Exhibit 1.2
[Revised--2/11/99]
The Corporate Executive Board Company
8,187,200 Shares/a/
Common Stock
($ .01 par value)
International Underwriting Agreement
London, England
February , 1999
Salomon Brothers International Limited
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
Friedman, Billings, ▇▇▇▇▇▇ International, Ltd.
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
As International Representatives of the several
International Underwriters,
c/o Salomon Brothers International Limited
Victoria Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Principal Selling Stockholder") and the other
Selling Stockholders listed in Schedule II (the "Other Selling Stockholders"
and, together with the Principal Selling Stockholder, the "Selling
Stockholders") propose to sell to the several international underwriters named
in Schedule I hereto (the "International Underwriters"), for whom you are acting
as representatives (the "International Representatives"), an aggregate of
1,637,440 shares of Common Stock, $.01 par value (the "Common Stock," being
hereinafter called the "International Underwritten Securities") of The Corporate
Executive Board Company, a Delaware corporation (the "Company"). The Principal
Selling Stockholder also proposes to grant to the International Underwriters,
together with the U.S. Underwriters, options to purchase up to an aggregate of
1,228,080 additional shares of Common Stock to cover over-allotments (the
"International Option Securities"; the International Option Securities, together
with the International Underwritten Securities, being hereinafter called the
"International Securities"). The shares of Common Stock to be sold by the Other
Selling Stockholders hereunder (the "Exercise Shares") shall be issued by the
Company to the Other Selling Stockholders pursuant to the exercise
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/a/ Plus an option to purchase from the Principal Selling Stockholder
up to 1,228,080 additional International Securities to cover over-allotments.
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of certain options (the "Selling Stockholder Options").
It is understood that the Company and the Selling Stockholders are
concurrently entering into the U.S. Underwriting Agreement dated the date hereof
(the "U.S. Underwriting Agreement") providing for the sale by the Selling
Stockholders of an aggregate of 6,549,760 shares of Common Stock (said shares
to be sold by the Selling Stockholders pursuant to the U.S. Underwriting
Agreement being hereinafter called the "U.S. Underwritten Securities"), in the
United States and Canada through arrangements with certain underwriters in the
United States and Canada (the "U.S. Underwriters"), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, Inc.; ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation; Friedman,
Billings, ▇▇▇▇▇▇ & Co., Inc. and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. are acting as
representatives (the "U.S. Representatives"), and providing for the grant to the
U.S. Underwriters, together with the International Underwriters, of options to
purchase from the Principal Selling Stockholder up to an aggregate of 1,228,080
additional shares of Common Stock (the "U.S. Option Securities"; the U.S. Option
Securities, together with the U.S. Underwritten Securities, being hereinafter
called the "U.S. Securities," and the U.S. Securities, together with the
International Securities being hereinafter called the "Securities").
It is further understood and agreed that the U.S. Underwriters and the
International Underwriters have entered into an Agreement Between U.S.
Underwriters and International Underwriters dated the date hereof (the
"Agreement Between U.S. Underwriters and International Underwriters"), pursuant
to which, among other things, the International Underwriters may purchase from
the U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to
the U.S. Underwriting Agreement and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to this International Underwriting Agreement.
To the extent there are no additional International Underwriters
listed on Schedule I other than you, the term International Representatives as
used herein shall mean you, as International Underwriters, and the terms
International Representatives and International Underwriters shall mean either
the singular or plural as the context requires. In addition, to the extent that
there is not more than one Selling Stockholder named in Schedule II, the term
Selling Stockholders shall mean the singular. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate.
Certain terms used in this International Underwriting Agreement are defined in
Section 17 hereof.
1. Representations and Warranties.
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(i) The Company represents and warrants to, and agrees with, each
International Underwriter as set forth below in this Section 1.
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement (file
number 333-59833) on Form S-1, including related preliminary prospectuses,
for registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including the
related preliminary prospectuses, each of which has previously been
furnished to you. The Company will next file with the Commission either
(1) prior to the Effective Date of such Registration Statement, a further
amendment to such Registration Statement (including the form of final
prospectuses) or (2) after the Effective Date of such Registration
Statement, final prospectuses in accordance with Rules 430A and 424(b). In
the case of clause (2), the Company has included in such Registration
Statement, as
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amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included in
such Registration Statement and the Prospectuses. As filed, such amendment
and form of final prospectuses, or such final prospectuses, shall contain
all Rule 430A Information, together with all other such required
information, and, except to the extent the International Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in
the latest Preliminary Prospectuses) as the Company has advised you, prior
to the Execution Time, will be included or made therein.
It is understood that two forms of prospectuses are to be used in
connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, and one form of prospectus
relating to the International Securities, which are to be offered and sold
to persons other than United States and Canadian Persons. The U.S.
Prospectus and the International Prospectus are identical except for the
outside front cover page, the inside front cover page and the outside back
cover page.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectuses are first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined in this International
Underwriting Agreement) and on any date on which Option Securities are
purchased, if such date is not the Closing Date (a "settlement date"), each
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the rules
thereunder; on the Effective Date, the Registration Statement did not or
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date,
each Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, each Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
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as to the information contained in or omitted from the Registration
Statement, or the Prospectuses (or any supplement thereto) in reliance upon
and in conformity with information furnished in the U.S. Underwriting
Agreement and the International Underwriting Agreement (together, the
"Underwriting Agreements") or in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Prospectuses (or any supplement thereto).
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
full corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectuses, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification, except where the failure to be so qualified would not
reasonably be expected to result in a material adverse effect on the
financial condition, prospects or results of operations of the Company.
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(d) The Company's authorized equity capitalization is as set forth in
the Prospectuses; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses; the
outstanding shares of Common Stock (including the Securities being sold
under the Underwriting Agreements by the Principal Selling Stockholder)
have been duly authorized and validly issued and are fully paid and
nonassessable and the Securities being sold by the Other Selling
Stockholders will, upon exercise of their options, be validly issued, fully
paid and nonassessable; the Securities being sold by the Selling
Stockholders have been approved for trading on the Nasdaq National Market
subject to official notice of issuance; the certificates for the Securities
are in valid and sufficient form; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other rights
to subscribe for the Securities; and, except as set forth in the
Prospectuses, no options, warrants or other rights to purchase from the
Company, agreements or other obligations of the Company to issue, or rights
to convert any obligations of the Company into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are
outstanding;
(e) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectuses, or
to be filed as an exhibit thereto, which is not described or filed as
required; and the statements in the Prospectuses under the heading "Certain
Tax Consequences to Non-U.S. Holders" fairly summarize the matters therein
described.
(f) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms.
(g) The Company is not an "investment company" required to be
registered under the Investment Company Act of 1940, as amended.
(h) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required to be obtained by the
Company in connection with the transactions contemplated herein, except
such as have been obtained under the Act, the filing of the Prospectuses
pursuant to Rule 424(b) and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Prospectuses.
(i) None of the exercise of the Selling Stockholder Options, the
issue of the Exercise Shares by the Company, the sale of the Securities by
the Selling Stockholders or the fulfillment by the Company and the Selling
Stockholders of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, (i) the charter or by-laws
of the Company; (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company is a
party or bound or to which its property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to the Company
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its properties (excluding for purposes of this paragraph (i) federal and
state securities laws and regulations).
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(j) Except as set forth in the Prospectuses, no holders of securities
of the Company have rights to the registration of such securities under the
Registration Statement.
(k) The consolidated historical financial statements and schedules of
the Company included in the Prospectuses and the Registration Statement
present fairly in all material respects the financial condition, results of
operations and cash flows of the Company as of the dates and for the
periods indicated, comply as to form in all material respects with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). The selected financial data, including the data under the column
"1998 Pro Forma", set forth under the caption "Selected Financial Data" in
the Prospectuses and Registration Statement fairly present, on the basis
stated in the Prospectuses and the Registration Statement, the information
included therein.
(l) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or its property is pending or, to the best knowledge of the
Company, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii) could
reasonably be expected to have a material adverse effect on the financial
condition, prospects or results of operations of the Company, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(m) The Company owns or leases all such properties as are necessary
to the conduct of its operations as presently conducted.
(n) The Company is not in violation or default of (i) any provision
of its charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its properties, as
applicable, which violation or default could reasonably be expected to have
a material adverse effect on the condition, prospects or results of
operations of the Company.
(o) To the best of the Company's knowledge, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who
have certified certain financial statements of the Company and delivered
their report with respect to the audited consolidated financial statements
and schedules included in the Prospectuses, are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder.
(p) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
except in any case in which the failure so to file would not reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectuses (exclusive of any supplement
thereto) and has paid all
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taxes required to be paid by it as shown on such returns and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not
reasonably be expected to have a material adverse effect on the financial
condition, prospects or results of operations of the Company, whether or
not arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(q) No labor problem or dispute with the employees of the Company
exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
principal suppliers, contractors or customers, that could reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(r) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the business in which it is engaged; all policies
of insurance insuring the Company or its business, assets, employees,
officers and directors are in full force and effect; the Company is in
compliance with the terms of such policies and instruments in all material
respects; and there are no material claims by the Company under any such
policy or instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause; the Company has not been
refused any insurance coverage sought or applied for; and the Company has
no reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
at a cost that would not reasonably be expected to have a material adverse
effect on the financial condition, prospects or results of operations of
the Company, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(s) The Company possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its business, and the Company
has not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, could reasonably be expected to have a material
adverse effect on the financial condition, prospects or results of
operations of the Company, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(t) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
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(u) The Company has not taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(v) The Company has fulfilled its obligations, if any, under the
minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee
Retirement Income Security Act of 1974 ("ERISA") and the regulations and
published interpretations thereunder with respect to each "plan" (as
defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company are eligible to
participate and each such plan is in compliance with the presently
applicable provisions of ERISA and such regulations and published
interpretations, except for any failure to fulfill any such obligations, or
failure to comply, that singly or in the aggregate would not reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company. The Company has not
incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to any
such plan under Title IV of ERISA, except for any such liability that would
not reasonably be expected to result in a material adverse effect on the
financial condition, prospects or results of operations of the Company.
(w) Except as set forth in or contemplated by the Registration
Statement and the Prospectuses (or any amendment or supplement thereto),
subsequent to the respective dates as of which such information is given in
the Registration Statement and the Prospectuses (or any amendment or
supplement thereto), (i) the Company has not incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Company, and (ii)
there has not been any change in the capital stock, or material increase in
the short-term debt or long-term debt, of the Company, or any material
adverse change, or any development having or which may reasonably be
expected to have a material adverse change, on the financial condition,
prospects or results of operations of the Company, whether or not arising
from transactions in the ordinary course of business.
(x) On the Effective Date and at the Execution Time, the material
appearing in the Prospectuses under the caption "Year 2000 Compliance" in
the section titled "Management's Discussion and Analysis of Financial
Condition and Results of Operation" did not or will not contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the International Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each International
Underwriter.
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(ii) Each Selling Stockholder represents and warrants to, and agrees
with, each International Underwriter that:
(a) This Agreement has been duly executed and delivered by such
Selling Stockholder and constitutes a valid and binding obligation of such
Selling Stockholder enforceable in accordance with its terms.
(b) Such Selling Stockholder is, or in the case of the Other Selling
Stockholders, will be upon the exercise of their options, the lawful owner
of the International Securities to be sold by such Selling Stockholder
under this International Underwriting Agreement and upon sale and delivery
of, and payment for, such International Securities, as provided in this
International Underwriting Agreement, such Selling Stockholder will convey
to the Underwriters title to such International Securities, free and clear
of all liens, encumbrances, equities and claims whatsoever.
(c) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the International Securities.
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated in this International
Underwriting Agreement, except such as may have been obtained under the
Act, the filing of the Prospectus pursuant to Rule 424(b) and such as may
be required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the International Securities by the
International Underwriters and such other approvals as have been obtained.
(e) Neither the sale of the International Securities being sold by
the International Underwriters by such Selling Stockholder nor the
consummation of any other of the transactions in this International
Underwriting Agreement contemplated by such Selling Stockholder or the
fulfillment of the terms hereof by such Selling Stockholder will conflict
with, result in a breach or violation of, or constitute a default under any
law or the terms of any indenture or other agreement or instrument to which
such Selling Stockholder is a party or bound, or any judgment, order or
decree applicable to such Selling Stockholder of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over such Selling Stockholder.
(iii) The Principal Selling Stockholder represents and warrants to,
and agrees with, each International Underwriter that except as set forth in the
Prospectuses, no options, warrants or other rights to purchase from the
Principal Selling Stockholder, or agreements or other obligations of the
Principal Selling Stockholder to issue shares of capital stock of or ownership
interests in the Company are outstanding.
Any certificate signed by any Selling Stockholder and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by such Selling
Stockholder, as to matters covered thereby, to each International Underwriter.
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2. Purchase and Sale. (a) Subject to the terms and conditions and
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in reliance upon the representations and warranties set forth in this
International Underwriting Agreement, each Selling Stockholder agrees, severally
and not jointly, to sell to the International Underwriters the number of
International Underwritten Securities set forth opposite the name of such
Selling Stockholder in Schedule II hereto and each International Underwriter
agrees, severally and not jointly, to purchase from the Selling Stockholders, at
a purchase price of $[ ] per share, the number of the International
Underwritten Securities set forth opposite such International Underwriter's name
in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International Underwriting
Agreement, the Principal Selling Stockholder hereby grants an option to the
several International Underwriters to purchase, severally and not jointly, up to
an aggregate of [ ] International Option Securities at the same
purchase price of [ ] per share as the International Underwriters shall pay
for the International Underwritten Securities. Said option may be exercised
only to cover over-allotments in the sale of the International Underwritten
Securities by the International Underwriters. Said option may be exercised in
whole or in part at any time (but not more than once) on or before the 30th day
after the date of the International Prospectus upon written or telegraphic
notice by the International Representatives to the Company and the Principal
Selling Stockholder setting forth the number of shares of the International
Option Securities as to which the several International Underwriters are
exercising the option and the settlement date. The number of International
Option Securities to be purchased by each International Underwriter shall be the
same percentage of the total number of shares of the International Option
Securities to be purchased by the several International Underwriters as such
International Underwriter is purchasing of the International Underwritten
Securities, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
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International Underwritten Securities and the International Option Securities
(if the option provided for in Section 2(b) hereof shall have been exercised on
or before the third Business Day prior to the Closing Date) shall be made at
10:00 AM, New York City time, on [ ] , 1999, or at such time on such
later date not more than three Business Days after the foregoing date as the
International Representatives and the U.S. Representatives shall designate,
which date and time may be postponed by agreement among the International
Representatives, the U.S. Representatives, the Selling Stockholders and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the International Securities being called in this International
Underwriting Agreement the "Closing Date"). Delivery of the International
Securities shall be made to the International Representatives for the respective
accounts of the several International Underwriters against payment by the
several International Underwriters through the International Representatives of
the respective purchase prices of the International Securities being sold by
each of the Selling Stockholders to or upon the order of the Selling
Stockholders by wire transfer payable in same-day funds to the accounts
specified by the Selling Stockholders. Delivery of the International
Underwritten Securities and the International Option Securities shall be made
through the facilities of The Depository Trust Company unless the International
Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the several International Underwriters of
the International Securities to be purchased by them from such Selling
Stockholder and the respective International Underwriters will pay any
additional stock transfer taxes involved in further transfers.
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If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Selling Stockholders will
deliver the International Option Securities (at the expense of the Company) to
the International Representatives, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ the date specified by the International Representatives (which shall be
within three Business Days after exercise of said option) certificates for the
International Option Securities in such name and denomination as the
International Representatives shall have requested for the respective accounts
of the several International Underwriters, against payment by the several
International Underwriters through the International Representatives of the
purchase price thereof to or upon the order of the Selling Stockholders by wire
transfer payable in same-day funds to the accounts specified by the Selling
Stockholders. If settlement for the International Option Securities occurs
after the Closing Date, the Selling Stockholders will deliver to the
International Representatives on the settlement date for the International
Option Securities, and the obligation of the International Underwriters to
purchase the International Option Securities shall be conditioned upon receipt
of, supplemental opinions, certificates and letters confirming as of such date
the opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement,
and that the settlement date, if any, shall occur simultaneously with the
"settlement date" under the U.S. Underwriting Agreement.
4. Offering by Underwriters. It is understood that the several
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International Underwriters propose to offer the International Securities for
sale to the public as set forth in the International Prospectus.
5. Agreements.
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(i) The Company agrees with the several International Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectuses or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectuses is otherwise required under Rule
424(b), the Company will cause the Prospectuses, properly completed, and
any supplement thereto to be filed with the Commission, or transmitted by a
means reasonably calculated to result in filing with the Commission,
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the International
Representatives of such timely filing. The Company will promptly advise
the International Representatives (1) when the Registration Statement, if
not effective at the Execution Time, and any amendment thereto, shall have
become effective, (2) when the Prospectuses, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration
11
Statement, or any Rule 462(b) Registration Statement, or for any supplement
to the Prospectuses or for any additional information, (5) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time prior to the expiration of nine months from the
date hereof when a prospectus relating to the Securities is required to be
delivered under the Act in connection with the offering of the U.S.
Securities, any event occurs as a result of which the Prospectuses as then
supplemented would include any 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 shall be necessary to amend the Registration Statement or supplement
either of the Prospectuses to comply with the Act or the rules thereunder,
the Company promptly will (1) notify the International Representatives of
any such event; (2) prepare and file with the Commission, subject to the
second sentence of paragraph (i)(a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance; and (3) supply any supplemented Prospectuses to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the International Representatives an
earnings statement or statements of the Company which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the International Representatives and
counsel for the International Underwriters, without charge, signed copies
of the Registration Statement (including exhibits thereto) and to each
other International Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by an
International Underwriter or dealer may be required by the Act as many
copies of each International Preliminary Prospectus and the International
Prospectus and any supplement thereto as the International Representatives
may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
International Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to
--------
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., for a period of 180 days following the Execution
Time, offer, sell or contract to sell or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any
12
affiliate of the Company or any person in privity with the Company or any
affiliate of the Company) directly or indirectly, or announce the offering
of, or file a Registration Statement with the Commission in respect of, any
other shares of Common Stock or any securities convertible into, or
exercisable or exchangeable for, shares of Common Stock; provided, however,
-------- -------
that the Company may file one or more registration statements on Form S-8
and may issue and sell Common Stock or make any awards pursuant to any
employee stock option plan, stock ownership plan or dividend reinvestment
plan of the Company in effect at the Execution Time and the Company may
issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time, and the Company may
issue shares of Common Stock or securities convertible into, or exercisable
or exchangeable for, shares of Common Stock in connection with an
acquisition of or merger with another corporation or the acquisition of
assets or properties thereof, provided, that the holders of any such
--------
securities shall be subject to the transfer restrictions set forth in
Section 5(iv) of (a) hereof.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
each Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage and air freight
charges) of such copies of the Registration Statement, each Preliminary
Prospectus, each Prospectus, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in connection
with the offering and sale of the Securities; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the
issuance of the Exercise Shares or the sale of the Securities by the
Selling Stockholders; (iv) the printing (or reproduction) and delivery of
the U.S. Underwriting Agreement and this International Underwriting
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Securities; (v) the registration of the Securities under the Exchange
Act and the listing of the Securities on the Nasdaq National Market; (vi)
any registration or qualification of the Securities for offer and sale
under the securities or blue sky laws of the several states (including
filing fees); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (viii) the transportation and other expenses incurred by or
on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company and the Selling Stockholders; and (x)
all other costs and expenses incident to the performance by the Company and
the Selling Stockholders of their obligations under the Underwriting
Agreements.
(ii) Each International Underwriter agrees that (a) it is not
purchasing any of the International Securities for the account of any United
States or Canadian Person, (b) it has not offered or sold, and will not offer or
sell, directly or indirectly, any of the International Securities
13
or distribute any International Prospectus to any person in the United States or
Canada, or to any United States or Canadian Person, and (c) any dealer to whom
it may sell any of the International Securities will represent that it is not
purchasing for the account of any United States or Canadian Person and agree
that it will not offer or resell, directly or indirectly, any of the
International Securities in the United States or Canada, or to any United States
or Canadian Person or to any other dealer who does not so represent and agree;
provided, however, that the foregoing shall not restrict (1) purchases and sales
-------- -------
between the U.S. Underwriters on the one hand and the International Underwriters
on the other hand pursuant to the Agreement Between U.S. Underwriters and
International Underwriters, (2) stabilization transactions contemplated under
the Agreement Between U.S. Underwriters and International Underwriters,
conducted through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (or through the U.S. Representatives
and International Representatives) as part of the distribution of the
Securities, and (3) sales to or through (or distributions of International
Prospectuses or International Preliminary Prospectuses to) persons not United
States or Canadian Persons who are investment advisors, or who otherwise
exercise investment discretion, and who are purchasing for the account of any
United States or Canadian Person.
(iii) The agreements of the International Underwriters set forth in
paragraph (ii) of this Section 5 shall terminate upon the earlier of the
following events:
(a) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph (ii) of this Section 5 and in Section 5(ii) of the U.S.
Underwriting Agreement; or
(b) the expiration of a period of 30 days after the Closing Date,
unless (1) the International Representatives shall have given notice to the
Company and the U.S. Representatives that the distribution of the
International Securities by the International Underwriters has not yet been
completed, or (2) the U.S. Representatives shall have given notice to the
Company and the International Underwriters that the distribution of the
U.S. Securities by the U.S. Underwriters has not yet been completed. If
such notice by the U.S. Representatives or the International
Representatives is given, the agreements set forth in such paragraph (ii)
shall survive until the earlier of (A) the event referred to in clause (a)
of this subsection (iii) or (B) the expiration of an additional period of
30 days from the date of any such notice.
(iv) Each International Underwriter severally represents and agrees
that:
(a) it has not offered or sold and, prior to six months from the
Closing Date, will not offer or sell in the United Kingdom any
International Securities other than to persons whose ordinary activities
involve them in acquiring, holdings, managing or disposing of investments,
(whether as principal or agent) for the purpose of their business or in
circumstances which an offer to the public within the meaning of the Public
Offers of Securities Regulations 1995;
(b) it has complied and will comply with all applicable provisions of
The Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in
relation to the International Securities, in, from or otherwise involving
the United Kingdom; and
(c) it has only issued or passed on and will only issue or pass on to
any person in the United Kingdom any document received by it in connection
with the issue of the
14
International Securities if that person is of a kind described in Article
11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)
(Exemptions) Order 1996 or a person to whom the document may otherwise
lawfully be issued or passed on.
(v) Each Selling Stockholder agrees with the several International
Underwriters that:
(a) Each Selling Stockholder will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file (or participate in
the filing of) a registration statement with the Commission in respect of,
or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Exchange
Act with respect to, any shares of Common Stock of the Company or any
securities convertible into or exercisable or exchangeable for such Common
Stock, or publicly announce an intention to effect any such transaction,
for a period of 180 days after the date of this International Underwriting
Agreement, other than sales, transfers or other distributions in
transactions that are not required to be registered under the Act,
including charitable contributions, gifts and sales to third parties,
provided that the transferee agrees to be bound by a restriction on further
--------
transfers substantially similar to the restriction set forth in this
Section 5(v)(a).
(b) Such Selling Stockholder will not take any action designed to or
which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by an underwriter or dealer may
be required under the Act, of any change in information in the Registration
Statement or the Prospectuses relating to such Selling Stockholder.
6. Conditions to the Obligations of the International Underwriters.
----------------------------------------------------------------
The obligations of the International Underwriters to purchase the International
Underwritten Securities and the International Option Securities, as the case may
be, shall be subject to the accuracy of the representations and warranties on
the part of the Company and the Selling Stockholders contained in this
International Underwriting Agreement as of the Execution Time, the Closing Date
and any settlement date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company and the Selling Stockholders made in any certificates
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholders of their respective obligations under this International
Underwriting Agreement and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the U.S. Representatives and the International
Representatives agree in writing to a later time, the Registration Statement
will become effective not later than (i) 6:00 PM New York City time on the date
of determination of the public offering price, if such determination occurred at
or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City time on
such date; if filing of the Prospectuses, or any supplement thereto, is required
pursuant to Rule 424(b), the Prospectuses, and any such
15
supplement, will be filed, or transmitted by a means reasonably calculated to
result in filing with the Commission, in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened by the Commission.
(b) The Company shall have caused ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel for the Company, to have furnished to the International Representatives
their opinion, dated the Closing Date and addressed to the International
Representatives to the effect set forth in the U.S. Underwriting Agreement under
Section 6(b).
(c) The Selling Stockholders shall have caused ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Selling Stockholders, to have furnished to the International
Representatives their opinion dated the Closing Date and addressed to the
International Representatives, to the effect set forth in the U.S. Underwriting
Agreement under Section 6(c).
(d) The Representatives shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale
of the Securities, the Registration Statement, the Prospectuses (together with
any supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company and each Selling Stockholder shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectuses, any supplements
to the Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in this
International Underwriting Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectuses (exclusive of any supplement thereto), there has been
no material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(f) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed by such Selling Stockholder, dated the
Closing Date, to the effect that (i) the signer of such certificate has
carefully examined the Registration Statement, the Prospectuses, any supplement
to either of the Prospectuses and the U.S. Underwriting Agreement and this
16
International Underwriting Agreement, (ii) the representations and warranties of
each Selling Stockholder in the U.S. Underwriting Agreement and this
International Underwriting Agreement are true and correct in all material
respects on and as of the Closing Date to the same effect as if made on the
Closing Date and (iii) the Selling Stockholder has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(g) The Company shall have caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to have
furnished to the Representatives letters, at the Execution Time and at the
Closing Date, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Representatives, to the effect
set forth in Section 6(g) of the U.S. Underwriting Agreement.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectuses (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the financial
condition or results of operations of the Company whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the International Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or delivery
of the International Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectuses (exclusive of any
supplement thereto).
(i) The closing of the purchase of the U.S. Securities pursuant to
the U.S. Underwriting Agreement shall occur concurrently with the closing
described herein.
(j) The Securities shall have been listed and admitted and authorized
for trading on the Nasdaq National Market, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(k) On or prior to the Execution Time, the National Association of
Securities Dealers, Inc. shall have approved the Underwriters' participation in
the distribution of the Securities to be sold by the Selling Stockholders.
(l) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from each
executive officer and director of the Company addressed to the Representatives
[24 recipients of special bonus to be locked up also].
(m) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably
request.
(n) The Representatives shall be reasonably satisfied with the terms
of all stockholders agreements and other agreements between the Company and its
stockholders that (i) have not been received by or made available to the
Representatives prior to the Execution Time, (ii) are entered into after the
Execution Time or (iii) are amended after the Execution Time.
17
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in the U.S.
Underwriting Agreement and this International Underwriting Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in this
International Underwriting Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the International
Representatives and counsel for the Underwriters, this International
Underwriting Agreement and all obligations of the International Underwriters
under this International Underwriting Agreement may be canceled at, or at any
time prior to, the Closing Date by the International Representatives. Notice of
such cancelation shall be given to the Company and each Selling Stockholder in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Underwriters, at Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
on the Closing Date.
7. Reimbursement of International Underwriters' Expenses. If the
------------------------------------------------------
sale of the International Securities provided for in this International
Underwriting Agreement is not consummated because any condition to the
obligations of the International Underwriters set forth in Section 6 hereof is
not satisfied, because of any termination pursuant to Section 10(i) hereof or
because of any refusal, inability or failure on the part of the Company or any
Selling Stockholder to perform any agreement in this International Underwriting
Agreement or comply with any provision hereof other than by reason of a default
by any of the International Underwriters, the Company will reimburse the
International Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. on demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each International Underwriter, the directors,
officers, employees and agents of each International Underwriter and each person
who controls any International Underwriter within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law 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 a material fact contained in the
Registration Statement for the registration of the Securities as originally
filed or in any amendment thereof, or in any U.S. or International Preliminary
Prospectus or in either of the Prospectuses, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; 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 any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any International Underwriter through the
International Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
18
(b) Each Selling Stockholder severally agrees to indemnity and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each International Underwriter, the directors, officers,
employees and agents of each International Underwriter and each person who
controls the Company or any Underwriter within the meaning of either the Act or
the Exchange Act and each other Selling Stockholder, if any, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Selling Stockholder specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Selling Stockholder may otherwise have.
(c) Each International Underwriter severally and not jointly agrees
to indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and each
Selling Stockholder, to the same extent as the foregoing indemnity to each
International Underwriter, but only with reference to written information
relating to such International Underwriter furnished to the Company by or on
behalf of such International Underwriter through the International
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any International Underwriter may otherwise have. The Company
and each Selling Stockholder acknowledge that the statements set forth in the
last paragraph of the cover page regarding delivery of the International
Securities, the legend in block capital letters on page 2 related to
stabilization, syndicate covering transactions and penalty bids and, under the
heading "Underwriting", (i) the sentences related to concessions and
reallowances and (ii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any U.S. or International Preliminary
Prospectus and the Prospectuses constitute the only information furnished in
writing by or on behalf of the several International Underwriters for inclusion
in any U.S. or International Preliminary Prospectus or the Prospectuses.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a), (b) or (c) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
-------- -------
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the
19
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought under this International
Underwriting Agreement (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Selling Stockholders and
the International Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending the same)
(collectively "Losses") to which the Company, each of the Selling Stockholders
and one or more of the International Underwriters may be subject in such
proportion as is appropriate to reflect the relative fault of the Company, each
of the Selling Stockholders and the International Underwriters in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations; provided, however, that in no case
-------- -------
shall any International Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the International Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such International Underwriter.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company, the Selling Stockholders or the International Underwriters, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Stockholders and the International Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (e), 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. For purposes of
this Section 8, each person who controls an International Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an International Underwriter shall have the same rights to
contribution as such International Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (e).
(f) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the initial public offering price of the
International Securities sold by such Selling Stockholder to the International
Underwriters.
20
9. Default by an International Underwriter. If any one or more
----------------------------------------
International Underwriters shall fail to purchase and pay for any of the
International Securities agreed to be purchased by such International
Underwriter or International Underwriters under this International Underwriting
Agreement and such failure to purchase shall constitute a default in the
performance of its or their obligations under this International Underwriting
Agreement, the remaining International Underwriters shall be obligated severally
to take up and pay for (in the respective proportions which the amount of
International Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of International Securities set forth opposite the
names of all the remaining International Underwriters) the International
Securities which the defaulting International Underwriter or International
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate amount of International Securities which the defaulting
International Underwriter or International Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of International Securities
set forth in Schedule I hereto, the remaining International Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the International Securities, and if such nondefaulting
International Underwriters do not purchase all the International Securities,
this International Underwriting Agreement will terminate without liability to
any nondefaulting International Underwriter, the Selling Stockholders or the
Company. In the event of a default by any International Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the International Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectuses or in any other documents or arrangements may be effected.
Nothing contained in this International Underwriting Agreement shall relieve any
defaulting International Underwriter of its liability, if any, to the Company,
the Selling Stockholders and any nondefaulting International Underwriter for
damages occasioned by its default under this International Underwriting
Agreement.
10. Termination. This International Underwriting Agreement shall be
------------
subject to termination in the absolute discretion of the International
Representatives, by notice given to the Company prior to delivery of and payment
for the International Securities, if at any time prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission, (ii)
the Nasdaq National Market or trading in securities generally on the New York
Stock Exchange or the Nasdaq National Market shall have been suspended or
limited or minimum prices shall have been established on such Exchange or
National Market, (iii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
International Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the International
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Stockholder and of the International
Underwriters set forth in or made pursuant to this International Underwriting
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any International Underwriter, any Selling Stockholder
or the Company or any of the officers, directors or controlling persons referred
to in Section 8 hereof, and will survive delivery of and payment for the
International Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancelation of this International Underwriting
Agreement.
21
12. Notices. All communications under this International
--------
Underwriting Agreement will be in writing and effective only on receipt, and, if
sent to the International Representatives, will be mailed, delivered or
telefaxed to the Salomon Brothers International Limited, General Counsel (fax
no.: ( ) ) and confirmed to such General Counsel at Salomon Brothers
International Limited, Victoria Plaza, 111 Buckingham Palace Road, London SW1W
0SB ENGLAND, Attention: General Counsel; or, if sent to the Company or any
Selling Stockholder, will be mailed, delivered or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇
and confirmed to it at The Watergate, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: Legal Department.
13. Successors. This International Underwriting Agreement will inure
-----------
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation under
this International Underwriting Agreement.
14. Applicable Law. This International Underwriting Agreement will
---------------
be governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed within the State of New
York.
15. Counterparts. This International Underwriting Agreement may be
------------
signed in one or more counterparts, each of which shall constitute an original
and all of which together shall constitute one and the same agreement.
16. Headings. The section headings used in this International
---------
Underwriting Agreement are for convenience only and shall not affect the
construction hereof.
17. Definitions. The terms which follow, when used in this
------------
International Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Agreement Between U.S. Underwriters and International Underwriters"
shall mean the Agreement Between U.S. Underwriters and International
Underwriters dated the date hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
State ment, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this International
Underwriting Agreement is executed and delivered by the parties hereto.
22
"International Preliminary Prospectus" shall have the meaning set
forth under "U.S. Preliminary Prospectus."
"International Prospectus" shall mean such form of prospectus relating
to the International Securities as first filed pursuant to Rule 424(b)
after the Execution Time or, if no filing pursuant to Rule 424(b) is made,
such form of prospectus included in the Registration Statement at the
Effective Date.
"International Representative" shall mean the addressees of the
International Underwriting Agreement.
"International Securities" shall mean the International Underwritten
Securities and the International Option Securities.
"International Underwriters" shall mean the several underwriters named
in Schedule I to the International Underwriting Agreement.
"International Underwriting Agreement" shall mean this agreement
relating to the sale of the International Securities by the Selling
Stockholders to the International Underwriters.
"Losses" shall have the meaning set forth in 8(e).
"Option Securities" shall mean the U.S. Option Securities and the
International Option Securities.
"Other Selling Stockholders" shall mean all Selling Stockholders
listed in Schedule II other than ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"Preliminary Prospectus" shall have the meaning set forth under "U.S.
Preliminary Prospectus."
"Principal Selling Stockholder" shall mean ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"Prospectuses" and "each Prospectus" shall mean the U.S. Prospectus
and the International Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
23
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a)(i) hereof.
"Securities" shall mean the U.S. Securities and the International
Securities.
"Selling Stockholders" shall mean the persons named on Schedule II to
the U.S. Underwriting Agreement and the International Underwriting
Agreement.
"Underwriter" and "Underwriters" shall mean the U.S. Underwriters and
the International Underwriters.
"Underwriting Agreements" still mean the U.S. Underwriting Agreement
and the International Underwriting Agreement.
"U.S. Preliminary Prospectus" and the "International Preliminary
Prospectus", respectively, shall mean any preliminary prospectus with
respect to the offering of the U.S. Securities and the International
Securities, as the case may be, referred to in paragraph 1(i)(a) above and
any preliminary prospectus with respect to the offering of the U.S.
Securities and the International Securities, as the case may be, included
in the Registration Statement at the Effective Date that omits Rule 430A
Information; and the U.S. Preliminary Prospectus and the International
Preliminary Prospectus are hereinafter collectively called the "Preliminary
Prospectuses".
"U.S. Prospectus" shall mean the prospectus relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time or, if
no filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities and the
U.S. Option Securities.
"U.S. Underwriting Agreement" shall mean the U.S. Underwriting
Agreement dated the date hereof related to the sale of the U.S. Securities
by the Selling Stockholders to the U.S. Underwriters.
"U.S. Underwriters" shall mean the several underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws of
the United States or Canada or of any political subdivision thereof, or any
estate or trust the income of which is subject to United States
24
or Canadian Federal income taxation, regardless of its source (other than
any non-United States or non-Canadian branch of any United States or
Canadian Person), and shall include any United States or Canadian branch of
a person other than a United States or Canadian Person.
"U.S." or "United States" shall mean the United States of America
(including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"Year 2000 Problem" shall have the meaning set forth in 1(i)(y).
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several International Underwriters.
Very truly yours,
The Corporate Executive Board Company
By:_____________________________
Name:
Title:
_____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ GRAT Trust Number 1
By:_____________________________
Name:
Title:
_____________________________
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
25
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International
Friedman, Billings, ▇▇▇▇▇▇ International, Ltd.
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
By: Salomon Brothers International Limited
By:
_____________________________
Name:
Title:
For themselves and the other
several International Underwriters
named in Schedule I to the foregoing
Agreement.
SCHEDULE I
----------
NUMBER OF INTERNATIONAL
UNDERWRITTEN SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ -----------------------------
Salomon Brothers International Limited..........................................
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ International......................................
Friedman, Billings, ▇▇▇▇▇▇ International, Ltd. .................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ International.....................................................
-----------------
Total...................................................................
=================
SCHEDULE II
-----------
Number of International Maximum Number of
Underwritten Securities International Option
Selling Stockholders: to be Sold Securities to be Sold
--------------------- ------------------------ ----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
[address, fax no.]......
The ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
GRAT Trust Number 1
[address, fax no.]......
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
[address, fax no.]......
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[address, fax no.]......
------------------------ ----------------------
Total..............
======================== ======================
EXHIBIT A
[Letterhead of officer, director or major stockholder of Corporation]
The Corporate Executive Board Company
-------------------------------------
Public Offering of Common Stock
-------------------------------
January , 1999
Salomon Brothers International Limited and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
As Representatives of the several U.S. Underwriters
and International Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
U.S. Underwriting Agreement and International Underwriting Agreement (together,
the "Underwriting Agreements"), between The Corporate Executive Board Company, a
Delaware corporation (the "Company"), and each of you as representatives of a
group of U.S. Underwriters and International Underwriters named therein,
relating to an underwritten public offering of Common Stock, $ par
value (the "Common Stock"), of the Company.
In order to induce you and the other U.S. Underwriters and
International Underwriters to enter into the Underwriting Agreements, the
undersigned will not, without the prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file (or participate in the filing of) a registration statement
with the Securities and Exchange Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder with respect to, any shares of capital stock
of the Company or any securities convertible into or exercisable or exchangeable
for such capital stock, or publicly announce an intention to effect any such
transaction, for a period of 180 days after the date of the Underwriting
Agreements, other than shares of Common Stock disposed of as bona fide gifts
approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
2
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
Yours very truly,
By:
--------------------------
Name:
Address:
