Exhibit 1.1
7,000,000 SHARES
▇▇▇▇▇ ▇▇▇▇▇ INC.
COMMON STOCK, $0.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. INTRODUCTORY. ▇▇▇▇▇ ▇▇▇▇▇ Inc., a Delaware corporation ("COMPANY")
proposes to issue and sell 4,000,000 shares of its Common Stock, $0.01 par value
per share ("SECURITIES") and the stockholders listed in Schedule B hereto
("SELLING STOCKHOLDERS") propose severally to sell an aggregate of 3,000,000
outstanding shares of the Securities (such 7,000,000 shares of Securities being
hereinafter referred to as the "FIRM SECURITIES"). The Selling Stockholders also
propose to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 1,050,000 additional outstanding shares of the
Securities, as set forth below (such 1,050,000 additional shares being
hereinafter referred to as the "OPTIONAL Securities"). The Firm Securities and
the Optional Securities are herein collectively called the "OFFERED SECURITIES".
The Company and the Selling Stockholders hereby agree with the several
Underwriters named in Schedule A hereto ("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-60868) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (A) has been
declared effective under the Securities Act of 1933 ("ACT") and is not
proposed to be amended or (B) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(B)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule
462(b) and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it, and
if any post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(C)") under the
Act or, in the case of the additional registration statement, Rule 462(b).
For purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Company has advised the Representatives that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company has
advised the Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and time
as of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "EFFECTIVE TIME"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
material incorporated by reference therein, including all information
contained in the additional registration statement (if any) and deemed to
be a part of the initial registration statement as of the Effective Time
of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(B)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as amended
at its Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as
of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration are hereinafter referred to
collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION Statement". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(B)") under the Act or (if no such
filing is required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include 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, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(C) on the date of this Agreement, the Initial Registration Statement and,
if the Effective Time of the Additional Registration Statement is prior to
the execution and
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delivery of this Agreement, the Additional Registration Statement
each conforms, and at the time of filing of the Prospectus pursuant to
Rule 424(b) or (if no such filing is required) at the Effective Date of
the Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement:
on the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding
sentences do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to
the Company by any Underwriter through the Representatives expressly for
use therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate or other) to own its properties and conduct
its business as described in the Prospectus and to own, lease and operate
its properties; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company has been duly incorporated or
organized and is an existing corporation or partnership, as the case may
be, in good standing under the laws of the jurisdiction of its
incorporation or organization, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus and to own, lease and operate its properties; and each
subsidiary of the Company is duly qualified to do business as a foreign
corporation or partnership in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so qualified
would not have a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Company that is a
corporation has been duly authorized and validly issued and is fully paid
and nonassessable; and the capital stock of each subsidiary that is a
corporation owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects. The Company, directly and
through its direct wholly owned subsidiary DRI I Inc. ("DRI I"), owns all
of the partnership interests in ▇▇▇▇▇ ▇▇▇▇▇, a New York general
partnership ("▇▇▇▇▇ ▇▇▇▇▇"), free from liens, encumbrances and defects,
except as set forth in the Prospectus. The Company has no subsidiaries
except as listed on Exhibit 21 to the Company's annual report on Form 10-K
for the year ended December 30, 2000.
(v) The Offered Securities to be sold by the Company have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefore as provided by this Agreement, will be validly issued,
fully paid and non-assessable; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities.
(vi) The employee stock options to be exercised by certain Selling
Stockholders in connection with the transactions contemplated by the
Custody Agreements (as defined below), the Powers of Attorney (as defined
below) and this Agreement and to be deposited with the Custodian (as
defined below) in accordance with the Custody Agreements (collectively,
the "STOCK OPTIONS") have been duly granted to, are fully vested in and
may be exercised by, such relevant Selling Stockholder in accordance with
the ▇▇▇▇▇ ▇▇▇▇▇ Inc. Holding Corp. 1992 Stock Incentive Plan (the "1992
PLAN") or the ▇▇▇▇▇ ▇▇▇▇▇ Inc. 1997 Equity Participation Plan (the "1997
PLAN" and, together with the 1997 Plan, the "PLANS") as applicable; and,
when Stock Options are exercised in accordance with this Agreement and the
Powers of Attorney, the Company will issue the appropriate number of
certificates in negotiable form of Securities on each Closing Date (as
defined below).
(vii) The Offered Securities to be sold by the Selling Stockholders
that are outstanding as of the date hereof and all other outstanding
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; the Offered
Securities to be sold by the Selling Stockholders that are not outstanding
as of the date hereof have been duly reserved and authorized and,
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when issued and delivered upon exercise of the Stock Options in connection
with the 1992 Plan or the 1997 Plan, as applicable, will be validly
issued, fully paid and non-assessable.
(viii) The authorized shares of capital stock of the Company conform
as to legal matters to the description thereof contained in the Prospectus
in all material respects.
(ix) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
(x) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(xi) The Securities are listed on The New York Stock Exchange.
(xii) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and
from the National Association of Securities Dealers, Inc. (the "NASD") and
such as may be required under state securities laws.
(xiii) The execution, delivery and performance of this Agreement,
and the consummation of the transactions herein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (a) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties, except as could not reasonably be expected to
have a Material Adverse Effect or materially adversely affect the ability
of the Company and its subsidiaries to consummate the transactions
contemplated hereby, (b) any agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, except as could not reasonably be expected
to have a Material Adverse Effect or materially adversely affect the
ability of the Company and its subsidiaries to consummate the transactions
contemplated hereby, or (c) the charter, by-laws or similar organizational
document of the Company or any such subsidiary.
(xiv) This Agreement has been duly authorized, executed and
delivered by the Company. DRI I, ▇▇▇▇▇ ▇▇▇▇▇ International, Inc. ("DR
INTERNATIONAL"), ▇▇▇▇▇ ▇▇▇▇▇ Realty, Inc. ("DR REALTY") and ▇▇▇▇▇ ▇▇▇▇▇.
(xv) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects except such that do not materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the Company
and its subsidiaries hold any leased real or personal property under valid
and enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(xvi) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to own, lease, license and operate its
respective properties and to conduct the business now operated by them and
have not received any notice of
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proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(xvii) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(xviii) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, except where the failure to own or possess or otherwise
be able to acquire such intellectual property rights could not reasonably
be expected to, singly or in the aggregate, have a Material Adverse
Effect; and neither the Company nor any subsidiary has received any notice
of infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(xix) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(xx) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are, to the Company's knowledge, threatened; there are no
statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement of the Prospectus or to be
filed as exhibits to the Registration Statement that are not so described
or filed as required.
(xxi) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Prospectus, such financial statements have been
prepared in conformity with the generally accepted accounting principles
in the United States applied on a consistent basis; the schedules included
in each Registration Statement present fairly the information required to
be stated therein.
(xxii) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(xxiii) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
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(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has valid and unencumbered title with
respect to the Offered Securities to be sold by such Selling Stockholder
that are outstanding as of the date hereof; and on each Closing Date
hereinafter mentioned, such Selling Stockholder will have valid and
unencumbered title to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date and full right, power and
authority to sell, assign, transfer and deliver such Offered Securities to
be delivered by such Selling Stockholder on such Closing Date; and upon
the delivery of and payment for the Offered Securities on each Closing
Date hereunder, the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date.
(ii) If applicable, the relevant Stock Options to be exercised by
such Selling Stockholders in connection with the transactions contemplated
by the relevant Custody Agreement, the relevant Power of Attorney and this
Agreement and deposited with the Custodian in accordance with the Custody
Agreements have been duly granted to, are fully vested in and may be
exercised by, such relevant Selling Stockholder in accordance with the
1992 Plan or the 1997, as applicable; and such Selling Stockholder has
deposited the requisite number of Stock Options, when exercised, and/or
certificates representing shares of Securities that will allow such
Selling Stockholder to fulfill his or her obligations pursuant to the
terms of this Agreement.
(iii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the Rules and Regulations and did not include 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, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will
conform, in all respects to the requirements of the Act and the Rules and
Regulations did not include, or will not include, any untrue statement of
a material fact and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at the
time of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each Registration Statement
and the Prospectus will conform, in all respects to the requirements of
the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective Date of the
Initial Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act and
the Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. The two preceding sentences apply only to the
extent that any statements or omissions from a Registration Statement or
the Prospectus are based on written information furnished to the Company
by such Selling Stockholders specifically for use therein, it being
understood and agreed that the only such information furnished by any
Selling Stockholder consists of the information related to such Selling
Stockholder contained under the caption "Principal and Selling
Stockholders" in the Prospectus.
(iv) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling
Stockholder or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(v) Such Selling Stockholder has, and on each Closing Date will
have, full legal right, power and authority, and all authorization and
approval required by law, to enter into (A) this Agreement, (B) the
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Custody Agreement signed by such Selling Stockholder and Fleet National
Bank c/o Equiserve, as Custodian (each a "CUSTODY AGREEMENT") relating to
the deposit of the Offered Securities (including Offered Securities issued
by the Company as a result of the exercised of the Stock Options), and (C)
the Power of Attorney of such Selling Stockholder appointing certain
individuals as such Selling Stockholder's attorneys-in-fact (each an
"ATTORNEY") to the extent set forth therein relating to the transactions
contemplated hereby and by the Registration Statement and the relevant
Custody Agreement (each, a "POWER OF ATTORNEY") to exercise the relevant
Stock Options in accordance with the appropriate Plan, if applicable, and
to sell, assign, transfer and deliver the Offered Securities to be sold by
such Selling Stockholder in the manner provided herein and therein.
(vi) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder.
(vii) The relevant Custody Agreement of such Selling Stockholder has
been duly authorized, executed and delivered by such Selling Stockholder
and is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(viii)The relevant Power of Attorney of such Selling Stockholder has
been duly authorized, executed and delivered by such Selling Stockholder
and is a valid and binding instrument of such Selling Stockholder,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles, and, pursuant to such Power of Attorney,
such Selling Stockholder has, among other things, authorized the
Attorneys, or any one of them, to execute and deliver on such Selling
Stockholder's behalf this Agreement and any other document that they, or
any one of them, may deem necessary or desirable in connection with the
transactions contemplated hereby and thereby, to exercise on such Selling
Stockholder's behalf the relevant Stock Options, as applicable, and to
deliver the Offered Securities to be sold by such Selling Stockholder
pursuant to this Agreement.
(ix) The execution, delivery and performance of this Agreement, the
relevant Custody Agreement and the relevant Power of Attorney of such
Selling Stockholder by or on behalf of such Selling Stockholder and the
consummation of the transactions herein and therein contemplated will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (a) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over such Selling Stockholder or any of its
properties, except as could not reasonably be expected to have a Material
Adverse Effect or materially adversely affect the ability of such Selling
Stockholder to consummate the transactions contemplated hereby or thereby,
(b) any 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
properties of such Selling Stockholder, except as could not reasonably be
expected to have a Material Adverse Effect or materially adversely affect
the ability of such Selling Stockholder to consummate the transactions
contemplated hereby and thereby, or (c) the charter, by-laws or similar
organizational document of such Selling Stockholder, if such Selling
Stockholder is not a natural person.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and each Selling Stockholder
agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
each Selling Stockholder, at a purchase price of $ per share, that number
of Firm Securities (rounded up or down, as determined by Credit Suisse First
Boston Corporation ("CSFBC") in its discretion, in order to avoid fractions)
obtained by multiplying 4,000,000 Firm Securities in the case of the Company, or
the number of Firm Securities set forth opposite the name of such Selling
Stockholder in Schedule B hereto in the case of a Selling Stockholder, in each
case by a fraction the numerator of which is the number of Firm Securities set
forth opposite the name of such Underwriter in Schedule A hereto and the
denominator of which is the total number of Firm Securities.
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Certificates in negotiable form and/or the relevant Stock Options for the
Offered Securities to be sold by the Selling Stockholders hereunder have been
placed in custody for delivery under this Agreement with the Custodian under the
Custody Agreements. Each Selling Stockholder agrees that the shares represented
by the certificates and, if applicable, the Stock Options of such Selling
Stockholders, held in custody for the Selling Stockholders under such Custody
Agreements are subject to the interests of the Underwriters hereunder, that the
arrangements made by the Selling Stockholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death of
any individual Selling Stockholder or the occurrence of any other event, or in
the case of a trust, by the death of any trustee or trustees or the termination
of such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities hereunder
or, if applicable, the exercise of the Stock Options, certificates for such
Offered Securities shall be delivered by the Custodian in accordance with the
terms and conditions of this Agreement and, if applicable, the Stock Options
shall be exercised by the Attorney, as if such death or other event or
termination had not occurred, regardless of whether or not the Custodian shall
have received notice of such death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
, at the office of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ at 9:00 A.M., New York time, on , 2001, or at such other time not
later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "FIRST CLOSING DATE".
For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the
First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities
for all the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as CSFBC requests
and will be made available for checking and packaging at the above office of
Shearman & Sterling at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per share to be paid for the Firm
Securities. The Selling Stockholders agree, severally and not jointly, to sell
to the Underwriters the respective numbers of Optional Securities obtained by
multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholders in Schedule B hereto under the caption
"Maximum Number of Optional Securities to be Sold" and the denominator of which
is the total number of Optional Securities (subject to adjustment by CSFBC to
eliminate fractions). Such Optional Securities shall be purchased from each
Selling Stockholder for the account of each Underwriter in the same proportion
as the number of Firm Securities set forth opposite such Underwriter's name
bears to the total number of Firm Securities (subject to adjustment by CSFBC to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company and
the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of , at the above office of Shearman & Sterling. The certificates
for the Optional Securities being purchased on each Optional Closing Date will
be in definitive form, in such denominations and registered in such names as
CSFBC requests upon reasonable notice prior to such Optional Closing Date and
will be made available for checking and packaging at the above office of
Shearman & Sterling at a reasonable time in advance of such Optional Closing
Date.
8
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant
to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of
the Offered Securities under the Act but the Effective Time thereof has
not occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at
such later date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's consent; and the
Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
a Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CSFBC of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (five of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with
9
sales by any Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as CSFBC
requests. The Prospectus shall be so furnished on or prior to 3:00 P.M.,
New York time, on the business day following the later of the execution
and delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished as
soon as available. The Company and the Selling Stockholders will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of 10 years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(h) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC, except issuances of Securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date hereof, grants
of employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Securities pursuant to the exercise of such
options.
(i) The Company and each Selling Stockholder agree with the several
Underwriters that the Company and such Selling Stockholder will pay all
expenses incident to the performance of the obligations of the Company and
such Selling Stockholder, as the case may be, under this Agreement, for
any filing fees and other expenses (including fees and disbursements of
counsel) in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for the filing fee incident to the
review by the NASD of the Offered Securities, for any travel expenses of
the Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, for any transfer taxes on the sale
by the Selling Stockholders of the Offered Securities to the Underwriters
and for expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(j) The Custodian will agree to deliver to CSFBC, attention:
Transactions Advisory Group, on the Closing Date a letter stating that
they will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by
the United States Treasury Department regulations in lieu thereof) on or
before January 31 of the year following the date of this Agreement.
(k) Each Selling Stockholder agrees, for a period of 90 days after
the date of the public offering of the Offered Securities, not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any shares
of Securities, enter into a transaction which would have the same effect,
or enter into any swap, hedge
10
or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without, in
each case, the prior written consent of CSFBC. In addition, each selling
stockholder agrees that, without the prior written consent of CSFBC, it
will not, during the period commencing on the date hereof and ending 90
days after the public offering of the Offered Securities, make any demand
for or exercise any right with respect to, the registration of any
Securities of the Company or any security convertible into or exercisable
or exchangeable for Securities of the Company.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and under the Custody Agreements and
Powers of Attorney and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of PricewaterhouseCoopers
LLP confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included or incorporated by reference in the
Registration Statements comply as to form in all material respects
with the applicable accounting requirements of the Act and the
related published Rules and Regulations and the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements included in the
Registration Statements do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations and
the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder, or any material
modifications should be made to such unaudited financial
statements for them to be in conformity with generally
accepted accounting principles;
(B) the unaudited consolidated net sales, net operating
income, net income and net income per share amounts for the
three-month periods ended March 31, 2001 included in the
Prospectus do not agree with the amounts set forth in the
unaudited consolidated financial statements for those same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
audited statements of income;
11
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net current assets or
net assets, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period
of corresponding length ended the date of the latest income
statement included in the Prospectus, in consolidated net
sales or net operating income in the total or per share
amounts of consolidated income before extraordinary items or
net income;
except in all cases set forth in clauses (c) and (d) above for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have found
such dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise specified in
such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statements is subsequent to the execution and delivery of
this Agreement, "REGISTRATION STATEMENTS" shall mean the initial
registration statement as proposed to be amended by the amendment or
post-effective amendment to be filed shortly prior to its Effective Time,
(ii) if the Effective Time of the Initial Registration Statements is prior
to the execution and delivery of this Agreement but the Effective Time of
the Additional Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be
filed or as proposed to be amended by the post-effective amendment to be
filed shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall
mean the prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFBC. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFBC. If
the Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of any Selling Stockholder, the Company or the
Representatives, shall be contemplated by the Commission.
12
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for trading
on such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, to the effect
that:
(i) Each of the Company and its subsidiaries that is a
corporation has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) ▇▇▇▇▇ ▇▇▇▇▇ has been duly formed as a general partnership
under the laws of the State of New York with the partnership power
and authority to own, lease and operate its properties as described
in the Prospectus;
(iii) The Company and each of its subsidiaries is duly
qualified to do business as a foreign corporation or partnership in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect;
(iv) All outstanding shares of the capital stock of the
Company have been duly authorized and validly issued, are fully paid
and nonassessable and conform to the description thereof contained
in the Prospectus; and, to the knowledge of such counsel, the
stockholders of the Company have no preemptive rights with respect
to the Securities;
(v) All of the outstanding shares of capital stock of the
Company's subsidiaries that are corporations have been duly
authorized and validly issued and are fully paid and non-assessable,
and are owned of record by the Company, directly or indirectly
through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any
nature, except as disclosed in the Prospectus; and all of the
partnership interests in ▇▇▇▇▇ ▇▇▇▇▇ are owned of record by the
Company and DRI I, free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature, except as
disclosed in the Prospectus;
(vi) The Offered Securities delivered on such Closing Date
have been duly authorized and, when issued and delivered to the
Underwriters against payment therefore as provided by the Agreement,
will be validly issued, fully paid and non-assessable;
13
(vii) To the best of such counsel's knowledge after due
inquiry, except as disclosed in the Registration Statement, there
are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such Securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(viii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the net proceeds thereof as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company Act of
1940;
(ix) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Company or any Selling
Stockholder for the consummation of the transactions contemplated by
this Agreement or the Custody Agreement in connection with the sale
of the Offered Securities, except such as have been obtained and
made under the Act or with the NASD and such as may be required
under state securities laws;
(x) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein or therein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (a) any
applicable federal or New York statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or
any of their properties, (b) any agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or (c)
the charter, by-laws or similar organizational document, of the
Company or any such subsidiary;
(xi) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of a
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that any part of
a Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; the descriptions in the Registration
Statements and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and
fairly present the information required to be shown; and such
counsel do not know of any legal or governmental proceedings
required to be described in a Registration Statement or the
Prospectus which are not described as required or of any contracts
or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as exhibits
to a Registration Statement which are not described and filed as
required; it being understood that such counsel need express no
opinion as
14
to the financial statements or other financial data contained in the
Registration Statements or the Prospectus;
(xii) This Agreement has been duly authorized, executed and
delivered by the Company, DRI I, DR International, DR Realty and
▇▇▇▇▇ ▇▇▇▇▇;
(xiii) The statements (a) under the caption "Risk Factors--Our
operations are subject to federal and state laws and regulations,
which could adversely impact our business if changed", (b) in the
second sentence under the caption "Risk Factors--Shares
eligible for public sale after this offering could adversely affect
our stock price", (c) in the second sentence in the second
paragraph under the caption "Common Stock Price Range and
Dividends", (d) in the third, fourth, fifth and sixth sentences
under the caption "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Tax Benefits From Net Operating
Losses", (e) under the caption "Description of Capital Stock",
(f) under the caption "Certain U.S. Federal Tax Considerations
for Non-U.S. Holders" and (g) in the second, third, seventh,
eighth and ninth paragraphs under the caption "Underwriting" in
the Prospectus and Items 14 and 15 of Part II of the Registration
Statement, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, are
accurate in all material respects; and
(xiv) Neither the Company nor any of its subsidiaries is in
violation of its respective charter, by-laws or partnership
agreement and, to the best of such counsel's knowledge after due
inquiry, neither the Company nor any of its subsidiaries is in
default in the performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the
Company and its subsidiaries, taken as a whole, to which the Company
or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries or any of their respective property is bound.
(e) The Representatives shall have received the opinion contemplated in
the relevant Power of Attorney executed and delivered by each Selling
Stockholder and an opinion, dated such Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Selling Stockholders, to the effect that:
(i) Each Selling Stockholder had valid and unencumbered title to the
Offered Securities delivered by such Selling Stockholder on such Closing
Date and had full right, power and authority to sell, assign, transfer and
deliver the Offered Securities delivered by such Selling Stockholder on
such Closing Date hereunder; and the several Underwriters have acquired
valid and unencumbered title to the Offered Securities purchased by them
from the Selling Stockholders on such Closing Date hereunder;
(ii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by any Selling Stockholder for the consummation of the
transactions contemplated by this Agreement, the relevant Custody
Agreement or the relevant Power of Attorney of such Selling Stockholder in
connection with the sale of the Offered Securities sold by the Selling
Stockholders, except such as have been obtained and made under the Act or
with the NASD and such as may be required from the NASD under state
securities laws;
(iii) The execution, delivery and performance of this Agreement, the
relevant Custody Agreement or the relevant Power of Attorney of such
Selling Stockholder and the consummation of the transactions herein and
therein contemplated will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, (a) any
applicable federal or New York statute, any rule, regulation or order of
any governmental agency or body or any court having jurisdiction over any
Selling Stockholder or any of their properties, (b) any agreement or
instrument that is material to such Selling Stockholder to which any
Selling Stockholder is a party or by which any Selling Stockholder is
bound or to which any of the properties of any Selling Stockholder is
subject, or (c) the charter, by-laws or similar organizational document of
any Selling Stockholder which is not a natural person;
15
(iv) The relevant Power of Attorney and the relevant Custody
Agreement with respect to each Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and
constitute valid and legally binding obligations of each such Selling
Stockholder enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
(v) This Agreement has been duly authorized, executed and delivered
by or on behalf of each Selling Stockholder. Pursuant to the relevant
Power of Attorney, such Selling Stockholder has authorized the Attorneys,
or any one of them, to execute and deliver on such Selling Stockholder's
behalf this Agreement and any other document they, or any one of them, may
deem necessary or desirable in connection with the transactions
contemplated hereby and thereby and to deliver the Offered Securities to
be sold by such Selling Stockholder pursuant to this Agreement.
(f) The Representatives shall have received from Shearman & Sterling,
counsel for the Underwriters, such opinion or opinions, dated such Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities delivered on such Closing Date, the Registration Statements, the
Prospectus and other related matters as the Representatives may require, and the
Selling Stockholders and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such
matters.
(g) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true and
correct; 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; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(h) The Representatives shall have received a letter, dated such Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing Date
for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the Representatives shall
have received lockup letters in the form attached hereto as Exhibit A from each
of the executive officers and directors of the Company who are not Selling
Stockholders.
(j) On or prior to the date of this Agreement, each Selling Stockholder
that is selling Offered Securities that are not outstanding as of the date
hereof shall have deposited with the Custodian under the relevant Custody
Agreement such number of Stock Options that, upon exercise in full, will result
in a number of Offered Securities that, when added to the number of Offered
Securities of such Selling Stockholder outstanding on the date hereof, will
equal the maximum aggregate number of Offered Securities which may be sold by
such Selling Stockholder as indicated on Schedule B hereto.
16
(k) On or prior to any Closing Date, each relevant Attorney shall have
exercised, on the corresponding Selling Shareholder's behalf, the requisite
number of Stock Options required to allow such Selling Shareholder to meet its
obligations hereunder; upon the exercise of any such Stock Options, the Company
shall have, on or prior to the Closing Date in question, issued and delivered
the Offered Securities underlying such Stock Options in accordance with the 1992
Plan or the 1997 Plan, as applicable.
(l) An Attorney has exercised Stock Options on behalf of a Selling
Stockholder, as provided in this Agreement, the relevant Custody Agreement and
the relevant Power of Attorney and shall have done so in full compliance with
the requirements of the 1992 Plan or the 1997 Plan, as applicable.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company, DRI I, DR
International, DR Realty and ▇▇▇▇▇ ▇▇▇▇▇ jointly and severally will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
Insofar as the foregoing indemnity agreement, or the representations and
warranties contained in Section 2(a)(ii), may permit indemnification for
liabilities under the Act of any person who is an Underwriter or a partner or
controlling person of an Underwriter within the meaning of Section 15 of the Act
and who, at the date of this Agreement, is a director, officer or controlling
person of the Company, the Company has been advised that in the opinion of the
Commission such provisions may contravene federal public policy as expressed in
the Act and may therefore be unenforceable. In the event that a claim for
indemnification under such agreement or such representations and warranties for
any such liabilities (except insofar as such agreement provides for the payment
by the Company of expenses incurred or paid by a director, officer or
controlling person in the successful defense of any action, suit or proceeding)
is asserted by such a person, the Company will submit to a court of appropriate
jurisdiction (unless in the opinion of counsel for the Company the matter has
already been settled by controlling precedent) the question of whether or not
indemnification by it for such liabilities is against public policy as expressed
in the Act and therefore unenforceable, and the Company will be governed by the
final adjudication of such issue.
(b) The Selling Stockholders jointly and severally will indemnify and hold
harmless each Underwriter, its partners, directors and officers and each person
who controls such Underwriter within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred;
17
PROVIDED, HOWEVER, that the Selling Stockholders will only be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by a Selling
Stockholder specifically for use therein, it being understood and agreed that
the only such information furnished by any Selling Stockholder is as described
in Section 2(b)(ii) above; and PROVIDED FURTHER that the liability under this
Section of each Selling Stockholder shall be limited to an amount equal to the
aggregate gross proceeds paid to such Selling Stockholder from the sale of
Securities sold by such Selling Stockholder hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the 4th
paragraph under the caption "Underwriting" and the information contained in the
17th and 18th paragraphs under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section or Section 9, as the case
may be, for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such (i) settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities 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 in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other
18
relevant equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section shall be in addition to any liability which the Company and the Selling
Stockholders may otherwise have , upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company, to
each officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITER. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (PROVIDED, that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters
19
pursuant to Section 7 shall remain in effect, and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Company and the Selling Stockholders will, jointly and severally,
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Transactions Advisory Group, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at ▇▇▇▇▇ ▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief
Executive Officer, or, if sent to the Selling Stockholders or any of them, will
be mailed, delivered or telegraphed and confirmed to [name of Attorney] at
[address of Attorney]; PROVIDED, HOWEVER, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. [Name of Attorney] will act for
the Selling Stockholders in connection with such transactions, and any action
under or in respect of this Agreement taken by [Name of Attorney] will be
binding upon all the Selling Stockholders.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement, any Custody
Agreement or any Powers of Attorney or the transactions contemplated hereby or
thereby.
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
DLJ MERCHANT BANKING PARTNERS II, L.P.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJ OFFSHORE PARTNERS II, C.V.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJ DIVERSIFIED PARTNERS, L.P.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJ DIVERSIFIED PARTNERS-A, L.P.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJMB FUNDINGS II, INC.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJ MILLENNIUM PARTNERS, L.P.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJ MILLENNIUM PARTNERS-A, L.P.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJ EAB PARTNERS, L.P.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
DLJ FIRST ESC, L.P.
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
UK INVESTMENT PLAN 1997 PARTNERS
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Attorney-in-fact
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ INC.
By
--------------------------------
Name:
Title:
20
DRI I INC.
By
----------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL, INC.
By
----------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ REALTY, INC.
By
----------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇
By
----------------------------------
Name:
Title:
21
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, LLC
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By.....................................................
Name:
Title:
SCHEDULE A
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston Corporation..............
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.................................
▇.▇. ▇▇▇▇▇▇ Securities Inc..........................
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC..................
Total............................. 4,000,000
=========
SCHEDULE B
MAXIMUM
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER TO BE SOLD BE SOLD
------------------- --------------- -------------
DLJ Merchant Banking
Partners II, L.P. ............... 1,734,185
DLJ Merchant Banking
Partners II-A, L.P. ............. 69,063
DLJ Offshore Partners II, C.V. ..... 85,278
DLJ Diversified Partners, L.P. ..... 101,388
DLJ Diversified Partners-A, L.P. ... 37,652
DLJMB Funding II, Inc. ............. 307,896
DLJ Millennium Partners, L.P. ...... 28,040
DLJ Millennium Partners-A, L.P. .... 5,469
DLJ EAB Partners, L.P. ............. 7,786
DLJ First ESC, L.P. ................ 330,360
UK Investment Plan 1997 Partners ... 45,883
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ .................... 100,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ .................... 42,000
▇▇▇▇▇ ▇. ▇▇▇ ....................... 50,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ................. 55,000
--------- ---------
Total ............................. 3,000,000 1,050,000
========= =========
EXHIBIT A
[FORM OF LOCKUP LETTER]
, 2001
▇▇▇▇▇ ▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for the common stock, $0.01 par value per share (the
"SECURITIES") of ▇▇▇▇▇ ▇▇▇▇▇ Inc., and any successor (by merger or otherwise)
thereto, (the "COMPANY"), the undersigned hereby agrees that from the date
hereof and until 90 days after the public offering date set forth on the final
prospectus used to sell the Securities (the "PUBLIC OFFERING DATE") pursuant to
the Underwriting Agreement, to which you are or expect to become parties, the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse First Boston Corporation. In addition, the undersigned
agrees that, without the prior written consent of Credit Suisse First Boston
Corporation, it will not, during the period commencing on the date hereof and
ending 90 days after the Public Offering Date, make any demand for or exercise
any right with respect to, the registration of any Securities or any security
convertible into or exercisable or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market or in the issuer directed share program will
not be subject to this Agreement. A transfer of Securities to a family member or
trust may be made, provided the transferee agrees to be bound in writing by the
terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Public Offering Date shall
not have occurred on or before November 1, 2001.
Very truly yours,
............................
Name:
