
Shares shall be made from each Selling Stockholder in proportion to the number
of Option Shares to be sold by each such Selling Stockholder pursuant to the
applicable Terms Agreement.
The Underwriters may exercise the option to purchase the Option Shares at
any time from time to time on or before the thirtieth day following the date of
the applicable Terms Agreement, by written notice from you, on behalf of the
Underwriters, to the Selling Stockholders and 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 any Closing Date designated in a
Terms Agreement (as hereinafter defined) but shall not be earlier than such
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.
2. The Company and the Selling Stockholders understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
the parties hereto have executed and delivered the applicable Terms Agreement,
as in
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the judgment of the Representatives is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
3. Except as otherwise provided in this Section 2 or this Section 3,
payment for the Shares shall be made by wire transfer in immediately available
funds to the account specified by the Selling Stockholders at such time and
place as set forth in the Terms Agreement or as you and the Selling Stockholders
may otherwise agree in writing or, in the case of the Option Shares, on the date
and time specified by you in the written notice of the Underwriters' election to
purchase such Option Shares. The place, time and date of such payment for the
Shares shall be specified in the applicable Terms Agreement and referred to as
the "CLOSING DATE" and the time and date for such payment for the Option Shares,
if other than the Closing Date, are referred to as the "ADDITIONAL CLOSING
DATE". As used herein, 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.
Payment for the Shares to be purchased on any Closing Date or any
Additional Closing Date, as the case may be, shall be made against delivery to
you for the respective accounts of the Underwriters of the Shares to be
purchased on such date registered in such names and in such denominations as you
shall request in writing not later than two full Business Days prior to the date
of delivery, with any transfer taxes payable in connection with the transfer to
the Underwriters of the Shares duly paid by the Selling Stockholders. The
certificates for the Shares will be made available for inspection and packaging
by you at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 not later than 1:00 P.M., New York City time, on the Business Day
prior to any date of delivery.
4. (a) The Company represents and warrants to each Underwriter and the
Selling Stockholders that:
(i) the Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Company, threatened by the Commission; and the
Registration Statement and Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all material
respects with the Securities Act and do not and will not, as of its
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or
omit to state any
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material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
the foregoing representations and warranties shall not apply to
statements or omissions in the Registration Statement and any
amendment thereto or the Prospectus and any amendment or supplement
thereto made in reliance upon and in conformity with information
relating to (x) any Underwriter furnished to the Company in writing by
such Underwriter or through the Representatives expressly for use
therein and (y) any Selling Stockholder furnished to the Company in
writing by such Selling Stockholder expressly for use therein (the
"SELLING STOCKHOLDER INFORMATION");
(ii) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Exchange Act, and none of such documents when they became
effective or were filed with the Commission contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(iii) except as noted therein, the consolidated financial
statements, and the related notes thereto, 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 and changes in their consolidated cash
flows for the periods specified; and said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules
incorporated by reference in the Registration
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Statement present fairly in all material respects the information
required to be stated therein; and the pro forma financial
information, and the related notes thereto, incorporated by reference
in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and
the Exchange Act, as applicable;
(iv) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any material change in the capital stock of the Company or long-term
debt of the Company and its consolidated subsidiaries taken as a whole
or any material adverse change, or any known development involving the
reasonable likelihood of a prospective material adverse change, in the
business, operations or financial condition, of the Company and its
consolidated subsidiaries, taken as a whole, otherwise, in each case,
than as set forth or contemplated in the Prospectus; and except as
set forth or contemplated in the Prospectus neither the Company nor
any of the consolidated subsidiaries listed on Appendix A hereto (the
"SIGNIFICANT SUBSIDIARIES") has entered into any transaction or
agreement (whether or not in the ordinary course of business) material
to the Company and its consolidated subsidiaries taken as a whole;
(v) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(vi) each of the Company's Significant Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus; and, except as set forth in Exhibit 21
to the Company's Annual Report on Form 10-K for the year ended
December 31, 2000, all the outstanding shares of capital stock of each
Significant Subsidiary of the Company have
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been duly authorized and validly issued, are fully-paid and non-
assessable, and (except, in the case of foreign subsidiaries, for
directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(vii) this Underwriting Agreement has been, and each applicable
Terms Agreement will be, upon execution and delivery thereof, duly
authorized, executed and delivered by the Company;
(viii) the Company has an authorized capitalization as set forth
or incorporated by reference in the Prospectus as of the dates
provided therein and such authorized capital stock conforms as to
legal matters to the description thereof set forth or incorporated by
reference in the Prospectus, and all of the outstanding shares of
capital stock of the Company (including the Shares) have been duly
authorized and validly issued, are fully-paid and non-assessable and
are not subject to any pre-emptive or similar rights; and, 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, 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, which such rights, warrants,
options, instruments, or contract, commitment, agreement,
understanding or arrangement may be reasonably expected to be material
to the securityholders of the Company;
(ix) the Rights Agreement has been duly authorized, executed and
delivered by the Company; the Rights have been duly authorized and
validly issued by the Company; and the Series A Junior Participating
Preferred Stock has been duly authorized by the Company and validly
reserved for issuance upon the exercise of the Rights and, when issued
in accordance with the terms of the Rights Agreement, will be validly
issued, fully paid and non-assessable;
(x) neither the Company nor any of its Significant Subsidiaries
is, or with the giving of notice or lapse of time or both
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would be, in violation of or in default under, its Certificate of
Incorporation or By-Laws or any material indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party or
by which it or any of them or any of their respective properties is
bound, except for violations and defaults which individually and in
the aggregate are not material to the Company and its consolidated
subsidiaries taken as a whole; the performance by the Company of its
obligations under this Underwriting Agreement and any applicable Terms
Agreement and the consummation of the transactions contemplated herein
and therein will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Significant Subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of the
Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its Significant Subsidiaries or any of
their respective properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the performance by the
Company of its obligations under this Underwriting Agreement and any
applicable Terms Agreement, except such consents, approvals,
authorizations, orders, 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
distributions of the Shares by the Underwriters;
(xi) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of
its Significant Subsidiaries is or may be a party or to which any
property of the Company or any of its Significant Subsidiaries is or
may be the subject which could individually or in the aggregate
reasonably be expected to have a material adverse effect on the
business, operations, or financial condition of the Company and its
consolidated subsidiaries, taken
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as a whole, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others; and there are no contracts or other documents
that are required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(xii) no person has the right to require the Company to register
any securities for offering and sale under the Securities Act by
reason of the filing of the Registration Statement with the Commission
or the sale of the Shares by the Selling Stockholders pursuant hereto;
and
(xiii) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in manipulation of the price of the
Stock.
(b) Each of the Selling Stockholders severally represents and
warrants to, and agrees with, the Underwriters and the Company that:
(i) all consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Stockholder of this
Underwriting Agreement and any applicable Terms Agreement and for the
sale and delivery of the Shares to be sold by such Selling Stockholder
from time to time, have been obtained; and such Selling Stockholder
has full right, power and authority to enter into this Agreement and
to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder from time to time; this Underwriting Agreement has
been, and each applicable Terms Agreement will be upon execution and
delivery thereof, duly authorized, executed and delivered by such
Selling Stockholder;
(ii) the sale of the Shares to be sold by such Selling
Stockholder from time to time and the compliance by such Selling
Stockholder with all of the provisions of this Underwriting Agreement
and any applicable Terms Agreement from time to time and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any statute,
any indenture, mortgage, deed of trust,
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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, nor will such action result in any violation of the
Partnership Agreement of such Selling Stockholder or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the property
of such Selling Stockholder;
(iii) such Selling Stockholder has good and valid title to the
Shares to be sold from time to time by such Selling Stockholder
hereunder, free and clear of all liens, encumbrances, equities or
adverse claims other than those created pursuant to this Underwriting
Agreement or any applicable Terms Agreement; such Selling Stockholder
will have, immediately prior to any Closing Date or Additional Closing
Date, as the case may be, good and valid title to the Shares to be
sold at such Closing Date or Additional Closing Date, as the case may
be, by such Selling Stockholder, free and clear of all liens,
encumbrances, equities or adverse claims other than those created
pursuant to this Underwriting Agreement or any applicable Terms
Agreement; and, upon delivery of the certificates representing such
Shares and payment therefor pursuant hereto, good and valid title to
such Shares, free and clear of all liens, encumbrances, equities or
adverse claims, will pass to the Underwriters;
(iv) such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares; and
(v) the Selling Stockholder Information does not and will not, as
of the applicable effective date of the Registration Statement and any
amendment thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Selling Stockholder Information included in the Prospectus does not
contain and, as amended or supplemented, if applicable, furnished to
the Company in writing by such Selling Stockholder expressly for use
therein at any
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Closing Date or Additional Closing Date, as the case may be, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
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 dissolution of its partnership, or by the occurrence of any
other event. If any such partnership should be dissolved, or if any other such
event should occur, before the delivery of the Shares by it 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
Underwriting Agreement and the applicable Terms Agreement.
5. (a) The Company covenants and agrees with each of the several
Underwriters as follows:
(i) to file any Prospectus Supplement prepared in connection with
a Terms Agreement with the Commission within the time periods
specified by Rule 424(b) 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 to furnish copies of the Prospectus to the Underwriters in
New York City, as they may reasonably request;
(ii) to deliver, at the expense of the Selling Stockholders, to
you five copies of the Registration Statement (as originally filed)
and each amendment thereto, in each case including one signed copy and
all exhibits and documents incorporated by reference therein and,
during the period of time after the first date of any public offering
of 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 by the Underwriters or any dealer up to and
including the date 90 days after the first date of such public
offering, to the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request;
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(iii) during the period mentioned in Section 5(a)(ii) above,
before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to you for review
with such advance notice as is reasonably practicable prior to the
filing thereof (i) any proposed amendment or supplement to the
Registration Statement or Prospectus to be filed pursuant to the
Exchange Act and incorporated by reference therein and (ii) any
proposed amendment or supplement to the text of the Registration
Statement or Prospectus relating to the sections titled "Plan of
Distribution" or "Underwriting" and not to file any such proposed
amendment or supplement to such text of the Registration Statement or
Prospectus to which the Underwriters reasonably object;
(iv) during the period mentioned in Section 5(a)(ii) above, to
advise you promptly, and to confirm such advice in writing (A) when
any amendment to the Registration Statement has been filed or becomes
effective, (B) when any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you with copies thereof, (C)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (D) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose, and (E) of the receipt by the Company of
any notification 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 to use its
reasonable efforts to prevent the issuance of any such stop order, or
of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending any such
qualification of the Shares, or notification of any such order thereof
and, if issued, to obtain as soon as possible the withdrawal thereof;
(v) if, during such period of time after the first date of any
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 by the Underwriters or any
dealer, any event shall occur as a result of which it is necessary
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to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Selling Stockholders, to
the Underwriters and to the dealers (whose names and addresses you
will furnish to the Company) to which Shares may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
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 when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law; provided that the preparation and furnishing of any
such amendment or supplement shall be at the expense of the
Underwriters if such amendment or supplement is required more than 90
days after the first date of any public offering of the Shares; and
(vi) to use reasonable efforts to cooperate with the Selling
Stockholders to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Shares; provided
that the Company shall not be required to file a general consent to
service of process in any jurisdiction.
(b) Each of the Selling Stockholders covenants and agrees with the
Company (with respect to clause (ii) below only) and each of the several
Underwriters as follows:
(i) for a period of 90 days after the date of any Terms Agreement
not to (A) sell, pledge, assign or transfer or dispose of any equity
security of the Company or any option, right, warrant or contract to
purchase any equity security of the Company or any securities
convertible into or exercisable or exchangeable for any equity
security of the Company or (B) 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 (A) or (B) above is to be settled by delivery of Stock or such
other securities, in cash or otherwise or (C) make any written demand
for the registration of any shares of Stock or any security
convertible into or exercisable or
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exchangeable for Stock without the prior written consent of the
Underwriters or publicly announce an intention to do so, in each case
other than (x) the Shares to be sold by such Selling Stockholder under
the applicable Terms Agreement, (y) distribution of Stock by the
Selling Stockholders to their respective partners and (z) donations of
Stock to charitable organizations provided that, in the case of
clauses (y) and (z) the recipient of such Stock agrees to be bound by
the foregoing lock-up (including the exceptions set forth therein);
and
(ii) to pay or cause to be paid all fees, costs and expenses (A)
incident to the performance of its obligations and the Company's
obligations hereunder (other than the Company's obligations under
Section 7), (B) incident to the preparation, registration, execution
and delivery of the Shares and the transfer of shares of Common Stock
to the Underwriters (including transfer taxes), (C) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto but excluding any previously paid filing fees), (D) incurred
in connection with complying with securities or Blue Sky laws,
including the registration or qualification of the Shares under the
laws of such jurisdictions as you may reasonably designate (including
reasonable fees of counsel for the Underwriters and its
disbursements), (E) incurred by counsel for the Company in connection
with the offering of Shares, (F) incurred by the Company's independent
public accountants, including the expenses of any special audits and
"cold comfort" letters, (G) imposed by any stock exchange related to
the filing or registration of the Shares (but excluding previously
paid fees), (H) in connection with the printing (including word
processing and duplication costs) and delivery of this Underwriting
Agreement, any Terms Agreement, the Preliminary and Supplemental Blue
Sky Memoranda and the furnishing to the Underwriters and dealers of
copies of the Registration Statement and the Prospectus, including
printing, order processing and duplication, mailing and shipping, as
herein provided and any other messenger or delivery expenses related
thereto, (I) incurred by the Company in connection with a "road show"
presentation to potential investors, (J) incurred in preparing stock
certificates and (K) of any transfer agent and any registrar; provided
that the Selling Stockholders shall not be responsible for any costs
and expenses of the Underwriters except as explicitly set forth
above.
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6. The obligation of the Underwriters to purchase the Shares
pursuant to any Terms Agreement, are subject to the performance by the Company
and each of the Selling Stockholders of their respective obligations hereunder
and to the following additional conditions:
(a) if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become effective
not later than 5:00 P.M., New York City time, on the date of such
applicable Terms Agreement; and no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5(a)(i) hereof; and all
requests for additional information shall have been complied with to your
reasonable satisfaction;
(b) the respective representations and warranties of the Company and
the Selling Stockholders contained herein are true and correct on and as of
any Closing Date or any Additional Closing Date, as the case may be, as if
made on and as of any Closing Date or any Additional Closing Date, as the
case may be, and each of the Company and the Selling Stockholders shall
have complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to any Closing Date or any
Additional Closing Date, as the case may be;
(c) subsequent to the execution and delivery of this Agreement and
prior to any Closing Date or any Additional Closing Date, as the case may
be, there shall not have occurred any downgrading, nor shall any notice
have been given of (i) any downgrading, (ii) any intended or potential
downgrading or (iii) any review or possible change that is with negative
implications, in the rating accorded any securities of or guaranteed by the
Company by any "nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material change in the capital
stock of the Company or long-term debt of the Company and its consolidated
subsidiaries taken as a whole or any material adverse change, or any known
development involving the reasonable likelihood of a
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prospective material adverse change, in the business, operations or
financial condition of the Company and its consolidated subsidiaries, taken
as a whole, otherwise, in each case, than as set forth or contemplated in
the Prospectus, the effect of which in your reasonable judgment makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on any Closing Date or any Additional Closing Date,
as the case may be, on the terms and in the manner contemplated in the
Prospectus;
(e) the Underwriters shall have received on and as of any Closing Date
or any Additional Closing Date, as the case may be, (i) a certificate of an
executive officer of the Company reasonably satisfactory to the
Underwriters to the effect set forth in Sections 6(a), 6(b) and 6(c) (with
respect to the respective representations, warranties, agreements and
conditions of the Company) and to the further effect that there has not
occurred any material adverse change, or any known development involving
the reasonable likelihood of a prospective material adverse change, in the
business, operations or financial condition, of the Company and its
consolidated subsidiaries, taken as a whole, from that set forth or
contemplated in the Prospectus and (ii) a certificate of the Selling
Stockholders, satisfactory to you to the effect set forth in Section 6(b)
(with respect to the respective representations, warranties, agreements and
conditions of the Selling Stockholders);
(f) Xxxxxxx X. Xxxxxx, III, Esq., Secretary of the Company, shall have
furnished to you his written opinion, dated each Closing Date or each
Additional Closing Date, as the case may be, in form and substance
satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus as then amended or supplemented;
(ii) the Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole;
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(iii) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the best
of such counsel's knowledge, threatened to which the Company is or to
such counsel's knowledge is reasonably likely to be a party to, or to
which any property of the Company is or to such counsel's knowledge is
reasonably likely to be the subject of, that could individually or in
the aggregate reasonably be expected to have a material adverse effect
on the business, operations or financial condition of the Company and
its consolidated subsidiaries taken as a whole; to the best of such
counsel's knowledge, no such proceedings are contemplated by
governmental authorities or threatened by others; and such counsel
does not know of any contracts or other documents of a character
required to be described in the Registration Statement or Prospectus
or to be filed as exhibits to the Registration Statement that are not
described or filed as required;
(iv) the Underwriting Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered by the
Company;
(v) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus;
(vi) the outstanding shares of capital stock of the Company
(including the Shares) have been duly authorized and are validly
issued, fully paid and non-assessable;
(vii) the statements in the Prospectus under "Description of
Capital Stock" in the Prospectus incorporated by reference from the
Registration Statement filed on Form 8-A dated January 11, 2001,
and/or any subsequent filings under the Exchange Act and the
statements in the Registration Statement in Item 15 as the same may be
supplemented or replaced by subsequent filings under the Exchange Act,
insofar as such statements constitute a summary of the terms of the
Stock, legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such terms,
legal matters, documents or proceedings;
(viii) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (except for the financial statements and related
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schedules therein, as to which such counsel need express no opinion)
complied as to form when filed with the Commission in all material
respects with the requirements of the Securities Act and believes that
(except for the financial statements and related schedules therein, as
to which such counsel need express no belief) each part of the
Registration Statement (including the documents incorporated by
reference therein) and the prospectus included therein when such part
of the Registration Statement became effective did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus, as amended or
supplemented, if applicable, does not contain 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 under
which they were made, not misleading;
(ix) the Company is not, nor with the giving of notice or lapse
of time or both would it be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument known to such counsel to which the Company is a party or by
which it or any of its properties is bound, except for violations and
defaults which individually and in the aggregate are not material to
the Company and its consolidated subsidiaries taken as a whole; and
the performance by the Company of its obligations under the
Underwriting Agreement and the applicable Terms Agreement and the
performance of its obligations herein and therein will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument known
to such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, nor will any such action result in any violation
of the provisions of the Certificate of Incorporation or the By-Laws
of the Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties;
(x) no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or
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body is required for the performance by the Company of its obligations
under the Underwriting Agreement or the applicable Terms Agreement,
except such consents, approvals, authorizations, orders, 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;
(xi) the documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior
to any Closing Date or any Additional Closing Date, as the case may be
(except for the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they were filed
with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and
(xii) the Rights Agreement has been duly authorized, executed and
delivered by the Company; the Rights have been duly authorized and
issued by the Company, and the Series A Junior Participating Preferred
Stock has been duly authorized by the Company and validly reserved for
issuance upon the exercise of the Rights and, when issued upon such
exercise in accordance with the terms of the Rights Agreement, will be
validly issued, fully paid and non-assessable.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States
and the States of Delaware and Massachusetts, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon
an opinion or opinions (reasonably satisfactory to Underwriters' counsel)
of other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers
of the Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel upon
which they relied is in form satisfactory to such counsel and, in such
counsel's opinion, the Underwriters are justified in relying thereon. With
respect to the matters to be covered in Section 6(f)(viii) and Section
6(f)(xi) above counsel may state his opinion
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and belief is based upon his participation in the preparation of the
Registration Statement and the Prospectus and any amendment or supplement
thereto and review and discussion of the contents thereof but is without
independent check or verification except as specified.
The opinion described above shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
(g) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Selling Stockholders,
shall have furnished to the Representatives their written opinion, dated
each Closing Date, and each Additional Closing Date, as the case may be, in
form and substance satisfactory to the Representatives, to the effect that:
(i) the Underwriting Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by or on behalf of
each of the Selling Stockholders; and
(ii) each Selling Stockholder is the sole record owner of all of
the Underwritten Shares or Option Shares then to be sold by such
Selling Stockholder, each Selling Stockholder has full partnership
power, right and authority to sell such Shares and upon payment for
and delivery of the Shares in accordance with the Underwriting
Agreement and the applicable Terms Agreement , the Underwriters will
acquire all of the rights of each Selling Stockholder in the
applicable Shares and will also acquire their interest in such Shares
free of any adverse claim.
(h) on the date hereof and also on each Closing Date or each
Additional Closing Date, as the case may be, KPMG LLP shall have furnished
to you letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, 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 in the Registration Statement and the Prospectus;
(i) the Representatives shall have received on and as of each Closing
Date or each Additional Closing Date, as the case may be, an opinion of
Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, with respect to the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel
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shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters; and
(j) on or prior to any Closing Date or Additional Closing Date, as the
case may be, the Company and the Selling Stockholders shall have furnished
to the Underwriters such further certificates and documents as the
Underwriters shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Selling
Stockholder and each Underwriter and each person, if any, who controls any
Selling Stockholder or any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
the legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements 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 not misleading,
except insofar as such losses, claims, damages or liabilities are caused by 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 or through the
Representatives expressly for use therein and except in the case of any Selling
Stockholder or any person controlling such Selling Stockholder for the Selling
Stockholder Information; provided that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Shares if
such untrue statement or omission or alleged untrue statement or omission made
in such preliminary prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Shares to such person.
Each of the Selling Stockholders severally in proportion to the number of
Shares to be sold by such Selling Stockholder hereunder agrees to indemnify and
hold harmless the Company and each Underwriter and each person, if any, who
controls the Company or any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to each Underwriter and Selling
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Stockholder, but only with reference to the Selling Stockholder Information in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus; provided that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased Shares if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus is eliminated or
remedied in the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) and, if required by law, a copy
of the Prospectus (as so amended or supplemented) shall not have been furnished
to such person at or prior to the written confirmation of the sale of such
Shares to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement, each Selling Stockholder and each person who controls the Company or
any Selling Stockholder within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company and the Selling Stockholders to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter or through the Representatives expressly for use
in the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
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 indemnity may be sought pursuant to the preceding paragraphs
of this Section 7, such person (the "INDEMNIFIED PERSON") shall promptly notify
the person or persons against whom such indemnity may be sought (each an
"INDEMNIFYING PERSON") in writing, provided that the failure of an Indemnified
Person to give notice as provided herein shall not release the Indemnifying
Person of its obligations under this Section 7 and such Indemnifying Persons,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Persons may designate in such proceeding and shall
pay the fees and expenses of such counsel related to such proceeding. 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 and not the Indemnifying Persons unless (i) the
Indemnifying Persons and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Persons have failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both an Indemnifying
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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 that no Indemnifying Person shall, 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 reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of Underwriters shall be designated in
writing by the Underwriters and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such 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 Selling Stockholders. No Indemnifying Person shall 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,
each Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first four paragraphs of this
Section 7 is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein in connection
with any offering of Shares, 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 hand from the
offering of such Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Stockholders on the one hand and the Underwriters
on the other hand shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Shares (before deducting expenses)
received by the Selling Stockholders and the total underwriting discounts and
the commissions received by the Underwriters in respect thereof bear to the
aggregate public offering price of such Shares. The relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information
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supplied by the Company and the Selling Stockholders or by the Underwriter and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Selling Stockholders or the
Underwriters were treated as one entity for such purposes) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Shares referred to
in the previous paragraph underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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 7 are several in proportion to the respective number of
Shares underwritten by them in any offering of Shares, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company and the Selling Stockholders
set forth in this Underwriting Agreement and any Terms Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Underwriting Agreement or any Terms Agreement, (ii) any investigation made by or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its officers or directors or any other person
controlling the Company or the Selling Stockholders and (iii) acceptance of and
payment for any of the Shares.
8. Notwithstanding anything herein contained, any Terms Agreement (or the
obligations of the Underwriters with respect to the Option Shares) may be
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terminated in your absolute discretion, by notice given to the Selling
Stockholders and the Company, if after the execution and delivery of any Terms
Agreement and prior to any Closing Date set forth in such Terms Agreement (or,
in the case of the Option Shares, prior to the Additional Closing Date set forth
in such Terms Agreement) (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers, Inc., (ii) trading of any securities of 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 in New York shall
have been declared by either Federal or New York State or authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
calamity or crisis in financial markets or elsewhere that, in your reasonable
judgment, is material and adverse and which, in your reasonable judgment, makes
it impracticable to market the Shares being delivered at any Closing Date or any
Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
9. This Underwriting Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
If on any Closing Date or any Additional Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in the Terms Agreement bears to the
aggregate number of Underwritten Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to Section
1 be increased pursuant to this Section 9 by an amount in excess of one-tenth of
such number of Shares without the written consent of such Underwriter. If on any
Closing Date or any Additional Closing Date, as the case may be, any Underwriter
or Underwriters shall fail or refuse to purchase Shares which it or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to you and the Selling Stockholders for the purchase of such Shares
are not made within 36 hours after such default, the applicable Terms Agreement
(or the obligations of the several Underwriters to purchase the Option Shares,
as the
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case may be) shall terminate without liability on the part of any non-defaulting
Underwriter or the Selling Stockholder (other than as described in Section 10).
In any such case either you or the Selling Stockholders shall have the right to
postpone the Closing Date (or, in the case of the Option Shares, the Additional
Closing Date), but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Underwriting Agreement and
any applicable Terms Agreement.
10. If any Terms Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company or the
Selling Stockholders to comply with the terms or to fulfill any of the
conditions of this Underwriting Agreement or such Terms Agreement, or if such
Terms Agreement is terminated pursuant to Section 9 hereof, or if for any reason
any of the Company or the Selling Stockholders shall be unable to perform its
obligations under this Underwriting Agreement or such Terms Agreement or any
condition of the Underwriters' obligations cannot be fulfilled, the Selling
Stockholders agree to reimburse the Underwriters or such Underwriters as have so
terminated such Terms Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by the Underwriters in connection with this Underwriting
Agreement and such Terms Agreement or the offering contemplated hereunder;
provided that the Selling Stockholders shall not be required to so reimburse any
defaulting Underwriter.
11. This Underwriting Agreement and each Terms Agreement shall inure to
the benefit of and be binding upon the Company, the Selling Stockholders and the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Underwriting
Agreement or any applicable Terms Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Underwriting Agreement or any applicable
Terms Agreement or any provision herein or therein contained. No purchaser of
Shares from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
12. Any action by the Underwriters hereunder may be taken by the managers
designated in any Terms Agreement or by the Underwriters, and any such action
taken by the manager designated in such Terms Agreement or by such Underwriters
shall be binding upon the Underwriters. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
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duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given to Xxxxxxx, Xxxxx & Co., Xxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (telefax:212-902-9020); Attention: Xxx Xxxxxx
and to Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
North Tower, World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (telefax:
212-449-1885); Attention: Financial Sponsors Group. Notices to the Company shall
be given to it at Xxx Xxxxxxxx Xxxxxxx, Prudential Xxxxx Xxxxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, (telefax: 617-421-7866); Attention: General Counsel's
Office with a copy to the Secretary's Office. Notices to the Selling
Stockholders shall be given to them at DI Associates, L.P., and KKR Partners II,
L.P., c/o Kohlberg Kravis Xxxxxxx & Co., 0 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000, (telefax: 212-750-0003); Attention: Xxxxx Xxxxxx.
13. This Underwriting Agreement may be signed in counterparts, each of
which shall be an original and all of which together shall constitute one and
the same instrument.
14. THIS UNDERWRITING AGREEMENT AND EACH TERMS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
XXX XXXXXXXX XXXXXXX
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
Selling Stockholders
DI ASSOCIATES, L.P.
By: KKR Associates, as General Partner
By: /s/ Xxxx X. Raetner
---------------------------------------
Name: Xxxx X. Raetner
Title: Partner
KKR PARTNERS II, L.P.
By: KKR Associates, as General Partner
By: /s/ Xxxx X. Raetner
---------------------------------------
Name: Xxxx X. Raetner
Title: Partner
29
Accepted:
/s/ Xxxxxxx, Sachs & Co.
----------------------------
Xxxxxxx, Xxxxx & Co.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxx Xxxxxxxx
--------------------------------------
Name: Xxx Xxxxxxxx, Director
Title: Authorized Signatory
30
SCHEDULE I
SELLING STOCKHOLDERS
--------------------
DI Associates, L.P.
KKR Partners II, L.P.
31
Appendix A
List Of Significant Subsidiaries
--------------------------------
Xxxxx GmbH
Gilfin B.V.
Xxxxxxxx Beteiligungs GmbH
1
