Exhibit 1.1
General Maritime Corporation
7,000,000 Shares of Common Stock
(par value $0.01 per share)
FORM OF UNDERWRITING AGREEMENT
New York, New York
May __, 2001
Xxxxxx Brothers Inc.
ABN AMRO Rothschild LLC
Xxxxxxxxx & Company, Inc.
As Representatives
of the Several Underwriters
c/x Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
General Maritime Corporation, a Xxxxxxxx Islands corporation (formerly
named General Maritime Ship Holdings Ltd., the "Company"), proposes, subject to
the terms and conditions stated herein, to issue and sell to the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom Xxxxxx
Brothers Inc., ABN AMRO Rothschild LLC and Xxxxxxxxx & Company, Inc. are acting
as representatives (the "Representatives"), an aggregate of 7,000,000 shares
(the "Firm Shares") of its common stock, par value $0.01 per share (the "Common
Stock"). In addition, certain shareholders of the Company named on Schedule 2
hereto (the "Selling Shareholders") propose to grant to the Underwriters an
option to purchase up to an additional 1,050,000 shares of Common Stock (the
"Option Shares") to cover over-allotments, if requested by the Underwriters in
accordance with Section 3(c) hereof. The Firm Shares and the Option Shares are
referred to herein as the "Shares." The words "you" and "your" refer to the
Representatives.
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-1 (No.
333-49814), for the registration of the Shares under the Securities Act of 1933,
as amended (the "Act"). Such registration statement, including the prospectus,
financial statements and schedules, exhibits and all other documents filed as a
part thereof, as amended through the time of effectiveness of the registration
statement, including any information deemed to be a part thereof as of the time
of effectiveness pursuant to Rule 430A or Rule 434 of the Rules and Regulations
of the
Commission under the Act (the "Regulations"), is herein called the "Registration
Statement." Any registration statement filed by the Company pursuant to Rule
462(b) under the Act is herein called the "Rule 462(b) Registration Statement",
and from and after the date and time of filing of the Rule 462(b) Registration
Statement the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The prospectus, in the form first filed with the
Commission pursuant to Rule 424(b) of the Regulations or filed as part of the
Registration Statement at the time of effectiveness if no Rule 424(b) or Rule
434 filing is required, is herein called the "Prospectus." The term "preliminary
prospectus" as used herein means a preliminary prospectus included in the
Registration Statement at the time it is declared effective as described in Rule
430A of the Regulations; provided, however, if the Company has, with the consent
of the Representatives, elected to rely upon Rule 434 under the Act, the term
"Prospectus" shall mean the Company's prospectus subject to completion dated
_______, 2001 (such preliminary prospectus is herein called the "Rule 434
preliminary prospectus"), together with the applicable term sheet (the "Term
Sheet") prepared and filed by the Company with the Commission under Rules 434
and 424(b) under the Act and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
a preliminary prospectus, the Prospectus or the Term Sheet, or any amendments or
supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("XXXXX").
(b) Each preliminary prospectus and the Prospectus, if filed by
electronic transmission pursuant to XXXXX (except as may be permitted by
Regulation S-T under the Securities Act), was identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of
the Shares. At the time of the effectiveness of the Registration Statement or
the effectiveness of any Rule 462(b) Registration Statement and any
post-effective amendment thereto, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission and at
the Closing Date (as defined in Section 3(b)) and the Additional Closing Date,
if any (as defined in Section 3(c)), the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto complied (and, in
the event of any of the aforementioned filings that may occur in the future
will, at the time of such filing(s), comply) in all material respects with the
applicable provisions of the Act and the Regulations, did not and will not
contain an untrue statement of a material fact and did not and will not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading (as to the Prospectus and any
amendments thereof and supplements thereto, in light of the circumstances under
which they were made). When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the Registration Statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(a)
of the Regulations) and when any amendment thereof or supplement thereto was
first filed with the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied in all material respects with the
applicable provisions of the Act and the Regulations and did not contain an
untrue statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading in light of the circumstances under which they were made.
No representation and warranty is made in this subsection (b), however, with
respect to any information contained in or omitted from the Registration
Statement or the Prospectus or any
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related preliminary prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information relating to the Underwriters
furnished in writing to the Company by or on behalf of any Underwriter through
you expressly for use in connection with the preparation thereof. The Commission
has not issued any order preventing or suspending the use of any preliminary
prospectus and has not instituted or, to the knowledge of the Company,
threatened to institute any proceedings with respect to such an order. If Rule
434 is used, the Company will comply with the requirements of Rule 434.
(c) Each of the Company and each of its direct and indirect
subsidiaries (the "Subsidiaries") has been duly organized and is validly
existing as a corporation, limited partnership or limited liability company in
good standing under the laws of its jurisdiction of organization, with full
corporate power and authority to own, lease and operate its properties and
engage in the business in which it is engaged or in which it proposes to engage
as described in the Registration Statement, the preliminary prospectus and the
Prospectus. Each of the Company and the Subsidiaries is duly registered and
qualified to do business as a foreign corporation in good standing in each
jurisdiction where the character, location, ownership or leasing of its
properties (owned, leased or licensed) or the nature or conduct of its business
requires such registration or qualification, except where the failure to be so
qualified would not, individually or in the aggregate, result in a material
adverse effect on or affect the business, operations, assets, properties,
condition (financial or other), stockholders' equity, prospects or results of
operations of the Company and the Subsidiaries taken as a whole (a "Material
Adverse Effect").
(d) Ernst & Young LLP and Deloitte & Touche LLP, the accountants who
have expressed their opinion with respect to the financial statements (including
the related notes and supporting schedules) of the Company filed with the
Commission as a part of the Registration Statement, the preliminary prospectus
and the Prospectus, are, with respect to the Company and each Subsidiary,
independent public accountants as required by the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(e) As of the date hereof, the Company has an authorized
capitalization as set forth in the Registration Statement, the preliminary
prospectus and the Prospectus and there has been no material change in its
capitalization since that date, except as expressly contemplated by the
Prospectus. All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws and were
not issued in violation of any preemptive right, resale right, registration
right, right of first refusal or similar right. The authorized and outstanding
capital stock of the Company conforms to the description thereof contained in
the Registration Statement and the Prospectus (and such description correctly
states, in all material respects, the substance of the provisions of the
instruments defining the capital stock of the Company). Except as described in
the Registration Statement and the Prospectus, there are no authorized or
outstanding rights (including, without limitation, preemptive rights, co-sale
rights, resale rights, rights of first refusal or similar rights), warrants or
options to acquire, or instruments convertible into or exercisable or
exchangeable for, any share of capital stock or other equity interest or
ownership interest in the Company, or any Subsidiary or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the
issuance of any capital stock or other equity interest or ownership interest in
the Company, or any Subsidiary or any such convertible or exercisable or
exchangeable securities or instruments
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or any such rights, warrants or options, except for any such rights that have
been effectively waived in writing so as not to be exercisable in connection
with the registration, offer or sale of the Shares. The Shares to be issued
pursuant to this Agreement will not be issued in violation of any preemptive
right, co-sale right, resale right, right of first refusal or similar right. The
description of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder, set forth in
the Registration Statement, the preliminary prospectus and the Prospectus
accurately and fairly present, in all material respects, the information
required to be shown with respect to such plans, arrangements, options and
rights. The Shares have been duly authorized for issuance and, when issued and
delivered to and paid for by the Underwriters pursuant to this Agreement, will
be validly issued, fully paid and nonassessable, good title to the Shares will
be transferred to the Underwriters free and clear of any liens, encumbrance,
security interest or claim (each a "Lien") other than any Liens placed thereon
by the Underwriters and the certificates representing the Shares will be in
valid and sufficient form. All the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and are owned directly or indirectly by the Company, free and
clear of any Lien, other than security interests granted in connection with
financing and other transactions relating to ship-owning subsidiaries of the
Company ("Permitted Liens").
(f) Other than the description under the caption "Business-Legal
Proceedings" in the Registration Statement, there is (i) no action, suit or
proceeding or, to the knowledge of the Company, no investigation, before or by
any court, arbitrator or governmental agency, body or official, domestic or
foreign, pending or, to the knowledge of the Company, threatened or
contemplated, as to which the Company, or any Subsidiary is (or, to the extent
threatened or contemplated, will be) a party or as to which the business, assets
or property of the Company, or any Subsidiary (or, to the extent threatened or
contemplated, will be) subject, (ii) no statute, rule or regulation that has
been enacted, adopted or issued by any governmental agency, body or official,
and (iii) no injunction, restraining order or order of any nature that has been
issued by a federal or state court or foreign court of competent jurisdiction to
which the Company, or any Subsidiary is or will be subject or affecting the
business, assets or property of the Company or any Subsidiary, that would
reasonably be expected to (in the case of clauses (i), (ii) and (iii)),
individually or in the aggregate, whether or not arising from transactions in
the ordinary course of business, have a Material Adverse Effect, be required to
be disclosed in the Registration Statement or the Prospectus or materially and
adversely affect the ability of the Company to perform its obligations under
this Agreement. There are no legal or administrative proceedings concerning the
Company or any Subsidiary of a character that would be required to be described
in a registration statement on Form S-1 under the Act that are not described, as
required, in the Registration Statement and the Prospectus. The transactions
described under the caption "Recapitalization and Acquisitions" in the
Prospectus have been completed in all material respects as so described.
(g) The financial statements of the Company, together with the
related notes thereto, which are a part of the Registration Statement,
preliminary prospectus and the Prospectus, present fairly in all material
respects the financial position and the results of operations, changes in
stockholders' equity and changes in cash flows of the Company as of the
respective dates and for the respective periods specified therein. All of such
financial statements and related notes have been prepared in conformity with
generally accepted accounting
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principles applied on a consistent basis throughout the periods involved and
comply as to form in all material respects with the applicable accounting
requirements included in Regulation S-X under the Act. The supporting schedules,
the "Summary Financial and Other Data", the "Selected Consolidated Financial and
Other Data", the "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the financial tables included in the Registration
Statement, the preliminary prospectus and the Prospectus fairly present the
information purported to be shown thereby at the respective dates thereof and
for the respective periods covered thereby and have been presented on a basis
consistent with that of the audited financial statements therein. No other
financial statements or supporting schedules are required by the Act or
Regulation S-X to be included therein.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described in
the Prospectus there has not been (i) any loss or adverse change, or any
development which would reasonably be expected to result in a loss or adverse
change, in or affecting the business, properties, management, assets, prospects,
stockholders' equity, operations, condition (financial or other), or results of
operations of the Company and the Subsidiaries taken as a whole, (ii) any
transaction entered into by the Company, or any Subsidiary, except transactions
in the ordinary course of business; (iii) any obligation, direct or contingent,
incurred by the Company or any Subsidiary which is material to the Company and
the Subsidiaries taken as a whole, (iv) any change in the capital stock or
outstanding indebtedness of the Company, or (v) any dividend or distribution of
any kind declared, paid or made on the capital stock of the Company, which in
any case described in clauses (i), (ii), (iii), (iv) or (v) above, would
reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement.
(i) The Company and the Subsidiaries have good title to all
properties and assets described in the Registration Statement, the preliminary
prospectus and the Prospectus as being owned by them, free and clear of all
Liens except Permitted Liens. The Company and the Subsidiaries have valid and
enforceable leases for the properties leased by them, the Company and the
Subsidiaries enjoy peaceful and undisturbed possession under all such leases
with such exceptions as do not materially interfere with the use thereof made by
the Company and the Subsidiaries, and such leases conform in all material
respects to the descriptions thereof, if any, set forth in the Registration
Statement, the preliminary prospectus and the Prospectus. The Company and the
Subsidiaries own, lease or otherwise have rights to use all properties and
assets as are important to their respective operations as now conducted and as
proposed to be conducted.
(j) The Company and the Subsidiaries have all requisite corporate
power and authority, and all licenses, certificates, approvals, consents,
concessions, qualifications, orders, registrations, authorizations and permits
from all federal, state, foreign and other governmental and regulatory agencies,
bodies and authorities ("Permits") that are material to and necessary for the
conduct of the business of the Company and the Subsidiaries as such business is
currently conducted. The Company reasonably believes that it will be able to
obtain Permits that are material to and necessary for the conduct of the
business of the Company and the Subsidiaries as such business is proposed to be
conducted as described in the Registration Statement and the Prospectus. All
such Permits are valid and in full force and effect and there is no proceeding
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pending or, to the best knowledge of the Company, threatened, which would
reasonably be expected to cause any such Permit to be withdrawn, canceled,
suspended or not renewed. The Company and the Subsidiaries are not in violation
of, or in default under, and have fulfilled and performed all their obligations
with respect to, such Permits, except as would not reasonably be expected to
have a Material Adverse Effect. No event has occurred which allows or would
allow revocation or termination of any such Permit or result in any material
impairment of the rights of the holder of any such Permit. The Contracts to
which the Company or any Subsidiary is a party are valid and binding agreements,
enforceable against the Company or such Subsidiary in accordance with their
terms, except as the enforceability thereof may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and, to the best of the
Company's knowledge, the other contracting party or parties thereto are not in
breach or default under any of such Contracts, except in each case as would not
have a Material Adverse Effect. The descriptions in the Registration Statement
of Contracts and other documents are accurate in all material respects and
fairly present the information required to be shown with respect thereto by the
Act and the Rules and Regulations, and there are no Contracts or other documents
concerning the Company or any Subsidiary of a character that would be required
by the Act or the Rules and Regulations to be described in the Registration
Statement or filed as exhibits to the Registration Statement which are not
described or filed as required, and the exhibits which have been filed are
complete and correct copies of the documents of which they purport to be copies.
(k) The Company and the Subsidiaries are not (i) in violation of
their respective certificates of incorporation, as amended, or other
constitutive documents, as the case may be, or bylaws, as amended or (ii) in
breach of or default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, franchise, joint venture, deed of trust, bond, note, lease,
Permit or other agreement or instrument to which the Company or such Subsidiary
is a party or by which the Company or such Subsidiary may be bound or to which
any of the property or assets of the Company or such Subsidiary is subject (each
a "Contract"), or in violation of any law, order, rule, regulation, writ,
injunction or decree of any court or governmental agency, body or authority,
except in the case of this clause (ii) for such breaches, defaults or violations
that would not reasonably be expected to, individually or in the aggregate, have
a Material Adverse Effect or materially and adversely affect the ability of the
Company to perform its obligations under this Agreement.
(l) Subsequent to the most recent respective dates as of which
information is given in the Prospectus (or, if the Prospectus is not in
existence, the most recent preliminary prospectus), and except as expressly
contemplated therein, neither the Company nor any of the Subsidiaries has
incurred, other than in the ordinary course of its business, any material
liabilities or obligations, direct or contingent, purchased any of its
outstanding capital stock, paid or declared any dividends or other distributions
on its capital stock or entered into any material transactions not in the
ordinary course of business, and there has been no material change in capital
stock or debt or any material adverse change in the business, properties,
assets, net worth, condition (financial or other), or results of operations or
prospects of the Company and the Subsidiaries taken as a whole.
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(m) The Company and the Subsidiaries own or possess or have the
unconditional right to use, or can acquire on reasonable terms, all material
patents, patent applications, trademarks, service marks, trade names, licenses,
copyrights and proprietary or other confidential information currently employed
by them in connection with their respective businesses, and neither the Company
nor any such Subsidiary has received such notice of infringement of or conflict
with asserted rights of any third party with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling, or finding, would result in a Material Adverse Effect on the Company and
the Subsidiaries, except as described in or contemplated by the Registration
Statement, preliminary prospectus and the Prospectus.
(n) The Company and the Subsidiaries have filed on a timely basis
with the appropriate taxing authorities (or have received an extension for
filing with respect to) all necessary federal, state and foreign income and
franchise tax returns, reports and other information required to be filed by
them. Each such tax return, report or other information was, when filed,
accurate and complete in all material respects. The Company and the Subsidiaries
have duly paid, or have made adequate charges, accruals and reserves in the
financial statements for, all such taxes required to be paid by them and any
other assessment, fine or penalty levied against them, for all periods as to
which the tax liability of the Company or the Subsidiaries have not been finally
determined. No tax deficiency has been or, to the best of the Company's
knowledge, is reasonably likely to be asserted or contemplated against the
Company or any Subsidiary. Neither the Company nor any Subsidiary will incur any
taxes as a result of their formation and the transfer of the Subsidiaries' stock
or other equity interests to the Company pursuant to the contribution agreements
and recapitalization plan described in the Prospectus (or, if the Prospectus is
not in existence, the most recent preliminary prospectus) or the acquisition
agreement entered into with United Overseas Tankers, Ltd. except as disclosed in
the Prospectus. The Company believes that from and after the Closing (i) neither
the Company nor any Subsidiary will be classified as, and the Company and each
Subsidiary will conduct their operations in a manner designed to avoid
classification as, at any time, a "controlled foreign corporation," a "foreign
personal holding company", a "passive foreign investment company", or a
"personal holding company," within the meaning of Sections 957, 552, 1297 and
542, respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"), and (ii) neither the Company nor any Subsidiary will derive any income
which is effectively connected with the conduct of a trade or business within
the United States for purposes of Section 882 of the Code.
(o) Except as expressly provided in the Prospectus, no Subsidiary is
currently prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such Subsidiary's capital stock,
from repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary.
(p) The Company and each Subsidiary maintain insurance of the types
and in amounts which they reasonably believe to be adequate to protect against
the accident-related risks involved in the conduct of their businesses and they
maintain appropriate levels of environmental damage and pollution insurance
coverage, consistent with standard industry practice.
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(q) Neither the Company nor any Subsidiary is involved in any labor
dispute, disturbance, lockout, slowdown or stoppage of employees, and, to the
best knowledge of the Company, no such dispute or disturbance is threatened or
imminent. The Company is not aware of any existing or imminent labor disturbance
by the employees of any of its principal suppliers, including, but not limited
to, suppliers of officers and crew to its vessels that would reasonably be
expected to result in a Material Adverse Effect or materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement.
(r) Neither the Company nor any Subsidiary has violated any foreign,
federal or state law relating to discrimination in the hiring, promotion, or pay
of employees, nor any applicable foreign, federal or state wages and hours law,
nor any provisions of ERISA or the rules and regulations promulgated thereunder,
the consequences of which violation would reasonably be expected to have a
Material Adverse Effect.
(s) In the ordinary course of its business, the Company (including
for purposes of this paragraph any of the Company's predecessor entities)
periodically reviews the effect of Environmental Laws (as defined below) on the
business, operations and properties of the Company and the Subsidiaries, in the
course of which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties, scrapping of vessels or compliance with
Environmental Laws, or any Permit, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that the Company and the
Subsidiaries (i) are in compliance in all material respects with all applicable
foreign, United States federal, state and local environmental laws, rules,
regulations, treaties, statutes and codes relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants including petroleum, crude oil or any fraction
thereof ("Environmental Laws"), (ii) have received all Permits required of them
under applicable Environmental Laws to conduct their business as currently
conducted, (iii) are in compliance in all material respects with all terms and
conditions of any such Permit and (iv) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants.
No action, proceeding, revocation proceeding, writ, injunction or claim is
pending or, to the knowledge of the Company, threatened, relating to the
Environmental Laws or to the Company's or any Subsidiary's activities involving
Hazardous Materials. "Hazardous Materials" means any material or substance (i)
that is prohibited or regulated by any Environmental Law or (ii) that has been
designated or regulated by any domestic or foreign governmental body or
authority as radioactive, toxic, hazardous or otherwise a danger to health,
reproduction or the environment. Neither the Company nor any Subsidiary has been
named as a "potentially responsible party" under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended.
(t) Neither the Company nor any Subsidiary has engaged in the
generation, use, manufacture, transportation or storage of any Hazardous
Materials on any of the Company's or any Subsidiary's properties or former
properties, except in compliance in all material respects with all applicable
Environmental Laws. No Hazardous Materials have been treated or disposed of on
any of the Company's or any Subsidiary's properties or on properties formerly
owned or
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leased by the Company or any Subsidiary during the time of such ownership or
lease, except in compliance in all material respects with Environmental Laws.
(u) No payments or inducements have been made or given, directly or
indirectly, to any federal or local official or candidate for, any federal or
state office in the United States or foreign offices by the Company or any
Subsidiary, by any of their officers, directors, employees or agents or, to the
best knowledge of the Company, by any other person in connection with any
opportunity, Contract, Permit, certificate, consent, order, approval, waiver or
other authorization relating to the business of the Company or any Subsidiary,
except for such payments or inducements as were lawful under applicable written
laws, rules and regulations. Neither the Company nor any Subsidiary, nor any
director, officer, agent, employee or, to the knowledge of the Company, other
person associated with or acting on behalf of the Company or any Subsidiary, (i)
has used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, unlawful rebate,
payoff, influence payment, kickback or other unlawful payment in connection with
the business of the Company or any Subsidiary.
(v) Neither the Company nor any Subsidiary has any liability for any
prohibited transaction (within the meaning of Section 4975(c) of the Code or
Part 4 of Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) and neither the Company, any Subsidiary nor any other trade
or business (whether or not incorporated) which together with the Company or any
Subsidiary would be deemed a single employer for purposes of ERISA or the Code
(an "ERISA Affiliate") has any liability for an accumulated funding deficiency
(within the meaning of Section 412 of the Code or Section 302 of ERISA) or any
complete or partial withdrawal liability (within the meaning of Section 4201 of
ERISA), or any other liability under Title IV of ERISA that has not been
satisfied in full (including any contingent liability that could have a Material
Adverse Effect), with respect to any pension, profit sharing or other plan which
is subject to ERISA, to which the Company, any Subsidiary or any ERISA Affiliate
make or ever have made a contribution and in which any employee of the Company,
any Subsidiary is or has ever been a participant. With respect to such plans,
the Company and the Subsidiaries (and each ERISA Affiliate, to the extent that
non-compliance could give rise to joint and several liability) are in compliance
in all material respects with all applicable provisions of ERISA. Neither the
Company nor any Subsidiary has any comparable liability under any foreign
statute or law and the Company and the Subsidiaries are in compliance in all
material respects with applicable comparable foreign laws.
(w) The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization, (ii) transactions are appropriately recorded to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences and (v) assets are properly accounted for and
safeguarded against loss from unauthorized use. The Company has not received
from its
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independent public accountants a letter describing or been informed by them of,
a substantial or material deficiency in the Company's internal accounting
controls in connection with their audit of the Company's financial statements
incorporated by reference in the Registration Statement, the preliminary
prospectus and the Prospectus.
(x) There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company or any Subsidiary to or for the benefit of any of
the officers or directors or stockholders of the Company or any Subsidiary or
any of the members of the families of any of them, except as disclosed in the
Registration Statement and the Prospectus.
(y) No consent, approval, registration, authorization, filing,
qualification, Permit or order of or with any court or supervisory, regulatory,
administrative or governmental agency, body or authority, arbitrator or others
(including stockholders), foreign or domestic, is required in connection with
the execution and delivery of this Agreement, the issuance, sale or delivery of
the Shares to be issued, sold and delivered by the Company hereunder, or the
consummation of any other of the transactions contemplated herein or the
fulfillment of the terms hereof, except the registration under the Act of the
Shares and such consents, approvals, registrations, authorizations, filings,
qualifications, Permits or orders, as may be required under the state securities
or "Blue Sky" laws or the bylaws and rules of the National Association of
Securities Dealers, Inc. (the "NASD") or as have been obtained and which are in
full force and effect in connection with the offer, purchase and distribution by
the Underwriters of the Shares.
(z) The execution, delivery and performance by the Company of this
Agreement and the issuance and sale of the Shares and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
corporate action. Neither the issuance, offer, sale or delivery of the Shares,
the execution, delivery and performance by the Company of this Agreement nor the
compliance by the Company with all the provisions hereof nor the consummation of
the transactions contemplated hereby (i) conflicts with or will conflict with,
or constitutes or will constitute a breach or violation of or a default under
(or an event that, with notice or lapse of time or both, would constitute such a
breach, violation or default), or results in or will result in the imposition of
a Lien upon any property or assets of the Company or any Subsidiary, under, any
of the terms or provisions of the certificate of incorporation or by-laws or
other organizational or constitutive documents of the Company or any Subsidiary,
nor (ii) conflicts with or will conflict with or constitutes or will constitute
a breach or violation of, or a default under (or an event that with notice or
the lapse of time or both would constitute a default) or the loss of any
material benefit under, or the termination of, or results in or will result in
the creation or imposition of any Lien upon any property or assets of the
Company or any Subsidiary pursuant to, any Contract, other than any conflict,
breach, violation or default that would not result in a Material Adverse Effect,
nor (iii) violates or conflicts with or will violate or conflict with any law,
statute, rule or regulation applicable to the Company or any Subsidiary or any
judgment, decree or order applicable to the Company or any Subsidiary of any
court or supervisory, regulatory, administrative or governmental agency, body or
authority, or arbitrator having jurisdiction over the Company or any Subsidiary
or any of their respective properties or assets, other than any violation or
conflict that would not result in a Material Adverse Effect.
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(aa) The Company has full corporate power and authority to enter
into this Agreement and to perform the transactions contemplated hereby. This
Agreement and the transactions contemplated herein have been duly and validly
authorized, executed and delivered by the Company and this Agreement constitutes
the legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforceability thereof may
be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium
or other laws now or hereafter in effect relating to or affecting creditors'
rights generally and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and except
to the extent that the provisions of Section 8 hereof may be limited by
applicable federal or state securities laws or unenforceable as against public
policy.
(bb) The description of the Shares in the Registration Statement and
the Prospectus is accurate in all material respects.
(cc) The Company is not now, and as a result of the offer and sale
of the Shares in the manner contemplated in this Agreement, the Registration
Statement and the Prospectus and the application of the net proceeds of such
sale as described in the section entitled "Use of Proceeds" of the Registration
Statement and the Prospectus, will not be, an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act"), without taking account of any
exemption arising out of the number or type of holders of the Company's
securities.
(dd) The Company has not incurred any liability for a fee,
commission, or other compensation on account of the employment of a broker or
finder in connection with the transactions contemplated by this Agreement other
than the discount contemplated hereby.
(ee) Neither the Company nor any Subsidiary nor, to the Company's
best knowledge, any of its or their officers, directors or affiliates (as
defined in Rule 501(b) of Regulation D ("Regulation D") under the Act) has taken
or will take, directly or indirectly, any action designed to cause or to result
in or that has constituted, or might reasonably be expected to cause or result
in or constitute, under the Exchange Act, or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(ff) The Company has not distributed and will not distribute prior
to the later of (A) the Additional Closing Date and (B) the completion of the
distribution of the Shares by the Underwriters and dealers, any offering
material (including, without limitation, content on its Website, if any, that
may be deemed to be offering material) in connection with the offering and sale
of the Shares other than the preliminary prospectus and the Prospectus.
(gg) There are no holders of securities of the Company which by
reason of the filing of the Registration Statement or otherwise in connection
with the sale of the Shares contemplated hereby, have the right to request or
demand that the Company register under the Act any of their securities in
connection with the Registration Statement, except for any such
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rights that have been effectively waived in writing so as not to be exercisable
in connection with the registration, offer or sale of the Shares.
(hh) There is no tax, duty, levy, impost, deduction, charge or
withholding imposed by any political subdivision or taxing authority, domestic
or foreign, by virtue of the execution, delivery, performance or enforcement, or
to ensure the legality, validity or admissibility into evidence, of this
Agreement, and neither is it necessary that the Shares be submitted to, or filed
or recorded with, any court or other authority to ensure such legality,
validity, enforceability or admissibility into evidence. There are no transfer
taxes or other similar fees or charges under the laws of any jurisdiction,
domestic or foreign, any political subdivision thereof, or any state, required
to be paid in connection with the execution and delivery of this Agreement or
the issuance and sale by the Company of the Shares.
(ii) All necessary actions, authorizations, conditions and things
reasonably required to be taken, given, fulfilled and done by the Company and
the Subsidiaries on or prior to the date of this Agreement, have been, or on the
Closing Date or the Additional Closing Date, if any, will have been taken,
given, fulfilled and done in connection with (i) the issue of the Prospectus,
(ii) the execution and delivery of this Agreement, (iii) the execution, delivery
and issuance of the Shares, (iv) the compliance with all provisions of this
Agreement to be performed or complied with by such date, and (v) the right of
any holders of securities of the Company to request or demand that the Company
register under the Act any of their securities in connection with the
Registration Statement.
(jj) The Shares have been approved for listing on the New York Stock
Exchange, subject only to official notice of issuance.
(kk) Except as described in the Registration Statement and the
Prospectus, the Company has not sold or issued any shares of capital stock
within the six month period preceding the date of the Prospectus, all of which
sales and issuances were made in compliance with the Act and the Regulations.
(ll) Each officer and director of the Company named under the
heading "Management" in the Prospectus, and each of the stockholders of the
Company (such stockholders of the Company, together with each officer and
director of the Company named under the heading "Management" in the Prospectus,
to be referred to individually as a "Locked-Up Party" and collectively as the
"Locked-Up Parties"), has agreed to sign an agreement substantially in the form
attached hereto as Exhibit A (the "Lock-up Agreements"). The Company also has
provided to counsel for the Underwriters true, accurate and complete copies of
all of the lock-up agreements presently in effect or effected hereby. The
Company has given "no transfer" instructions to its transfer agent and registrar
with respect to such securities.
(mm) Since its inception, the Company has not incurred any material
liability arising under or as a result of the application of the provisions of
the Act.
(nn) The Company meets the requirements for use of Form S-1 under
the Regulations.
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Any certificate signed by an officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
2. Representations, Warranties and Agreements of the Selling Shareholders.
Each Selling Shareholder severally represents, warrants and agrees with each of
the Underwriters solely with respect to itself that:
(a) Such Selling Shareholder has, and immediately prior to the
Additional Closing Date such Selling Shareholder will have, good and valid title
to the Option Shares to be sold by such Selling Shareholder hereunder on such
date, free and clear of all Liens (other than any Liens placed thereon by the
Underwriters); and upon delivery of such Option Shares and payment therefor
pursuant hereto, good and valid title to such Option Shares, free and clear of
all Liens (other than any Liens placed thereon by the Underwriters), will pass
to the several Underwriters.
(b) Such Selling Shareholder has the full right, power and authority
to enter into this Agreement and a Power of Attorney and Custody Agreement (the
"Selling Shareholder Agreement" and, together with all other similar agreements
executed by the other Selling Shareholders, the "Selling Shareholder
Agreements") and to sell, transfer and deliver the Shares to be sold by such
Selling Shareholder hereunder; the execution, delivery and performance of this
Agreement and the Selling Shareholder Agreement by such Selling Shareholder and
the consummation by such Selling Shareholder of the transactions contemplated
hereby and thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which such Selling Shareholder is a party or by which such Selling Shareholder
is bound or to which any of the property or assets of such Selling Shareholder
is subject, nor will such actions result in any violation of any law, statute,
order, rule or regulation of any court or governmental agency or body having
jurisdiction over such Selling Shareholder or the property or assets of such
Selling Shareholder; and, except for the registration of the Option Shares under
the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act or applicable state
securities or "Blue Sky" laws in connection with the purchase and distribution
of the Shares by the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this Agreement
and the Selling Shareholder Agreement by such Selling Shareholder and the
consummation by such Selling Shareholder of the transactions contemplated hereby
and thereby.
(c) The information with respect to such Selling Shareholder in the
Registration Statement and the Prospectus, including any amendments or
supplements thereto, does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made.
(d) Such Selling Shareholder has no actual knowledge that the
representations and warranties of the Company contained in Section 1 hereof are
not true and correct in all material respects, is familiar with the Registration
Statement and the Prospectus (as amended or
13
supplemented) and has no actual knowledge of any material fact, condition or
information not disclosed in the Registration Statement, as of the date thereof,
or the Prospectus (or any amendment or supplement thereto), as of the applicable
filing date, which has had or would have a Material Adverse Effect and is not
prompted to sell Option Shares by any materially adverse information concerning
the Company or any Subsidiary which is not set forth in the Registration
Statement and the Prospectus.
(e) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(f) Such Selling Shareholder has duly executed and delivered, in the
form heretofore furnished to the Representatives, the Selling Shareholder
Agreement irrevocably appointing _________ and __________, or any of them, as
attorneys-in-fact (the "Attorneys-in-Fact"), and [Mellon Investor Services LLC],
as custodian (the "Custodian"); the Custodian is authorized to deliver the
Shares to be sold by such Selling Shareholder hereunder and to accept payment
therefor; and each Attorney-in-Fact is authorized to execute and deliver this
Agreement and the certificate referred to in Section 10(g), to sell, assign and
transfer to the Underwriters the Shares to be sold by such Selling Shareholder
hereunder, to determine the purchase price to be paid by the Underwriters to
such Selling Shareholder, as provided in Section 3 hereof, to authorize the
delivery of the Shares to be sold by such Selling Shareholder hereunder, to
accept payment therefor and otherwise to act on behalf of such Selling
Shareholder in connection with this Agreement.
(g) Such Selling Shareholder has irrevocably placed in custody with
the Custodian certificates, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in blank with
signatures guaranteed, for all of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement or, pursuant to the Custody Agreement,
has irrevocably committed to do so prior to the Closing Date, in each case with
irrevocable instructions to deliver such Shares to the Underwriter pursuant to
this Agreement.
(h) Neither such Selling Shareholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, or has any other association
with (within the meaning of Article I, Section (ee) of the By-laws of the
National Association of Securities Dealers, Inc. (the "NASD")), any member firm
of the NASD.
3. Purchase, Sale and Delivery of the Shares.
(a) The Company agrees to issue and sell to the several Underwriters
the Firm Shares upon the terms herein set forth. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at a purchase price of $_____ per Share, the number
of Firm Shares set forth opposite the respective names of the Underwriters in
Schedule 1 hereto
14
plus an additional number of Firm Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 11 hereof.
(b) Payment of the purchase price for the Firm Shares and the Option
Shares (if the option provided for in Section 3(c) below shall have been
exercised on or before the third full business day prior to the Closing Date)
shall be made at the offices of Xxxxxx Brothers Inc., Three World Financial
Center, New York, New York 10285, or at such other place as shall be agreed upon
by Xxxxxx Brothers Inc. and the Company, at 10:00 A.M. on the third full
business day (as permitted under Rule 15c6-1 under the Exchange Act) (unless
postponed in accordance with the provisions of Section 11 hereof) following the
date of the effectiveness of the Registration Statement (or, if the Company has
elected to rely upon Rule 430A of the Regulations, the third or fourth full
business day (as permitted under Rule 15c6-1 under the Exchange Act) after the
determination of the public offering price of the Firm Shares), or such other
time not later than five business days after such date as shall be agreed upon
by you and the Company (such time and date of payment and delivery being herein
called the "Closing Date"); provided, however, that if the Company has not made
available to the Underwriters copies of the Prospectus in such quantities and at
such places requested by the Underwriters, no later than noon on the business
day following the execution of this Agreement, Xxxxxx Brothers Inc. may, in its
sole discretion, postpone the Closing Date until no later than two full business
days following the delivery of such copies of the Prospectus. Payment for the
Firm Shares shall be made to the Company by wire transfer in immediately
available funds to the order of the Company, against delivery, as provided
hereof, of the Firm Shares to the Underwriters. The Company shall deliver or
cause to be delivered at Xxxxxx Brothers Inc.'s election either: (i) a credit
representing the Firm Shares to an account or accounts at The Depository Trust
Company, as designated by Xxxxxx Brothers Inc. for the accounts of Xxxxxx
Brothers Inc. and the several Underwriters on the Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the
amounts of the purchase price there for; or (ii) certificates for the Firm
Shares which shall be registered in such name or names and in such authorized
denominations as Xxxxxx Brothers Inc. may request on or before noon on the
business day prior to the Closing Date. The Company will permit you to examine
and package such certificates for delivery at noon on the business day prior to
the Closing date. "Business day" shall mean any day other than a Saturday,
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.
(c) In addition, the Selling Shareholders hereby grant to the
Underwriters the option to purchase, severally and not jointly, up to 1,050,000
Option Shares, each at the same purchase price per share to be paid by the
Underwriters to the Company for the Firm Shares as set forth in this Section 3,
for the sole purpose of covering over-allotments in the sale of Firm Shares by
the Underwriters. The maximum number of Shares to be sold by each Selling
Shareholder upon exercise of such option is set forth opposite such Selling
Shareholder's name on Schedule 2 hereto. This option may be exercised from time
to time and at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by notice from Xxxxxx Brothers Inc. to the
Selling Shareholders. Such notice shall set forth the aggregate number of Option
Shares as to which the option is being exercised and the date and time, as
reasonably determined by Xxxxxx Brothers Inc., when the Option Shares are to be
delivered (such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that the
15
Additional Closing Date shall not be earlier than the Closing Date or earlier
than the second full business day after the date on which the option shall have
been exercised nor later than the fifth full business day after the date on
which the option shall have been exercised (unless such time and date are
postponed in accordance with the provisions of Section 11 hereof). Each Selling
Shareholder shall deliver, or cause to be delivered at Xxxxxx Brothers Inc.'s
election either: (i) a credit representing the Option Shares to an account or
accounts at The Depository Trust Company, as designated by Xxxxxx Brothers Inc.
for the accounts of Xxxxxx Brothers Inc. and the several Underwriters on the
Additional Closing Date, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price therefor; or
(ii) certificates for the Option Shares which shall be registered in such name
or names and in such authorized denominations as Xxxxxx Brothers Inc. may
request at or before noon on the business day prior to the Additional Closing
Date. Each Selling Shareholder will permit you to examine and package such
certificates for delivery at or before noon on the business day prior to the
Additional Closing Date.
The number of Option Shares to be sold to each Underwriter shall be
the number which bears the same ratio to the aggregate number of Option Shares
being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule 1 hereto (or such number increased as set forth in
Section 11 hereof) bears to the total number of Firm Shares being purchased from
the Company, subject, however, to such adjustments to eliminate any fractional
shares as Xxxxxx Brothers Inc. in its sole discretion shall make.
(d) Time shall be of the essence and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the
Underwriters.
4. Offering. It is understood that the several Underwriters propose to
offer the Shares for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Company.
The Company covenants and agrees with each Underwriter that:
(a) If the Registration Statement has not been declared
effective at the time of the execution of this Agreement, the Company will
use its best efforts to cause the Registration Statement and any
amendments thereto to become effective as promptly as possible. If Rule
430A is used or the filing of the Prospectus is otherwise required under
Rule 424(b) or Rule 434, the Company will file the Prospectus (properly
completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule 434
within the prescribed time period and will provide evidence satisfactory
to you of such timely filing. If the Company elects to rely on Rule 434,
the Company will prepare and file a term sheet that complies with the
requirements of Rule 434. If the Company elects to rely on Rule 462(b)
under the Act, the Company shall file a Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) under the Act prior to
the time confirmations are sent or given, as specified by Rule 462(b)(2)
under the Act, and shall pay the applicable fees in accordance with Rule
111 under the Act.
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The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any request
by the Commission for any amendment of or supplement to the Registration
Statement, any preliminary prospectus or the Prospectus or for additional
information, (iii) of the mailing or the delivery to the Commission for
filing of any amendment of or supplement to the Registration Statement or
the Prospectus, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening,
of any proceedings therefor, (v) of the receipt of any comments from the
Commission, and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any proceeding for
that purpose. If a stop order or suspension of qualification is proposed
at any time, the Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain the lifting thereof as
soon as possible. The Company will not file any amendment to the
Registration Statement or any amendment of or supplement to, any
preliminary prospectus or the Prospectus (including the prospectus
required to be filed pursuant to Rule 424(b) or Rule 434) that differs
from the prospectus on file at the time of the effectiveness of the
Registration Statement before or after the effective date of the
Registration Statement to which you shall reasonably object in writing
after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act by an Underwriter or dealer any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would, in the reasonable judgment of Xxxxxx
Brothers Inc., counsel to the Underwriters or the Company, include an
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, in light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or supplement
the Registration Statement or the Prospectus to comply with any law, the
Company promptly will notify the Representatives and prepare and file with
the Commission and furnish at its own expense to the Underwriters and
dealers, an appropriate amendment or supplement (in form and substance
reasonably satisfactory to Xxxxxx Brothers Inc.) which will correct such
untrue statement or omission or so that the Registration Statement, any
preliminary prospectus and the Prospectus will comply with the law and
will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible. If at any time during
the ninety (90) day period after the Registration Statement becomes
effective, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in the opinion of Xxxxxx Brothers
Inc. the market price of the Shares has been or is likely to be materially
affected (regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus), the Company
will, after notice from Xxxxxx Brothers Inc. advising the Company to the
effect set forth above, forthwith prepare, consult with Xxxxxx Brothers
Inc. concerning the substance of and disseminate a press release or other
public statement, reasonably satisfactory to Xxxxxx Brothers Inc.,
responding to or commenting on such rumor, publication or event.
17
(c) As soon as practicable, but not later than 45 days after
the end of its fiscal quarter in which the first anniversary date of the
effective date of the Registration Statement occurs, the Company will make
generally available (within the meaning of Section 11(a) of the Act) to
its stockholders and to you an earnings statement or statements of the
Company which will satisfy the provisions of Section 11(a) of the Act and
Rule 158 of the Regulations, covering a period of at least twelve
consecutive months beginning after the effective date of the Registration
Statement; and will, during the period of five years from the date of the
Prospectus, make generally available (within the meaning of Section 11(a)
of the Act) to its stockholders as soon as practicable after the end of
each fiscal year, an annual report (including a balance sheet and
statements of financial condition, operations, cash flows and changes in
stockholders' equity of the Company, certified by the Company's
independent public accountants) and, as soon as practicable after the end
of each of the first three quarters of each fiscal year (beginning with
the fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company for
such quarter in reasonable detail.
(d) The Company will furnish without charge to you and counsel
to the Underwriters three complete signed copies of the Registration
Statement (including exhibits thereto), and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as, in the reasonable opinion of counsel to the Underwriters, delivery of
a prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each preliminary prospectus and the Prospectus and any
amendment or supplement thereto as you may request.
(e) The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions (both national and
foreign) as Xxxxxx Brothers Inc. may designate and will make such
applications, file such documents and furnish such information as may be
required for that purpose and will maintain such qualifications in effect
for so long as required for the distribution of the Shares; provided,
however, that in no event shall the Company be required to qualify to do
business in any such jurisdiction in which it is not already qualified or
to file a general consent to service of process in any jurisdiction in
which it is not now so required, other than in respect of suits arising
out of the offering or sale of the Shares. The Company will, from time to
time, prepare and file such statements, reports and other documents, as
are or may be required to continue such qualifications in effect for so
long a period as Xxxxxx Brothers Inc. may request for the distribution of
the Shares. The Company will cooperate with Xxxxxx Brothers Inc. and
counsel to the Underwriters in connection with the filings required to be
made by Xxxxxx Brothers Inc. with the NASD and will pay the fee of the
NASD in connection with its review of the offering of the Shares and will
use its best efforts to maintain quotation of its shares on the New York
Stock Exchange.
(f) During the period of five years from the effective date of
the Registration Statement, the Company will furnish to you and, upon
request, to each of the several Underwriters, without charge, copies of,
in such quantities as you or the Underwriters may request from time to
time, (i) as soon as available, all reports or other communications
(financial or other) furnished generally by the Company to its
18
stockholders, (ii) as soon as practicable after the end of each fiscal
year, copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements of
income, stockholders' equity and cash flows for the year then ended and
the opinion thereon of the Company's independent public or certified
public accountants; and (iii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or other report
filed by the Company with the Commission, the NASD, any other supervisory,
regulatory, administrative or governmental agency, body or authority
whether pursuant to the Exchange Act or otherwise or any national
securities exchange or system on which any class of securities of the
Company is listed or quoted.
(g) For a period of 180 days from the date of the Prospectus
(the "Lock-Up Period"), without the prior written consent of Xxxxxx
Brothers Inc., who shall consult with ABN AMRO Rothschild LLC before
granting or withholding such consent, the Company and each Locked-Up Party
shall not, directly or indirectly: (1) issue, offer for sale, contract to
sell, sell, pledge or otherwise dispose of (or enter into any transaction
or device which is designed to, or could be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by any person at any time
in the future of) any shares of Common Stock or securities convertible
into, exercisable or exchangeable for, or representing the right to
receive, Common Stock or sell or grant options, rights or warrants with
respect to any shares of Common Stock or any of the foregoing or announce
the offering of or register for sale any of the foregoing or any
outstanding shares of Common Stock; provided, however, that the Company
may grant options and issue and sell Common Stock pursuant to any
directors' and employees' stock plan (including any employees' stock
purchase plan), stock ownership plan, dividend reinvestment plan, loan
agreement providing for the conversion of debt, or warrants of the Company
in effect at the effective date of the Registration Statement and which
are described in the Prospectus so long as none of those shares that may
be issued to any Locked-Up Party may be transferred during the Lock-Up
Period and the Company shall enter stop transfer instructions with its
transfer agent and registrar against any such transfer (provided, however,
that the foregoing shall not prohibit the Company's issuance of Common
Stock in connection with the transactions described in the Registration
Statement under the caption "Recapitalization and Acquisitions"); or (2)
enter into any swap, repurchase agreement, pledge, transfer or other
transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of such shares of Common Stock or
other securities, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise. In addition, during such period, the
Company also agrees not to file any registration statement with respect
to, and, except as provided in this Section 5(g), each of the executive
officers, directors and certain stockholders of the Company has agreed not
to make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock without the prior
written consent of Xxxxxx Brothers Inc., who shall consult with ABN AMRO
Rothschild LLC before granting or withholding such consent.
19
(h) During the period when, in the opinion of counsel to the
Underwriters, the delivery of a Prospectus by an Underwriter or dealer is
required by the Act, the Company will comply, at its own expense, with all
requirements imposed upon it by the Commission, the Act, the Regulations,
the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, so far as necessary to permit the continuance of
sales of or dealing in the Shares during such period in accordance with
the provisions hereof and the Prospectus. In addition, during such period
the Company shall file, on a timely basis, with the Commission and the New
York Stock Exchange all reports and documents required to be filed under
the Exchange Act.
(i) Each of the Company and the Subsidiaries will conduct its
business in compliance in all material respects with all applicable laws,
rules, regulations, decisions, directives and orders. The Company will do
and perform all things required or necessary to be done and performed
under this Agreement by the Company on or prior to the Closing Date and to
comply or cause to be satisfied, to the extent such are within its
control, the conditions precedent to the several obligations of the
Underwriters specified in Section 10 hereof.
(j) Neither the Company nor any of its affiliates (as defined
in Regulation D under the Act), will take, directly or indirectly, any
action designed to cause or result in, or which constitutes or which might
reasonably be expected to cause, result in, or constitute, under the
Exchange Act, or otherwise, stabilization or manipulation of the price of
the shares of Common Stock of the Company to facilitate the offering and
distribution of the Shares or any other action prohibited by Regulation M
under the Exchange Act.
(k) The Company will apply the net proceeds to the Company
from the offering and sale of the Shares to be sold by the Company in the
manner set forth in the Prospectus under "Use of Proceeds."
(l) The Company shall engage and maintain, at its expense, a
registrar and transfer agent for the Shares.
(m) The Company is familiar with the Investment Company Act
and the rules and regulations thereunder, and has in the past conducted
its affairs, and will in the future conduct its affairs, in such a manner
so as to ensure that the Company was not and will not be an "investment
company" within the meaning of the Investment Company Act and the rules
and regulations thereunder.
(n) The Company shall obtain directors' and officers'
liability insurance in the minimum amount of [$___ ] million which shall
apply to the offering contemplated hereby.
(o) The Company shall cause to be prepared and delivered, at
its expense, within one business day from the date hereof, to the
Underwriters an "electronic Prospectus" to be used by the Underwriters in
connection with the offering and sale of the Shares. As used herein, the
term "electronic Prospectus" means a form of Prospectus, and any amendment
or supplement thereto, that meets each of the following conditions:
20
(i) it shall be encoded in an electronic format, satisfactory to you, that
may be transmitted electronically by the Underwriters to offerees and
purchasers of the Shares for at least during the period when, in the
opinion of counsel to the Underwriters, the Prospectus is required to be
delivered under the Act or the Exchange Act; (ii) it shall disclose the
same information as the paper Prospectus and Prospectus filed pursuant to
XXXXX, except to the extent that graphic and image material cannot be
disseminated electronically, in which case such graphic and image material
shall be replaced in the electronic Prospectus with a fair and accurate
narrative description or tabular representation of such material, as
appropriate; and (iii) it shall be in or convertible into a paper format
or an electronic format, satisfactory to you, that will allow investors to
store and have continuously ready access to the Prospectus at any future
time, without charge to investors (other than any fee charged for
subscription to the system as a whole and for on-line time). The Company
hereby confirms that it has included or will include in the Prospectus
filed pursuant to XXXXX or otherwise with the Commission and in the
Registration Statement at the effective date of the Registration Statement
an undertaking that, upon receipt of a request by an investor or his or
her representative during the period when, in the opinion of counsel to
the Underwriters, delivery of a Prospectus by an Underwriter or dealer may
be required by the Act, the Company shall transmit or cause to be
transmitted promptly, without charge, a paper copy of the Prospectus.
6. Payment of Expenses.
Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay, or reimburse
the Representatives if paid by the Underwriters, all costs, fees and expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to costs, fees and expenses of or relating
to (i) the preparation by the Company, printing and filing of the Registration
Statement and exhibits to it, each preliminary prospectus, the Prospectus and
any amendment or supplement to the Registration Statement or the Prospectus
(including, without limitation, the fees and expenses of the Company's counsel,
accountants and other advisors), (ii) the preparation and delivery of
certificates representing the Shares, (iii) the preparation of this Agreement
and Underwriter's Questionnaires, Underwriter's Powers of Attorney, Blue Sky
Memoranda, Master Agreements Among Underwriters and Master Selling Agreements,
and all other documents relating to the public offering of the Shares (including
those documents supplied to the Underwriters in quantities as hereinabove
stated) and furnishing (including costs of shipping and mailing) such copies of
the Registration Statement, the Prospectus and any preliminary prospectus, and
all exhibits, schedules, consents, certificates of experts, amendments and
supplements thereto, as may be reasonably requested for use in connection with
the offering and sale of the Shares by the Underwriters or by dealers to whom
Shares may be sold, (iv) the listing of the Shares on the New York Stock
Exchange, (v) any filings required to be made with, and the review by, the NASD
and the fees, disbursements and other charges of the Underwriters' counsel in
connection therewith, (vi) the registration or qualification (or obtaining
exemptions from such registration or qualification) of the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions designated
pursuant to Section 5(e), including the fees, disbursements and other charges of
the Underwriters' counsel in connection therewith, and the preparation and
printing of preliminary, supplemental and final Blue Sky memoranda, (vii) the
issuance, transfer and delivery of the Shares to the Underwriters,
21
including any issue, transfer, stamp or other taxes payable thereon, (viii) the
transfer agent or registrar for the Shares, (ix) the costs and expenses of the
Underwriters incident to the preparation and undertaking of "road show"
presentations to be made to prospective investors, and (x) all other fees, costs
and expenses referred to in Part II of the Registration Statement.
7. Covenants of the Selling Shareholders. Each Selling Shareholder
severally agrees:
(a) Except as contemplated by this Agreement, for a period of 180
days from the date of the Prospectus, not to, directly or indirectly, [insert
language from Lock-Up Agreement];
(b) That the Shares to be sold by such Selling Shareholder
hereunder, which are represented by the certificates held in custody for such
Selling Shareholder pursuant to the Selling Shareholder Agreement, is subject to
the interest of the Underwriters, that the arrangements made by such Selling
Shareholder for such custody are irrevocable and that the obligations of such
Selling Shareholder hereunder and thereunder shall not be terminated by any act
of such Selling Shareholder, by the death, disability, incompetence or
incapacity of such Selling Shareholder, by operation of law or by any other
event; and
(c) To deliver to the Representatives prior to the Closing Date a
properly completed and executed United States Treasury Department Form W-9.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, officers, employees, and agents and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any and all losses, liabilities,
claims, damages, actions and expenses whatsoever, as incurred (including but not
limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing, compromising or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), 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, or at common law or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement for
the registration of the Shares, as originally filed or any amendment thereof, or
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; or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission to state therein a
material fact necessary in order to make statements made therein, in the light
of the circumstances under which they were made, not misleading; or (iii) in
whole or in part upon any inaccuracy in the representations and warranties of
the Company contained herein; or (iv) in whole or in part upon any failure of
the Company to perform its obligations hereunder or under law; or (v) any act or
failure to act or any alleged act or failure to act by an Underwriter in
connection with, or relating in any manner to, the Shares or
22
the offering contemplated hereby, and which is included as part of or referred
to in any loss, claim, damage, liability or action arising out of or based upon
any matter covered by clause (i), (ii), (iii) or (iv) above, provided that the
Company will not be liable under this clause (v) to the extent that a court of
competent jurisdiction shall have determined by a final judgment that such loss,
claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its bad faith or willful misconduct; and provided, however, that the Company
will not be liable in any such case covered by clauses (i), (ii), (iii), (iv) or
(v) above to the extent but only to the extent that any such loss, liability,
claim, damage, action or expense 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 relating to
an Underwriter furnished to the Company by or on behalf of any Underwriter
through you expressly for use therein; and provided, further, that with respect
to any preliminary prospectus, the foregoing indemnity in this Section 8(a)
shall not inure to the benefit of any Underwriter from whom the person asserting
any loss, claim, damage, liability or expense purchased Shares, or any of its
directors, officers or employees or any person controlling such Underwriter, if
copies of the Prospectus were timely delivered to the Underwriter and a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Shares to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability, action or
expense. This indemnity agreement will be in addition to any liability which the
Company may otherwise have, including under this Agreement.
(b) The Selling Shareholders, severally in proportion to the number
of Shares to be sold by each of them hereunder, shall indemnify and hold
harmless each Underwriter, its directors, officers, employees and agents and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against any and all losses,
liabilities, claims, damages, actions and expenses whatsoever, as incurred in
investigating, preparing, compromising or defending against any litigation,
commenced or threatened, or any claims whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them become subject, under the Act, the Exchange Act or other federal or
state statutory law or regulation, or at common law or otherwise, insofar as
such losses, liabilities, claims, damages, or expenses (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement for
the registration of the Shares, as originally filed or any amendment thereof, or
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; or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission to state therein a
material fact necessary in order to make statements made therein, in the light
of the circumstances under which they were made, not misleading; or (iii) in
whole or in part upon any inaccuracy in the representations and warranties of
the Selling Shareholders contained herein; or (iv) in whole or in part upon any
failure of the Selling Shareholders to perform their obligations hereunder or
under law; or (v) any act or failure to act or any alleged act or failure to act
by an Underwriter in connection with, or relating in any manner to, the Shares
or the offering contemplated hereby, and which is included as part of or
23
referred to in any loss, claim, damage, liability or action arising out of or
based upon any matter covered by clause (i), (ii), (iii) or (iv) above, provided
that the Selling Shareholders will not be liable under this clause (v) to the
extent that a court of competent jurisdiction shall have determined by a final
judgment that such loss, claim, damage, liability or action resulted directly
from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its bad faith or willful misconduct; provided, however, that
no Selling Shareholder shall be liable under this paragraph 6(b) or otherwise
for any amount in excess of the net proceeds received by it (computed without
deduction for any taxes on such amount) in connection with the sale of the
Option Shares; provided, further, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus, which untrue statement or omission or alleged untrue statement or
omission in such preliminary prospectus was corrected in the Prospectus, the
indemnity agreement contained in this paragraph 6(b) shall not inure to the
benefit of any Underwriter, its directors, officers, employees and agents or
controlling person to the extent that any such losses, liabilities, claims,
damages, actions and expenses result from the fact that a copy of the Prospectus
was not sent or given to the person asserting any such losses, liabilities,
claims, damages, actions and expenses at or prior to the written confirmation of
the sale of the applicable Shares to such person by such Underwriter (provided
that the Company shall have complied with the provisions of Section 8(a) and (c)
hereof and such Underwriter shall have been provided with the number of copies
of such Prospectus requested by such Underwriter in a timely manner) and it is
judicially determined that such delivery was required under the Act and was not
so made.
(c) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, its directors, officers, employees and agents and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, and each Selling Shareholder
against any losses, liabilities, claims, damages, actions and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Shares, as originally
filed or any amendment thereof, or 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; or (ii) upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact necessary in order to make
statements made therein, in the light of the circumstances under which they were
made, not misleading, but only to the extent, that any such loss, liability,
claim, damage or expense 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 relating to
an Underwriter furnished to the Company by or on behalf of any Underwriter
through you expressly for use therein. This indemnity will be in addition to any
liability which any Underwriter may otherwise have, including under this
Agreement.
24
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability or obligation which it may have under this Section 8 or otherwise (i)
unless the failure to notify shall result 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 other than the indemnification
obligation provided in paragraph (a), (b) or (c) above). In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent it may elect by written notice delivered
to the indemnified parties promptly after receiving the aforesaid notice from an
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified parties. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by the indemnifying party in connection with the
defense of such action, (ii) the indemnifying parties shall not have employed
counsel to have charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) such indemnified party or
parties shall have reasonably concluded that a conflict may arise between the
positions of the indemnifying party or parties in conducting the defense of any
such action or that there may be one or more legal defenses available to it or
them which are different from or additional to those available to one or all of
the indemnifying parties (in which case the indemnifying party or parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties, it being understood, however, that
the indemnifying party or parties shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(plus one firm of separate local counsel for each necessary jurisdiction, if
retained by the indemnified party or parties) at any time for all such
indemnified parties. An indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld. The
indemnifying party agrees that it shall be liable for any settlement (including
all of the indemnified party's reasonable costs, including fees and expenses of
its counsel) of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent is for money damages only and
includes (i) an unconditional release of such indemnified party from all
liability on claims that are the subject
25
matter of such action, suit or proceeding 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 any indemnified party.
Any losses, claims, damages, liabilities, expenses or actions for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 or under Section 9 below shall be paid by the indemnifying party
to the indemnified party as such losses, claims, damages, liabilities or
expenses are incurred, but in all cases, no later than thirty (30) days of
invoice to the indemnifying party.
The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof including, without limitation, the
provisions of this Section 8 and Section 9 below and are fully informed
regarding said provisions. They further acknowledge that the provisions of this
Section 8 and Section 9 below fairly allocate the risks in light of the ability
of the parties to investigate the Company and its business in order to assure
that adequate disclosure is made in the Registration Statement, the preliminary
prospectus and Prospectus as required by the Act and the Exchange Act.
(e) Each of the Company and the Selling Shareholders acknowledges
that the statements set forth under the caption "Underwriting" in, and in the
last paragraph on the cover page of, the Prospectus constitute the only
information furnished in writing relating to an Underwriter by or on behalf of
any Underwriter expressly for use in the Registration Statement relating to the
Shares as originally filed or in any amendment thereof, any related preliminary
prospectus or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be.
9. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 8 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, each indemnifying party shall severally
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company or the Selling Shareholders any
contribution received by the Company or the Selling Shareholders from persons,
other than the Underwriters, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, officers of the Company who signed the
Registration Statement and directors of the Company) as incurred to which the
Company, the Selling Shareholders or one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company, the Selling Shareholders and the Underwriters from the
offering of the Shares or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 8 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company or the Selling Shareholders on the one hand
and the Underwriters, severally on the other, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant
26
equitable considerations. The relative benefits received by the Company or the
Selling Shareholders on the one hand and the Underwriters, severally on the
other, shall be deemed to be in the same proportion as the total proceeds from
the offering of the Shares (net of underwriting discounts and commissions but
before deducting expenses) received by the Company or the Selling Shareholders
bears to the underwriting discounts and commissions received by the Underwriters
respectively. The relative fault of the Company or the Selling Shareholders on
the one hand and of the Underwriters, severally on the other, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 9, (i) in no case shall any Underwriter be liable
or responsible for any amount in excess of the underwriting discounts and
commissions applicable to the Shares purchased by such Underwriter hereunder,
(ii) no Selling Shareholder shall be required to contribute any amount in excess
of the amount by which the total net proceeds received by it (computed without
deduction of any taxes on such amount) from the sale of the Option Shares owned
by such Selling Shareholder exceeds the amount of any damages which such Selling
Shareholder has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission, and (iii) 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. Further notwithstanding the provisions of
this Section 9 and the preceding sentence, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 9, (A) each director,
officer, employee and agent of an Underwriter and each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, (B) each director, officer, employee and agent of the Company and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Company, and (C) each director, officer, employee and agent
of a Selling Shareholder and each person, if any, who controls a Selling
Shareholder within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Selling
Shareholder, subject in each case to clauses (i) and (ii) of this Section 9. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 9 or otherwise. No party shall be liable for
contribution with
27
respect to any action or claim settled without its consent, provided that such
consent was not unreasonably withheld.
The Underwriters' obligations in this Section 9 to contribute are several
in proportion to their respective underwriting obligations and not joint. The
remedies provided for in this Section 9 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
10. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters to purchase and pay for the Firm Shares and the
Option Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Shareholders contained herein as of the date hereof, the Closing Date and any
Additional Closing Date, to the absence from any certificates, opinions, written
statements or letters furnished to you or to Underwriters' counsel pursuant to
this Section 10 of any misstatement or omission, to the timely performance by
the Company and the Selling Shareholders of their respective covenants and other
obligations hereunder and to each of the following additional conditions:
(a) The Registration Statement shall have become effective not later
than, if pricing pursuant to Rule 430A, 5:30 P.M., New York time on the date of
this Agreement, and if pricing pursuant to a pricing amendment, 12:00 P.M., New
York time on the date an amendment to the Registration Statement containing the
public offering price has been filed with the Commission, or at such later time
and date as shall have been consented to in writing by Xxxxxx Brothers Inc., if
the Company shall have elected to rely upon Rule 430A or Rule 434 of the
Regulations, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 5(a) hereof; and, at or prior to the
Closing Date no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been issued and no
proceedings for such purpose shall have been initiated or threatened by the
Commission; no order suspending the qualification or registration of the Shares
under the securities or Blue Sky laws of any jurisdiction shall be in effect and
no proceeding for such purpose shall be pending before or threatened or
contemplated by the authorities of any such jurisdiction; any request for
additional information on the part of the staff of the Commission or any such
authorities shall have been complied with to the satisfaction of the staff of
the Commission or such authorities and to the satisfaction of counsel to the
Underwriters; after the date hereof no amendment or supplement to the
Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to you and you did not reasonably object thereto;
and the NASD, upon review of the terms of the public offering of the Shares,
shall not have raised any objection to the fairness or reasonableness of the
underwriting terms and arrangements.
(b) The Company shall have furnished to you the opinion of Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the Company and, on matters of
Xxxxxxxx Islands law, the opinion of Xxxxxx X. Xxxxxx, Esq., a Xxxxxxxx Islands
counsel for the Company, both dated the Closing Date and the Additional Closing
Date, if applicable, addressed to the Underwriters and in form and substance
reasonably satisfactory to Stroock & Stroock & Xxxxx LLP, Underwriters' counsel,
to the effect set forth in Annex A hereto.
28
(c) The Company shall have furnished to you the opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Selling Shareholders, dated the
Closing Date and the Additional Closing Date, if applicable, addressed to the
Underwriters and in form and substance reasonably satisfactory to Stroock &
Stroock & Xxxxx LLP, Underwriters' counsel, to the effect set forth in Annex B
hereto.
(d) The Company shall have furnished to you the opinion of Boxall,
Cayman Islands counsel for the Company, dated the Closing Date and the
Additional Closing Date, if applicable, addressed to the Underwriters and in
form and substance reasonably satisfactory to Stroock & Stroock & Xxxxx LLP,
Underwriters' counsel, to the effect set forth in Annex C hereto.
(e) All corporate proceedings and other legal matters in connection
with this Agreement, the Selling Shareholder Agreements, the form of
Registration Statement, preliminary prospectus or Prospectus, and the
registration, authorization, issue, sale and delivery of the Shares as herein
contemplated shall be satisfactory in form and substance to you and to
Underwriters' counsel in your and your counsel's reasonable discretion. The
Underwriters shall have received from Stroock & Stroock & Xxxxx LLP,
Underwriters' counsel, a favorable opinion, dated the Closing Date (and the
Additional Closing Date, if applicable), with respect to the issuance and sale
of the Shares, the Registration Statement, the Prospectus and other related
matters as you may reasonably require, and the Company, the Subsidiaries and the
Selling Shareholders shall have furnished to Underwriters' counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon the matters referred to in this Section.
(f) At the Closing Date (and the Additional Closing Date, if
applicable) you shall have received a certificate of the Chief Executive Officer
and Chief Financial Officer of the Company, on behalf of the Company, dated the
Closing Date (and the Additional Closing Date, if applicable), to the effect
that (i) the condition set forth in subsection (a) of this Section 10 has been
satisfied, (ii) as of the date hereof and as of the Closing Date (and the
Additional Closing Date, if applicable) all the representations and warranties
of the Company set forth in this Agreement are accurate with the same force and
effect as if made on each of such dates, (iii) as of the Closing Date (and the
Additional Closing Date, if applicable) the agreements and obligations of the
Company to be performed hereunder on or prior thereto have been duly performed,
(iv) when the Registration Statement became effective and at all times
subsequent thereto up to the delivery of such certificate, the Registration
Statement and the Prospectus, and any amendments or supplements thereto,
contained the information required to be included therein by the Act and the
applicable rules and regulations of the Commission thereunder, and conformed to
the requirements of the Act and the applicable rules and regulations of the
Commission thereunder; the Registration Statement and the Prospectus, and any
amendments or supplements thereto, did not and do not include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
since the effective date of the Registration Statement, there has occurred no
event required to be set forth in an amended or supplemented Prospectus which
has not been so set forth; and (v) subsequent to the respective dates as of
which information is given in the Registration Statement and the Prospectus, the
Company and the Subsidiaries have not sustained any material loss or
interference with their respective business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor
29
dispute or any legal or governmental proceeding, and there has not been any
material adverse change, or any development involving a prospective material
adverse change, in the business, management, properties, operations, prospects,
condition (financial or otherwise), or results of operations of the Company and
the Subsidiaries taken as a whole, or any transaction that is material to the
Company and the Subsidiaries taken as a whole, except transactions entered into
in the ordinary course of business, or any obligation, direct or contingent,
that is material to the Company and the Subsidiaries, taken as a whole, incurred
by the Company or the Subsidiaries, except obligations incurred in the ordinary
course of business, or any change in the capital stock or outstanding
indebtedness of the Company or any of the Subsidiaries that is material to the
Company and the Subsidiaries, taken as a whole, or any dividend or distribution
of any kind declared, paid or made on the capital stock of the Company or any of
the Subsidiaries.
(g) Each Selling Shareholder (or one or more Attorneys-in-Fact on
behalf of such Selling Shareholder) shall have furnished to the Representatives
on the Additional Closing Date a certificate, signed by or on behalf of such
Selling Shareholder stating that the representations, warranties and agreements
of such Selling Shareholder are true and correct in all material respects and
that such Selling Shareholder has complied with all agreements contained herein
to be performed by such Selling Shareholder at or prior to the Additional
Closing Date.
(h) At the time that this Agreement is executed by the Company, the
Underwriters shall have received from each of Ernst & Young LLP and Deloitte &
Touche LLP a letter dated as of the date this Agreement is executed by the
Company in form and substance satisfactory to you (the "Original Letters"), and
on the Closing Date (and the Additional Closing Date, if any) the Underwriters
shall have received from each of such firms a letter dated the Closing Date (or
the Additional Closing Date, as the case may be) stating that, as of a specified
date not earlier than five (5) days prior to the Closing Date or the Additional
Closing Date, as the case may be, nothing has come to its attention to suggest
that the statements made in its Original Letter are not true and correct.
In addition, Xxxxxx Brothers Inc. shall have received from Deloitte &
Touche LLP a letter addressed to the Company and made available to you for the
use of the Underwriters stating that their review of the Company's system of
internal accounting controls, to the extent they deemed necessary in
establishing the scope of their examination of the Company's consolidated
financial statements as of March 31, 2001, did not disclose any weaknesses in
internal controls that they considered to be substantial or material weaknesses.
In the event that the letters to be delivered referred to above set forth
note any changes, decreases or increases in the financial information included
in the Registration Statement and the Prospectus, it shall be a further
condition to the obligations of the Underwriters hereunder that Xxxxxx Brothers
Inc. shall have determined in its sole judgment, that such changes, decreases or
increases as are set forth in such letters do not reflect a material adverse
change in the stockholders' equity or long-term debt of the Company as compared
with the amounts shown in the latest balance sheet of the Company included in
the Prospectus, or a material adverse change in total net revenues or net income
of the Company, in each case as compared with the corresponding period of the
prior year.
30
(i) Subsequent to the date this Agreement is executed or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (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 (h) of this Section
10 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or other), earnings, business or properties
of the Company and the Subsidiaries, whether or not arising in the ordinary
course of business, the effect of which, in any case referred to in clause (i)
or (ii) above, is, in Xxxxxx Brothers Inc.'s sole judgment, material and adverse
and that makes it impracticable or inadvisable to proceed with the offering or
delivery of the Shares as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(j) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there shall not have been a
material adverse change, or any development involving a prospective material
adverse change, in the general affairs, business, prospects, properties,
management, key personnel, condition (financial or other) or results of
operations of the Company and the Subsidiaries, whether or not arising from
transactions in the ordinary course of business, in each case other than as set
forth in the Registration Statement and the Prospectus (or, in the case of a
prospective change, other than as contemplated by the Registration Statement and
the Prospectus), and (ii) the Company shall not have sustained any material loss
or interference with its business or properties from fire, explosion, flood,
hurricane or other casualty or calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental action,
order or decree, which is not set forth in the Registration Statement and the
Prospectus, if in your reasonable judgment any such development makes it
impracticable or inadvisable to consummate the sale and delivery of the Shares
at the public offering price.
(k) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of its
officers or directors in their capacities as such, before or by any federal,
state, or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, which litigation or proceeding an
unfavorable ruling, decision or finding would reasonably be expected to have a
Material Adverse Effect.
(l) At the time of execution of this Agreement, the Company shall
have furnished to you a letter addressed to you from each officer and director
of the Company and each shareholder or other person heretofore designated by
you, in the form of Exhibit A hereto.
(m) The Shares shall be qualified for sale in such jurisdictions as
you shall have requested subject to the terms hereof, each such qualification
shall be in effect.
(n) The Shares shall have been listed on the New York Stock
Exchange, subject to official notice of issuance.
(o) You shall not have advised the Company that the Registration
Statement, the preliminary prospectus or the Prospectus, or any amendment or any
supplement thereto,
31
contains an untrue statement of fact which, in your judgment, is material, or
omits to state a fact which, in your judgment, is material and is required to be
stated therein or necessary to make the statements therein not misleading and,
if you have so advised the Company, the Company shall not have cured such untrue
statement of fact or omission of such statement of fact.
(p) The Company shall have furnished to you such certificates, in
addition to those specifically mentioned herein, as you may have reasonably
requested (i) as to the accuracy and completeness (to the extent required under
applicable law) at the Closing Date and the Additional Closing Date, if
applicable, of any statement in the Registration Statement or the Prospectus,
(ii) as to the accuracy at the Closing Date and the Additional Closing Date, if
applicable, of the representations, warranties and covenants of the Company
herein, (iii) as to the performance by the Company of its obligations hereunder,
or (iv) as to the fulfillment of the conditions concurrent and precedent to your
obligations hereunder.
(q) Prior to the Closing Date and the Additional Closing Date, if
applicable, the Company and the Selling Shareholders shall have furnished to the
Underwriters such further information and documents as you may reasonably
request.
If any of the conditions specified in this Section 10 shall not have
been fulfilled in all respects when and as required to be satisfied, or if any
of the opinions and certificates mentioned above or elsewhere in this Agreement
shall not be reasonably satisfactory in form and substance to you and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be terminated at, or at any time on or prior to, the Closing Date
(and Additional Closing Date, if applicable) by Xxxxxx Brothers Inc. Notice of
such termination shall be given to the Company and the Selling Shareholders
promptly in writing or by telephone confirmed in writing.
11. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligations to purchase Firm Shares or Option Shares hereunder, and if the Firm
Shares or Option Shares with respect to which such default relates do not (after
giving effect to arrangements, if any, made by you pursuant to subsection (b)
below) exceed in the aggregate 10% of the number of Firm Shares or Option
Shares, the Shares to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to the respective proportions which
the numbers of Firm Shares set forth opposite their respective names in Schedule
1 hereto bear to the aggregate number of Firm Shares set forth opposite the
names of the non-defaulting Underwriters; provided, however, that each
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of the Shares which it agreed to purchase on the Closing Date
pursuant to the terms of Section 3.
(b) In the event that such default relates to more than 10% of the
Firm Shares or Option Shares, as the case may be, you may in your discretion
arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Option Shares, as the case may be, to which such default relates on
the terms contained herein. In the event that within 5 calendar days after such
a
32
default you do not arrange for the purchase of the Firm Shares or Option Shares,
as the case may be, to which such default relates as provided in this Section
11, this Agreement (or, in the case of a default with respect to the Option
Shares, the obligations of the Underwriters to purchase and of Selling
Shareholders to sell the Option Shares) shall thereupon terminate, without
liability on the part of the Company or the Selling Shareholders, with respect
thereto (except in each case as provided in Section 6, 8(a) and 9 hereof), or
the Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
Underwriters and the Company for damages occasioned by its or their default
hereunder. Notwithstanding the foregoing, if any default occurs with respect to
the Additional Closing, this Agreement will not terminate with respect to the
Firm Shares purchased prior to such time.
(c) In the event that the Firm Shares or Option Shares to which the
default relates are to be purchased by the non-defaulting Underwriters, or are
to be purchased by another party or parties as aforesaid, you or the Company or
the Selling Shareholders, as the case may be, shall have the right to postpone
the Closing Date or Additional Closing Date, as the case may be, for a period
not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 11 with like effect as if it had originally
been a party to this Agreement with respect to such Firm Shares and Option
Shares.
12. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company and the
Selling Shareholders contained in this Agreement, including the agreements
contained in Section 5, Section 6, Section 7, the indemnity agreements contained
in Section 8 and the contribution agreements contained in Section 9, shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of any Underwriter or any controlling person thereof, by or
on behalf of the Company, any of its officers, directors or employees or any
controlling person thereof or any Selling Shareholder and shall survive delivery
and acceptance of, and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and Section 2 and the agreements
contained in Sections 6, 8 and 9 and 13(d) hereof also shall survive the
termination of this Agreement, including termination pursuant to Section 11 or
13 hereof. A successor to any Underwriter, or to the Company or any Selling
Shareholder, shall be entitled to the benefits of the indemnity, contribution
and reimbursement agreements contained in Section 8 and Section 9 hereof.
13. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later of when (i)
you and the Company shall have received notification of the effectiveness of the
Registration Statement or (ii) the execution of this Agreement. If either the
public offering price or the purchase price per Share has not been agreed upon
prior to 5:00 P.M., New York time, on the fifth full business day after the
Registration Statement shall have become effective, this Agreement shall
thereupon terminate without liability to the Company, the Selling Shareholders
or the Underwriters except
33
as herein expressly provided. Until this Agreement becomes effective as
aforesaid, it may be terminated by the Company by notifying the Representatives
or by the Representatives notifying the Company. Notwithstanding the foregoing,
the provisions of this Section 13 and of Sections 1, 2, 6, 8 and 9 hereof shall
at all times be in full force and effect.
(b) Xxxxxx Brothers Inc. shall have the right to terminate this
Agreement at any time on or prior to the Closing Date, or the obligations of the
Underwriters to purchase the Option Shares at any time on or prior to the
Additional Closing Date, as the case may be (but in any event prior to delivery
of and payment for the Shares), if (A) any domestic or international event or
act or occurrence has materially disrupted, or in your opinion will in the
immediate future materially disrupt, the market for the Company's securities or
securities in general; or (B) if trading on the New York or American Stock
Exchanges or Nasdaq National Market shall have been suspended, or limited,
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the New York Stock
Exchange or the Nasdaq National Market by the New York Stock Exchange or the
Nasdaq National Market or by order of the Commission or any other governmental
authority having jurisdiction; or (C) if a banking moratorium has been declared
by a state or federal authority or if any new restriction materially adversely
affecting the distribution of the Firm Shares or the Option Shares, as the case
may be, shall have become effective; or (D)(i) there shall have occurred any
outbreak or escalation of hostilities or there is an outbreak or escalation of
national or international hostilities or there is a declaration by the United
States of a national emergency or war or (ii) if there has been any crisis or
calamity or any change or development in United States' or international
political, financial or economic conditions, if the effect of any such event in
(D)(i) or (D)(ii), in the sole judgment of Xxxxxx Brothers Inc. makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Option Shares, as the case may be, on the terms
contemplated by the Prospectus (exclusive of any supplement thereto) or to
enforce contracts for the sale of securities; or (E) in the sole judgment of
Xxxxxx Brothers Inc. there shall have occurred any Material Adverse Effect or
(F) the Company shall have sustained a loss by strike, fire, flood, earthquake,
accident or other calamity of such character as in the sole judgment of Xxxxxx
Brothers Inc. may interfere materially with the conduct of the business and
operations of the Company regardless of whether or not such loss shall have been
insured. Any termination pursuant to this Section shall be without liability on
the part of (a) the Company to any Underwriter, except that the Company shall be
obligated to reimburse the expenses of Xxxxxx Brothers Inc. and the underwriters
to the extent required pursuant to Sections 6, 8 and 9 hereof, (b) any
Underwriter to the Company and/or the Selling Shareholders and (c) any party
hereto to any other party except that the provisions of Sections 6, 8 and 9
shall at all times be effective and shall survive such termination.
(c) Any notice of termination pursuant to this Section 13 shall be
by telephone or facsimile and confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 13(a) hereof or (ii) Section 11(b) or 13(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by
34
you, reimburse the Underwriters for all out-of-pocket expenses (including but
not limited to the fees and expenses of their counsel), incurred by the
Underwriters in connection herewith.
14. Notices. Any notice or notification in any form to be given hereunder
shall be in writing and shall be delivered in person or sent by telephone or
facsimile transmission (but in the case of a notification by telephone, with
subsequent confirmation by letter or facsimile transmission).
Any notice or notification to you shall be addressed to:
Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Vice President
ABN AMRO Rothschild LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Managing Director
With a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
Any notice or notification to the Company shall be addressed to the
Company at:
General Maritime Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Any notice or notification to any Selling Shareholder shall be
addressed to such Selling Shareholder in care of the Company at:
35
General Maritime Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: _________________, Esq.
Any notice or notification shall (subject to confirmation when
required) take effect at the time of receipt.
15. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company, the Selling Shareholders
and the controlling persons, directors, officers, employees and agents referred
to in Section 8 and 9, and their respective successors and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
Notwithstanding the foregoing, this Agreement and the terms and provisions
hereof are, unless otherwise specified herein, for the sole benefit of only
those persons, except that (a) the representations, warranties, indemnities and
agreements of the Company and the Selling Shareholders contained in this
Agreement shall also be deemed to be for the benefit of the directors, officers,
employees, and agents of each Underwriter and each person, if any, who controls
such Underwriter within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act and (b) the indemnity agreement of the Underwriters contained
in Section 8 hereof shall be deemed to be for the benefit of the directors,
officers, employees, and agents of the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act.
16. Consent to Jurisdiction. Any legal suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby
("Related Proceedings") may be instituted in the federal courts of the United
States of America located in the City and County of New York or the courts of
the State of New York in each case located in the City and County of New York
(collectively, the "Specified Courts"), and each party irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a "Related Judgment"), as to which
such jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such
party's address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and
unconditionally waive and agree
36
not to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient forum.
17. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
contracts made and to be wholly performed within the State of New York. This
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart, the executed counterparts shall together constitute a
single instrument. The descriptive headings in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof.
If any provision or portion of any provision of the Agreement, or the
application of any such provision or any portion thereof to any party or
circumstances, shall be held invalid or unenforceable, the remaining portion of
such provision and the remaining provisions of this agreement, and the
application of such provision or portion of such provision as is held invalid or
unenforceable to any parties or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and such remaining
portion of such provision and the remaining provisions of this Agreement shall
continue to be valid and in full force and effect.
If the foregoing is in accordance with the Underwriters' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholders and the Underwriters in accordance with its terms.
37
Very truly yours,
GENERAL MARITIME CORPORATION
By:____________________________________
Name:
Title:
THE SELLING SHAREHOLDERS
By:____________________________________
Name:
Title:
As Attorney-in-Fact acting on behalf
of the Selling Shareholders Named in
Schedule 2 hereto
38
The foregoing Underwriting Agreement is hereby confirmed and accepted as
of the date first above written.
XXXXXX BROTHERS INC.
By: Xxxxxx Brothers, Inc.
Acting on its own behalf and as
one of the Representatives of the several
Underwriters referred to in the
foregoing Agreement
By:___________________________
Name:
Title:
ABN AMRO Rothschild LLC
By: ABN AMRO Rothschild LLC
Acting on its own behalf and as
one of the Representatives of the several
Underwriters referred to in the
foregoing Agreement
By:___________________________
Name:
Title:
XXXXXXXXX & COMPANY, INC.
By: Xxxxxxxxx & Company, Inc.
Acting on its own behalf and as
one of the Representatives of the several
Underwriters referred to in the
foregoing Agreement
By:___________________________
Name:
Title:
39
SCHEDULES
Schedule 1 - Underwriters
Schedule 2 - Selling Shareholders
EXHIBITS
Exhibit A - Form of Lock-Up Agreement
ANNEXES
Annex A - Legal Opinion of Xxxxxx Xxxxx
Annex B - Legal Opinion of ____________
Annex C - Legal Opinion of ____________
40
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated May __, 2001
Number of Firm
Shares to be
Purchased from
the Company
-----------
Name
Xxxxxx Brothers Inc........
ABN AMRO Rothschild LLC....
Xxxxxxxxx & Company, Inc.
Total......................
B-1
SCHEDULE 2
SELLING SHAREHOLDERS
[To be provided]
B-2
EXHIBIT A
LOCK-UP AGREEMENT
May __, 2001
Xxxxxx Brothers Inc.
ABN AMRO Rothschild LLC
Xxxxxxxxx & Company, Inc.
As Representatives of the Several
Underwriters Named on Schedule I
to the Underwriting Agreement
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: General Maritime Ship Holdings Ltd.
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement") among General Maritime
Ship Holdings Ltd., a Xxxxxxxx Islands corporation (to be renamed General
Maritime Corporation on or about the Closing Date, the "Company"), and Xxxxxx
Brothers Inc. (as joint lead manager), ABN AMRO Rothschild LLC (as joint lead
manager), and Xxxxxxxxx & Company, Inc., as representatives of the several
underwriters named therein (the "Underwriters"), relating to an underwritten
public offering of common stock, par value $0.01 per share (the "Common Stock"),
of the Company. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Underwriting Agreement.
To induce you to enter into the Underwriting Agreement, subject to any rights of
the undersigned in Section 5 of the Registration Rights Agreement (the
"Registration Rights Agreement") among the undersigned, the Company and the
other parties thereto in which the undersigned may be entitled to sell its
Registrable Securities (as defined in the Registration Rights Agreement) by
means of the overallotment option in the Company's initial public offering, the
undersigned agrees that the undersigned will not, directly or indirectly, (1)
offer for sale, contract to sell, sell, pledge or otherwise dispose of (or enter
into any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any shares
of Common Stock or securities convertible into, exercisable or exchangeable for,
Common Stock or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of shares of Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled
B-3
by delivery of Common Stock or other securities, in cash or otherwise, in each
case for a period of 180 days from the date of the Prospectus (such period, the
"Lock-Up Period"), without the prior written consent of Xxxxxx Brothers Inc.,
who shall consult with ABN AMRO Rothschild LLC before granting or withholding
such consent; provided, that the foregoing restrictions shall not apply to (i)
any gift of Common Stock by the undersigned to a donee, (ii) any transfer of
Common Stock by the undersigned to a partner, member or stockholder of the
undersigned, if the undersigned is a partnership, limited liability company or
corporation respectively or (iii) any transfer of Common Stock in accordance
with the Plan of Recapitalization (as defined below) by the undersigned to any
other person or entity that has received Recapitalization Shares (as defined
below) or the Company; provided that in the case of each of (i) and (ii), the
transferee agrees in writing for the benefit of the Underwriters to be bound by
the same restrictions with respect to such shares of Common Stock, and in the
case of (iii) the transferee has entered into a Lock-Up Agreement in form and
content substantially similar to this Agreement prior to the date on which the
Registration Statement is declared effective or is the Company. For purposes of
this Agreement (A) "Plan of Recapitalization" means that certain Plan of
Recapitalization filed as Exhibit 2.1 to the Registration Statement and (B)
"Recapitalization Shares" shall mean shares of Common Stock issued in connection
with the Company's recapitalization as set forth in the Plan of
Recapitalization.
In addition to the foregoing, during the Lock-Up Period, the undersigned agrees
that the undersigned will not, directly or indirectly, make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock without the prior written consent of Xxxxxx Brothers Inc., who
shall consult with ABN AMRO Rothschild LLC before granting or withholding such
consent.
In addition to the foregoing, during the Lock-Up Period, in the event that
Xxxxxx Brothers Inc. (after consulting with ABN AMRO Rothschild LLC) consents
to the sale or other disposition by the undersigned of Recapitalization
Shares, Xxxxxx Brothers Inc. shall be deemed to have consented to the sale or
other disposition by each other person or entity that has received
Recapitalization Shares of a number of Recapitalization Shares representing
the same proportion of Recapitalization Shares initially issued to such other
person or entity as the number of Recapitalization Shares sold or disposed of
by the undersigned bears to the Recapitalization Shares initially issued to
the undersigned.
Any shares of Common Stock received upon exercise of options or warrants granted
to the undersigned will also be subject to this Agreement. Any securities
acquired by the undersigned in the open market will not be subject to this
Agreement.
If for any reason the Underwriting Agreement is terminated before the Closing
Date, this Agreement shall likewise be terminated. This Agreement shall lapse
and become null and void if the Closing Date shall not have occurred on or
before July 15, 2001.
B-4
Very truly yours,
_______________________________________ By:________________________________
Legal name of Stockholder as it appears Name:
on the Corporate Records of the Company Title:
B-5
ANNEX A
X-0
XXXXX X
X-0
XXXXX X
X-0
