EXHIBIT 1.1
750,000 Shares
▇▇▇▇▇ ▇▇▇▇ LASALLE INCORPORATED
Common Stock, $0.01 par value per share
Underwriting Agreement
dated April 1, 1999
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
Table of Contents
Section Page
Section 1. Representations and Warranties of the Company and
the Selling Shareholders.............................................................2
A. Representations and Warranties of the Company.................................2
(a) Compliance with Registration Requirements..............................2
(b) Offering Materials Furnished to Underwriter............................2
(c) Distribution of Offering Material By the Company.......................2
(d) The Underwriting Agreement.............................................3
(e) No Applicable Registration or Other Similar Rights.....................3
(f) No Material Adverse Change.............................................3
(g) Independent Accountants................................................3
(h) Preparation of the Financial Statements................................3
(i) Incorporation and Good Standing of the Company and its
Subsidiaries...........................................................4
(j) Capitalization and Other Capital Stock Matters.........................4
(k) Stock Exchange Listing.................................................4
(l) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required...................................5
(m) No Material Actions or Proceedings.....................................5
(n) Intellectual Property Rights...........................................5
(o) All Necessary Permits, etc.............................................6
(p) Title to Properties....................................................6
(q) Tax Law Compliance.....................................................6
(r) Company Not an "Investment Company"....................................6
(s) Insurance..............................................................6
(t) No Price Stabilization or Manipulation.................................7
(u) Related Party Transactions.............................................7
(v) No Unlawful Contributions or Other Payments............................7
(w) Exchange Act Compliance................................................7
(x) Company's Accounting System............................................7
(y) Compliance with Environmental Laws.....................................7
(z) Periodic Review of Costs of Environmental Compliance...................8
(aa) ERISA Compliance.......................................................8
B. Representations and Warranties of the Selling Shareholders....................9
(a) The Underwriting Agreement.............................................9
(b) The Custody Agreement and Power of Attorney............................9
(c) Title to Common Shares to be Sold; All Authorizations Obtained.........9
(d) Delivery of the Common Shares to be Sold...............................9
(e) Non-Contravention; No Further Authorizations or Approvals
Required..............................................................10
(f) No Registration or Other Similar Rights...............................10
(g) No Further Consents, etc..............................................10
(h) Disclosure Made by Such Selling Shareholder in the Prospectus.........10
(i) No Price Stabilization or Manipulation................................11
(j) Confirmation of Company Representations and Warranties................11
Section 2. Purchase, Sale and Delivery of the Common Shares................................11
(a) The Common Shares.....................................................11
(b) The Closing Date......................................................11
(c) Public Offering of the Common Shares..................................11
(d) Payment for the Common Shares.........................................12
(e) Delivery of the Common Shares.........................................12
(f) Delivery of Prospectus to the Underwriter.............................12
Section 3. Additional Covenants of the Company and the Selling Shareholders................12
A. Covenants of the Company.....................................................12
(a) Underwriter's Review of Proposed Amendments and Supplements...........12
(b) Securities Act Compliance.............................................13
(c) Amendments and Supplements to the Prospectus and Other
Securities Act Matters................................................13
(d) Copies of any Amendments and Supplements to the Prospectus............13
(e) Blue Sky Compliance...................................................13
(f) Transfer Agent........................................................14
(g) Earnings Statement....................................................14
(h) Periodic Reporting Obligations........................................14
(i) Future Reports to the Underwriter.....................................14
(j) Exchange Act Compliance...............................................14
B. Covenants of the Selling Shareholders........................................14
(a) Agreement Not to Offer or Sell Additional Securities..................14
(b) Delivery of Forms W-8 and W-9.........................................15
Section 4. Payment of Expenses.............................................................15
Section 5. Conditions of the Obligations of the Underwriter................................15
(a) Accountants' Comfort Letter...........................................15
(b) Compliance with Registration Requirements; No Stop Order; No
Objection from NASD...................................................15
(c) No Material Adverse Change or Ratings Agency Change...................16
(d) Opinion of Counsel for the Company....................................16
(e) Opinion of Counsel for the Underwriter................................16
(f) Officers' Certificate.................................................16
(g) Bring-down Comfort Letter.............................................17
(h) Opinion of Counsel for the Selling Shareholders.......................17
(i) Selling Shareholders' Certificate.....................................17
(j) Selling Shareholders' Documents.......................................17
(k) Additional Documents..................................................17
Section 6. Reimbursement of Underwriter's Expenses.........................................17
Section 7. Effectiveness of this Agreement.................................................18
Section 8. Indemnification.................................................................18
(a) Indemnification of the Underwriter by the Company.....................18
(b) Indemnification of the Underwriter by the Selling Shareholders........19
(c) Indemnification of the Company, its Directors and Officers............20
(d) Notifications and Other Indemnification Procedures....................21
(e) Settlements...........................................................21
Section 9. Contribution....................................................................22
Section 10. Reserved.......................................................................23
Section 11. Termination of this Agreement..................................................23
Section 12. Representations and Indemnities to Survive Delivery............................23
Section 13. Notices........................................................................24
Section 14. Successors.....................................................................25
Section 15. Partial Unenforceability.......................................................25
Section 16. (a) Governing Law Provisions..............................................25
(b) Consent to Jurisdiction...............................................25
Section 17. Failure of One or More of the Selling Shareholders to Sell and Deliver
Common Shares...............................................................25
Section 18. General Provisions.............................................................25
750,000 SHARES
▇▇▇▇▇ ▇▇▇▇ LASALLE INCORPORATED
COMMON STOCK, $0.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
April 1, 1999
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introductory. The shareholders of ▇▇▇▇▇ Lang LaSalle
Incorporated, a Maryland corporation (the "Company"), named in Schedule B
(collectively, the "Selling Shareholders") severally propose to sell to
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC (the "Underwriter") an aggregate of
750,000 shares (the "Common Shares") of Common Stock, par value $0.01 per
share (the "Common Stock"), of the Company.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-70969), which contains a form of prospectus to be used in
connection with the public offering and sale of the Common Shares. Such
registration statement, as amended, including the financial statements,
exhibits and schedules thereto, in the form in which it was declared
effective by the Commission under the Securities Act of 1933 and the rules
and regulations promulgated thereunder (collectively, the "Securities
Act"), including all documents incorporated or deemed to be incorporated by
reference therein and including any information deemed to be a part thereof
at the time of effectiveness pursuant to Rule 430A or Rule 434 under the
Securities Act or the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder (collectively, the "Exchange Act"), is
called the "Registration Statement." Any registration statement filed by
the Company pursuant to Rule 462(b) under the Securities Act is 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. Such
prospectus, in the form first used by the Underwriter to confirm sales of
the Common Shares, is called the "Prospectus." All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration
Statement, a preliminary prospectus or the Prospectus, 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 ("▇▇▇▇▇"). All references in this Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information which is
or is deemed to be incorporated by reference in the Registration Statement
or the Prospectus, as the case may be; and all references in this Agreement
to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document
under the Exchange Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be.
The Company and each of the Selling Shareholders hereby
confirm their respective agreements with the Underwriter as follows:
Section 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
THE SELLING SHAREHOLDERS.
A. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company hereby represents, warrants and covenants to the
Underwriter as follows:
(a) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Registration Statement and any Rule 462(b) Registration
Statement have been declared effective by the Commission
under the Securities Act. The Company has complied to the
Commission's satisfaction with all requests of the
Commission for additional or supplemental information. No
stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement is in
effect and no proceedings for such purpose have been
instituted or are pending or, to the best knowledge of the
Company, are contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus when
filed complied in all material respects with the Securities
Act and, if filed by electronic transmission pursuant to
▇▇▇▇▇ (except as may be permitted by Regulation S-T under
the Securities Act), was identical to the copy thereof
delivered to the Underwriter for use in connection with the
offer and sale of the Common Shares. Each of the
Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto, at the
time it became effective and at all subsequent times,
complied and will comply in all material respects with the
Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as
amended or supplemented, as of its date and at all
subsequent times, did not and will not contain any untrue
statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading. The representations and warranties set forth
in the two immediately preceding sentences do not apply to
statements in or omissions from the Registration Statement,
any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and
in conformity with information relating to the Underwriter
furnished to the Company in writing by the Underwriter
expressly for use therein. There are no contracts or other
documents required to be described in the Prospectus or to
be filed as exhibits to the Registration Statement which
have not been described or filed as required.
(b) OFFERING MATERIALS FURNISHED TO UNDERWRITER. The
Company has delivered to the Underwriter one complete
manually signed copy of the Registration Statement and of
each consent and certificate of experts filed as a part
thereof, and conformed copies of the Registration Statement
(without exhibits) and the Prospectus, as amended or
supplemented, in such quantities and at such places as the
Underwriter has reasonably requested.
(c) DISTRIBUTION OF OFFERING MATERIAL BY THE COMPANY.
The Company has not distributed and will not distribute,
prior to the later of the Closing Date (as defined below)
and the completion of the Underwriter's distribution of the
Common Shares, any offering material in connection with the
offering and sale of the Common Shares other than a
preliminary prospectus, the Prospectus or the Registration
Statement.
(d) THE UNDERWRITING AGREEMENT. This Agreement has
been duly authorized, executed and delivered by, and is a
valid and binding agreement of, the Company, enforceable in
accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(e) NO APPLICABLE REGISTRATION OR OTHER SIMILAR
RIGHTS. There are no persons with registration or other
similar rights to have any equity or debt securities
registered for sale under the Registration Statement or
included in the offering contemplated by this Agreement,
other than the Selling Shareholders with respect to the
Common Shares included in the Registration Statement, except
for that certain Registration Rights Agreement, dated April
22, 1997, among the Company DEL-LPL Limited Partnership
("DEL-LPL"), DEL-LPAML Limited Partnership ("DEL-LPAML" and,
together with DEL-LPL, the "Employee Partnerships"),
DSA-LSPL, Inc., DSA-LSAM, Inc. and ▇▇▇▇▇▇▇▇▇ Holdings, LLC.
(f) NO MATERIAL ADVERSE CHANGE. Except as otherwise
disclosed in the Prospectus, subsequent to the respective
dates as of which information is given in the Prospectus:
(i) there has been no material adverse change, or any
development that could reasonably be expected to result in a
material adverse change, in the condition, financial or
otherwise, or in the earnings, business, operations or
prospects, whether or not arising from transactions in the
ordinary course of business, of the Company and its
subsidiaries, considered as one entity (any such change is
called a "Material Adverse Change"); (ii) the Company and
its subsidiaries, considered as one entity, have not
incurred any material liability or obligation, indirect,
direct or contingent, not in the ordinary course of business
nor entered into any material transaction or agreement not
in the ordinary course of business; and (iii) there has been
no dividend or distribution of any kind declared, paid or
made by the Company or, except for dividends paid to the
Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or repurchase or redemption by
the Company or any of its subsidiaries of any class of
capital stock.
(g) INDEPENDENT ACCOUNTANTS. KPMG LLP (with respect
to ▇▇▇▇▇ ▇▇▇▇ LaSalle and The Compass Group), KPMG (with
respect to JLW Asia Holdings Limited and subsidiaries and
Lend Lease Property Management (Australia) Pty Limited),
Deloitte & Touche (with respect to ▇▇▇▇▇ Lang Wootton (the
English Partnership and Subsidiaries) and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
- Irish Practice), Ernst & Young (with respect to ▇▇▇▇▇ ▇▇▇▇
Wootton Scotland and JLW Australia Group), Coopers & ▇▇▇▇▇▇▇
(with respect to JLW Property Consultants Pte Ltd.) and
PricewaterhouseCoopers LLP (with respect to The Compass
Companies and The Yarmouth Group Property Management, Inc.),
who have expressed their opinion with respect to the
financial statements (which term as used in this Agreement
includes the related notes thereto) and supporting schedules
filed with the Commission as a part of the Registration
Statement and included in the Prospectus, are independent
public or certified public accountants as required by the
Securities Act and the Exchange Act.
(h) PREPARATION OF THE FINANCIAL STATEMENTS. The
financial statements filed with the Commission as a part of
the Registration Statement and included in the Prospectus
present fairly the consolidated financial position of the
Company and its subsidiaries as of and at the dates
indicated and the results of their operations and cash flows
for the periods specified. The supporting schedules included
in the Registration Statement present fairly the information
required to be stated therein. Such financial statements and
supporting schedules have been prepared in conformity with
generally accepted accounting principles as applied in the
United States applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the
related notes thereto. No other financial statements or
supporting schedules are required to be included in the
Registration Statement. There is no financial data set forth
in the Prospectus.
(i) INCORPORATION AND GOOD STANDING OF THE COMPANY
AND ITS SUBSIDIARIES. Each of the Company and each
"significant subsidiary" (as such term is defined in Rule
1-02 of Regulation S-X) has been duly incorporated or
organized and is validly existing as a corporation or
partnership, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation or
organization and has all power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and, in the case of the Company,
to enter into and perform its obligations under this
Agreement. Each of the Company and each significant
subsidiary is duly qualified to transact business and is in
good standing in each other jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or
in the aggregate, result in a Material Adverse Change. All
of the issued and outstanding capital stock of each
subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or
claim. The Company does not own or control, directly or
indirectly, any corporation, association or other entity
other than the subsidiaries listed in Exhibit 21.1 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
(j) CAPITALIZATION AND OTHER CAPITAL STOCK MATTERS.
The authorized, issued and outstanding capital stock of the
Company is as set forth in the Registration Statement under
the caption "Consolidated Balance Sheets - Liabilities and
Stockholders' Equity" (other than for subsequent issuances,
if any, pursuant to employee benefit plans described in the
Registration Statement or upon exercise of outstanding
options described in the Registration Statement). The Common
Stock (including the Common Shares) conforms in all material
respects to the description thereof contained in the
Prospectus. All of the issued and outstanding shares of
Common Stock (including the shares of Common Stock owned by
Selling Shareholders) have been duly authorized and validly
issued, are fully paid and nonassessable and have been
issued in compliance with federal and state securities laws.
None of the outstanding shares of Common Stock were issued
in violation of any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase
securities of the Company. There are no authorized or
outstanding options, warrants, preemptive rights, rights of
first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable
for, any capital stock of the Company or any of its
subsidiaries other than those accurately described in the
Prospectus and other than the options for 447,500 shares of
Common Stock issued in connection with the acquisition of
the ▇▇▇▇▇ Lang Wootton Businesses.
(k) STOCK EXCHANGE LISTING. The Common Stock
(including the Common Shares) is registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the
"Exchange Act") and is listed on the New York Stock Exchange
(the "NYSE"), and the Company has taken no action designed
to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or
delisting the Common Stock from the NYSE, nor has the
Company received any notification that the Commission or the
NYSE is contemplating terminating such registration or
listing.
(l) NON-CONTRAVENTION OF EXISTING INSTRUMENTS; NO
FURTHER AUTHORIZATIONS OR APPROVALS REQUIRED. Neither the
Company nor any of its subsidiaries is in violation of its
charter or by-laws or is in default (or, with the giving of
notice or lapse of time, would be in default) ("Default")
under any indenture, mortgage, loan or credit agreement,
note, contract, franchise, lease or other instrument to
which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its
subsidiaries is subject (each, an "Existing Instrument"),
except for such Defaults as would not, individually or in
the aggregate, result in a Material Adverse Change. The
Company's execution, delivery and performance of this
Agreement and consummation of the transactions contemplated
hereby and by the Prospectus (i) have been duly authorized
by all necessary corporate action and will not result in any
violation of the provisions of the charter or by-laws of the
Company or any subsidiary, (ii) will not conflict with or
constitute a breach of, or Default under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any
other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or
encumbrances as would not, individually or in the aggregate,
result in a Material Adverse Change and (iii) will not
result in any violation of any law, administrative
regulation or administrative or court decree applicable to
the Company or any subsidiary. No consent, approval,
authorization or other order of, or registration or filing
with, any court or other governmental or regulatory
authority or agency, is required for the Company's
execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by
the Prospectus, except such as have been obtained or made by
the Company and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws
and from the National Association of Securities Dealers,
Inc. (the "NASD").
(m) NO MATERIAL ACTIONS OR PROCEEDINGS. There are no
legal or governmental actions, suits or proceedings pending
or, to the best of the Company's knowledge, threatened (i)
against or affecting the Company or any of its subsidiaries,
(ii) which has as the subject thereof any officer or
director of, or property owned or leased by, the Company or
any of its subsidiaries or (iii) relating to environmental
or discrimination matters, where in any such case (A) there
is a reasonable possibility that such action, suit or
proceeding might be determined adversely to the Company or
such subsidiary and (B) any such action, suit or proceeding,
if so determined adversely, would reasonably be expected to
result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by this
Agreement. No material labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the
best of the Company's knowledge, is threatened or imminent.
(n) INTELLECTUAL PROPERTY RIGHTS. The Company and its
subsidiaries own or possess sufficient trademarks, trade
names, patent rights, copyrights, licenses, approvals, trade
secrets and other similar rights (collectively "Intellectual
Property Rights") reasonably necessary to conduct their
business in all material respects as now conducted; and the
expected expiration of any of such Intellectual Property
Rights would not result in a Material Adverse Change.
Neither the Company nor any of its subsidiaries has received
any notice of infringement or conflict with asserted
Intellectual Property Rights of others, which infringement
or conflict, if the subject of an unfavorable decision,
would result in a Material Adverse Change.
(o) ALL NECESSARY PERMITS, ETC. Except as otherwise
disclosed in the Prospectus, the Company and each subsidiary
possess such valid and current certificates, authorizations
or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary in all
material respects to conduct their respective businesses,
and neither the Company nor any subsidiary has received any
notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such
certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling
or finding, could result in a Material Adverse Change.
(p) TITLE TO PROPERTIES. The Company and each of its
subsidiaries has good and marketable title to all the
properties and assets reflected as owned in the financial
statements referred to in Section 1(A)(i) above, in each
case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects,
except such as would not cause a Material Adverse Change to
the Company as a whole. The real property, improvements,
equipment and personal property held under lease by the
Company or any subsidiary are held under valid and
enforceable leases, with such exceptions as are not material
and do not materially interfere with the use made or
proposed to be made of such real property, improvements,
equipment or personal property by the Company or such
subsidiary.
(q) TAX LAW COMPLIANCE. The Company and its
subsidiaries have in all material respects filed all
necessary federal, state and foreign income and franchise
tax returns or have properly requested extensions thereof
and have paid in all material respects all taxes required to
be paid by any of them and, if due and payable, any related
or similar assessment, fine or penalty levied against any of
them. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to
in Section 1(A)(i) above in respect of all federal, state
and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its
subsidiaries has not been finally determined.
(r) COMPANY NOT AN "INVESTMENT COMPANY". The Company
has been advised of the rules and requirements under the
Investment Company Act of 1940, as amended (the "Investment
Company Act"). The Company is not, and after receipt of
payment for the Common Shares will not be, an "investment
company" within the meaning of Investment Company Act and
will conduct its business in a manner so that it will not
become subject to the Investment Company Act.
(s) INSURANCE. Each of the Company and its
subsidiaries are insured by recognized, financially sound
and reputable institutions with policies in such amounts and
with such deductibles and covering such risks as are
generally deemed adequate and customary for their businesses
including, but not limited to, policies covering real and
personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes. The Company has no reason to
believe that it or any subsidiary will not be able (i) to
renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from
similar institutions as may be necessary or appropriate to
conduct its business as now conducted and at a cost that
would not result in a Material Adverse Change. Neither of
the Company nor any subsidiary has been denied any insurance
coverage which it has sought or for which it has applied.
(t) NO PRICE STABILIZATION OR MANIPULATION. The
Company has not taken and will not take, directly or
indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate
the sale or resale of the Common Shares.
(u) RELATED PARTY TRANSACTIONS. There are no business
relationships or related-party transactions involving the
Company or any subsidiary or any other person required to be
described in the Prospectus which have not been described as
required.
(v) NO UNLAWFUL CONTRIBUTIONS OR OTHER PAYMENTS. To
the best of the Company's knowledge, neither the Company nor
any of its subsidiaries nor any employee or agent of the
Company or any subsidiary, has made any contribution or
other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law or
of the character required to be disclosed in the Prospectus.
(w) EXCHANGE ACT COMPLIANCE. The documents
incorporated or deemed to be incorporated by reference in
the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act,
and, when read together with the other information in the
Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the First Closing
Date and the Second Closing Date, as the case may be, will
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 fact required to be stated therein or
necessary to make the statements therein, in the light of
the circumstances under which they were made, not
misleading.
(x) COMPANY'S ACCOUNTING SYSTEM. The Company
maintains a system of accounting controls sufficient to
provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity
with generally accepted accounting principles as applied in
the United States and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(y) COMPLIANCE WITH ENVIRONMENTAL LAWS. To the
Company's knowledge, except as would not, individually or in
the aggregate, result in a Material Adverse Change (i)
neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or
regulation relating to pollution or protection of human
health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum and petroleum products
(collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport
or handling of Materials of Environment Concern
(collectively, "Environmental Laws"), which violation
includes, but is not limited to, noncompliance with any
permits or other governmental authorizations required for
the operation of the business of the Company or its
subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has
the Company or any of its subsidiaries received any written
communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that the
Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause
of action filed with a court or governmental authority, no
investigation with respect to which the Company has received
written notice, and no written notice by any person or
entity alleging potential liability for investigatory costs,
cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries,
attorneys' fees or penalties arising out of, based on or
resulting from the presence, or release into the
environment, of any Material of Environmental Concern at any
location owned, leased or operated by the Company or any of
its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the best of the
Company's knowledge, threatened against the Company or any
of its subsidiaries or any person or entity whose liability
for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or
by operation of law; and (iii) to the best of the Company's
knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge,
presence or disposal of any Material of Environmental
Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of its
subsidiaries or against any person or entity whose liability
for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or
by operation of law.
(z) PERIODIC REVIEW OF COSTS OF ENVIRONMENTAL
COMPLIANCE. In the ordinary course of its business, the
Company conducts a periodic review of the effect of
Environmental Laws on the business, operations and
properties of the Company and its 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 or compliance with Environmental Laws or any
permit, license or approval, any related constraints on
operating activities and any potential liabilities to third
parties). On the basis of such review and the amount of its
established reserves, the Company believes that such
associated costs and liabilities would not, individually or
in the aggregate, result in a Material Adverse Change.
(aa) ERISA COMPLIANCE. The Company and its
subsidiaries and any "employee benefit plan" (as defined
under the Employee Retirement Income Security Act of 1974,
as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA"))
established or maintained by the Company, its subsidiaries
or their "ERISA Affiliates" (as defined below) are in
compliance in all material respects with ERISA. "ERISA
Affiliate" means, with respect to the Company or a
subsidiary, any member of any group of organizations
described in Sections 414(b),(c),(m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder (the "Code") of which
the Company or such subsidiary is a member. No "reportable
event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee
benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No "employee
benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such
"employee benefit plan" were terminated, would have any
"amount of unfunded benefit liabilities" (as defined under
ERISA). Neither the Company, its subsidiaries nor any of
their ERISA Affiliates has incurred or reasonably expects to
incur any liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any "employee benefit
plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code.
Each "employee benefit plan" established or maintained by
the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section
401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, which would cause the
loss of such qualification.
Any certificate signed by an officer of the Company
and delivered to the Underwriter or to counsel for the Underwriter
shall be deemed to be a representation and warranty by the Company
to the Underwriter as to the matters set forth therein.
B. REPRESENTATIONS AND WARRANTIES OF THE SELLING
SHAREHOLDERS. Each Selling Shareholder represents, warrants and
covenants to the Underwriter as follows:
(a) THE UNDERWRITING AGREEMENT. This Agreement has
been duly authorized, executed and delivered by or on behalf
of such Selling Shareholder and is a valid and binding
agreement of such Selling Shareholder, enforceable in
accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(b) THE CUSTODY AGREEMENT AND POWER OF ATTORNEY. Each
of the (i) Custody Agreement signed by such Selling
Shareholder and the entity identified as to each Selling
Shareholder on Schedule C attached hereto, as custodian (the
"Custodian"), relating to the deposit of the Common Shares
to be sold by such Selling Shareholder (the "Custody
Agreement") and (ii) Power of Attorney appointing certain
individuals named therein as such Selling Shareholder's
attorneys-in-fact (each, an "Attorney-in-Fact") to the
extent set forth therein relating to the transactions
contemplated hereby and by the Prospectus (the "Power of
Attorney"), of such Selling Shareholder has been duly
authorized, executed and delivered by such Selling
Shareholder and is a valid and binding agreement of such
Selling Shareholder, enforceable in accordance with its
terms, except as rights to indemnification thereunder may be
limited by applicable law and except as the enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting the rights and remedies of creditors or by
general equitable principles.
(c) TITLE TO COMMON SHARES TO BE SOLD; ALL
AUTHORIZATIONS OBTAINED. Such Selling Shareholder on the
Closing Date (as defined below) will have good and valid
title to all of the Common Shares which may be sold by such
Selling Shareholder pursuant to this Agreement on such date
and the legal right and power, and all authorizations and
approvals required by law, and for certain Selling
Shareholders, under its charter or by-laws or trust
agreement to enter into this Agreement and its Custody
Agreement and Power of Attorney, to sell, transfer and
deliver all of the Common Shares which may be sold by such
Selling Shareholder pursuant to this Agreement and to comply
with its other obligations hereunder and thereunder.
(d) DELIVERY OF THE COMMON SHARES TO BE SOLD.
Delivery of the Common Shares which are sold by such Selling
Shareholder pursuant to this Agreement will pass good and
valid title to such Common Shares, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or
other claim.
(e) NON-CONTRAVENTION; NO FURTHER AUTHORIZATIONS OR
APPROVALS REQUIRED. The execution and delivery by such
Selling Shareholder of, and the performance by such Selling
Shareholder of its obligations under, this Agreement, the
Custody Agreement and the Power of Attorney will not
contravene or conflict with, result in a breach of, or
constitute a Default under, or require the consent of any
other party to, the charter or by-laws, trust agreement or
other organizational documents of such Selling Shareholder
or any other agreement or instrument to which such Selling
Shareholder is a party or by which it is bound, including
any "lock-up agreement," or under which it is entitled to
any right or benefit, any provision of applicable law or any
judgment, order, decree or regulation applicable to such
Selling Shareholder of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Shareholder. No
consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental
authority or agency, is required for the consummation by
such Selling Shareholder of the transactions contemplated in
this Agreement, except such as have been obtained or made
and are in full force and effect under the Securities Act,
applicable state securities or blue sky laws and from the
NASD.
(f) NO REGISTRATION OR OTHER SIMILAR RIGHTS. Such
Selling Shareholder does not have any registration or other
similar rights to have any equity or debt securities
registered for sale by the Company under the Registration
Statement or included in the offering contemplated by this
Agreement, except for such rights as are described in the
Registration Rights Agreement filed as an Exhibit to the
Company's Registration Statement on Form S-3 (File No.
333-25741).
(g) NO FURTHER CONSENTS, ETC. Except for the (i)
exercise by such Selling Shareholder of certain registration
rights pursuant to the Registration Rights Agreement dated
as of April 22, 1997 (which registration rights have been
duly exercised pursuant thereto), (ii) consent of such
Selling Shareholder to the respective number of Common
Shares to be sold by all of the Selling Shareholders
pursuant to this Agreement and (iii) waiver by certain other
holders of Common Stock of certain registration rights
pursuant to such Registration Rights Agreement, no consent,
approval or waiver is required under any instrument or
agreement to which such Selling Shareholder is a party or by
which it is bound or under which it is entitled to any right
or benefit, in connection with the offering, sale or
purchase by the Underwriter of any of the Common Shares
which may be sold by such Selling Shareholder under this
Agreement or the consummation by such Selling Shareholder of
any of the other transactions contemplated hereby.
(h) DISCLOSURE MADE BY SUCH SELLING SHAREHOLDER IN
THE PROSPECTUS. All information furnished by or on behalf of
such Selling Shareholder in writing expressly for use in the
Registration Statement and Prospectus is, and on the Closing
Date will be, true, correct, and complete in all material
respects, and does not, and on the Closing Date will not,
contain any untrue statement of a material fact or omit to
state any material fact necessary to make such information
not misleading. The information provided by the Selling
Shareholders for inclusion in the Registration Statement and
Prospectus is limited to the information included under the
captions "Selling Shareholders," with the exception of the
information included in the six paragraphs following the
table and footnotes under such caption, and "Plan of
Distribution" (collectively referred to herein as the
"Selling Shareholders Information"). Such Selling
Shareholder confirms as accurate the number of shares of
Common Stock set forth opposite such Selling Shareholder's
name in the Prospectus under the caption "Selling
Shareholders" (both prior to and after giving effect to the
sale of the Common Shares).
(i) NO PRICE STABILIZATION OR MANIPULATION. Such
Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to or that might
be reasonably expected to cause or result in stabilization
or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Common Shares.
(j) CONFIRMATION OF COMPANY REPRESENTATIONS AND
WARRANTIES. Such Selling Shareholder has no reason to
believe that the representations and warranties of the
Company contained in Section 1(A) hereof are in all material
respects not true and correct, is familiar with the
Registration Statement and the Prospectus and has no
knowledge of any material fact, condition or information not
disclosed in the Registration Statement or the Prospectus
which has had or may have a Material Adverse Effect.
Any certificate signed by or on behalf of any Selling
Shareholder and delivered to the Underwriter or to counsel for the
Underwriter shall be deemed to be a representation and warranty by
such Selling Shareholder to the Underwriter as to the matters
covered thereby.
Section 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES.
(a) THE COMMON SHARES. The Selling Shareholders agree
to sell to the Underwriter the Common Shares upon the terms
set forth herein, each Selling Shareholder selling the
number of Common Shares set forth opposite such Selling
Shareholder's name on Schedule B. On the basis of the
representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set
forth, the Underwriter agrees to purchase from the Selling
Shareholders the respective number of Common Shares set
forth opposite its name on Schedule A. The purchase price
per Common Share to be paid by the Underwriter to the
Selling Shareholders shall be $29.125 per share.
(b) THE CLOSING DATE. Delivery of certificates for
the Common Shares to be purchased by the Underwriter and
payment therefor shall be made at the offices of the
Underwriter, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ (or such other place as may be agreed to by the
Company and the Underwriter) at 6:00 a.m. San Francisco
time, on April 7, 1999, or such other time and date not
later than 10:30 a.m. San Francisco time, on April 19, 1999,
as the Underwriter shall designate by notice to the Company
(the time and date of such closing are called the "Closing
Date"). The Selling Shareholders hereby acknowledge that
circumstances under which the Underwriter may provide notice
to postpone the Closing Date as originally scheduled
include, but are in no way limited to, any determination by
the Company, the Selling Shareholders or the Underwriter to
recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the
provisions of Section 10.
(c) PUBLIC OFFERING OF THE COMMON SHARES. The
Underwriter hereby advises the Company and the Selling
Shareholders that the Underwriter intends to offer for sale
to the public, as described in the Prospectus, the Common
Shares as soon after this Agreement has been executed and
the Registration Statement has been declared effective as
the Underwriter, in its sole judgment, has determined is
advisable and practicable.
(d) PAYMENT FOR THE COMMON SHARES. Payment for the
Common Shares to be sold by the Selling Shareholders shall
be made at the Closing Date by wire transfer of immediately
available funds to the order of the Custodian.
Each Selling Shareholder hereby agrees that
(i) it will pay all stock transfer taxes, stamp duties and
other similar taxes, if any, payable upon the sale or
delivery of the Common Shares to be sold by such Selling
Shareholder to the Underwriter, or otherwise in connection
with the performance of such Selling Shareholder's
obligations hereunder and (ii) the Custodian is authorized
to deduct for such payment any such amounts from the
proceeds to such Selling Shareholder hereunder and to hold
such amounts for the account of such Selling Shareholder
with the Custodian under the Custody Agreement.
(e) DELIVERY OF THE COMMON SHARES. The Selling
Shareholders shall deliver, or cause to be delivered, to the
Underwriter certificates for the Common Shares to be sold by
them at the Closing Date, against the irrevocable release of
a wire transfer of immediately available funds for the
amount of the purchase price therefor. The certificates for
the Common Shares shall be in definitive form and registered
in such names and denominations as the Underwriter shall
have requested at least two full business days prior to the
Closing Date and shall be made available for inspection on
the business day preceding the Closing Date at a location in
New York City as the Underwriter may designate. 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 Underwriter.
(f) DELIVERY OF PROSPECTUS TO THE UNDERWRITER. Not
later than 12:00 p.m. on the second business day following
the date the Common Shares are released by the Underwriter
for sale to the public, the Company shall deliver or cause
to be delivered copies of the Prospectus in such quantities
and at such places as the Underwriter shall request.
Section 3. ADDITIONAL COVENANTS OF THE COMPANY AND THE
SELLING SHAREHOLDERS.
A. COVENANTS OF THE COMPANY. The Company further covenants
and agrees with the Underwriter as follows:
(a) UNDERWRITER'S REVIEW OF PROPOSED AMENDMENTS AND
SUPPLEMENTS. During such period beginning on the date hereof
and ending on the later of the Closing Date or such date, as
in the opinion of counsel for the Underwriter, the
Prospectus is no longer required by law to be delivered in
connection with sales by an Underwriter or dealer (the
"Prospectus Delivery Period"), prior to amending or
supplementing the Registration Statement (including any
registration statement filed under Rule 462(b) under the
Securities Act) or the Prospectus (including any amendment
or supplement through incorporation by reference of any
report filed under the Exchange Act), the Company shall
furnish to the Underwriter for review a copy of each such
proposed amendment or supplement, and the Company shall not
file any such proposed amendment or supplement to which the
Underwriter reasonably objects.
(b) SECURITIES ACT COMPLIANCE. After the date of this
Agreement, the Company shall promptly advise the Underwriter
in writing (i) of the receipt of any comments of, or
requests for additional or supplemental information from,
the Commission, (ii) of the time and date of any filing of
any post-effective amendment to the Registration Statement
or any amendment or supplement to any preliminary prospectus
or the Prospectus, (iii) of the time and date that any
post-effective amendment to the Registration Statement
becomes effective and (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 any order preventing or suspending the use of
any preliminary prospectus or the Prospectus, or of any
proceedings to remove, suspend or terminate from listing or
quotation the Common Stock from any securities exchange upon
which the Common Stock is listed for trading or included or
designated for quotation, or of the threatening or
initiation of any proceedings for any of such purposes. If
the Commission shall enter any such stop order at any time,
the Company will use its best efforts to obtain the lifting
of such order at the earliest possible moment. Additionally,
the Company agrees that it shall comply with the provisions
of Rules 424(b), 430A and 434, as applicable, under the
Securities Act and will use its reasonable efforts to
confirm that any filings made by the Company under such Rule
424(b) were received in a timely manner by the Commission.
(c) AMENDMENTS AND SUPPLEMENTS TO THE PROSPECTUS AND
OTHER SECURITIES ACT MATTERS. If, during the Prospectus
Delivery Period, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered
to a purchaser, not misleading, or if in the opinion of the
Underwriter or counsel for the Underwriter it is otherwise
necessary to amend or supplement the Prospectus to comply
with law, the Company agrees promptly to prepare (subject to
Section 3(A)(a) hereof), file with the Commission and
furnish at its own expense to the Underwriter and to
dealers, amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) COPIES OF ANY AMENDMENTS AND SUPPLEMENTS TO THE
PROSPECTUS. The Company agrees to furnish the Underwriter,
without charge, during the Prospectus Delivery Period, as
many copies of the Prospectus and any amendments and
supplements thereto (including any documents incorporated or
deemed incorporated by reference therein) as the Underwriter
may request.
(e) BLUE SKY COMPLIANCE. The Company shall cooperate
with the Underwriter and counsel for the Underwriter to
qualify or register the Common Shares for sale under (or
obtain exemptions from the application of) the Blue Sky or
state securities laws of those jurisdictions designated by
the Underwriter, shall comply with such laws and shall
continue such qualifications, registrations and exemptions
in effect so long as required for the distribution of the
Common Shares. The Company shall not be required to qualify
as a foreign corporation or to take any action that would
subject it to general service of process in any such
jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign corporation. The
Company will advise the Underwriter promptly of the
suspension of the qualification or registration of (or any
such exemption relating to) the Common Shares for offering,
sale or trading in any jurisdiction or any initiation or
threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall
use its best efforts to obtain the withdrawal thereof at the
earliest possible moment.
(f) TRANSFER AGENT. The Company shall engage and
maintain, at its expense, a registrar and transfer agent for
the Common Stock.
(g) EARNINGS STATEMENT. As soon as practicable, the
Company will make generally available to its security
holders and to the Underwriter an earnings statement (which
need not be audited) covering the twelve-month period ending
March 31, 2000 that satisfies the provisions of Section
11(a) of the Securities Act.
(h) PERIODIC REPORTING OBLIGATIONS. During the
Prospectus Delivery 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) FUTURE REPORTS TO THE UNDERWRITER. During the
period of five years hereafter upon request by the
Underwriter the Company will furnish to the Underwriter at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, and to O'Melveny & ▇▇▇▇▇ LLP at the
address set forth in Section 13: (i) 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, Shareholders' equity and cash flows for the year
then ended and the opinion thereon of the Company's
independent public or certified public accountants; (ii) 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 or
any securities exchange; and (iii) as soon as available,
copies of any report or communication of the Company mailed
generally to holders of its capital stock.
(j) EXCHANGE ACT COMPLIANCE. During the Prospectus
Delivery Period, the Company will file all documents
required to be filed with the Commission pursuant to Section
13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act.
B. COVENANTS OF THE SELLING SHAREHOLDERS. Each Selling
Shareholder further covenants and agrees with the Underwriter:
(a) AGREEMENT NOT TO OFFER OR SELL ADDITIONAL
SECURITIES. Such Selling Shareholder will not, without the
prior written consent of the Underwriter (which consent may
be withheld in its sole discretion), directly or indirectly,
sell, offer, contract or grant any option to sell (including
without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the
meaning of Rule 16a-1(h) under the Exchange Act, or
otherwise dispose of any shares of Common Stock, options or
warrants to acquire shares of Common Stock, or securities
exchangeable or exercisable for or convertible into shares
of Common Stock currently or hereafter owned either of
record or beneficially (as defined in Rule 13d-3 under
Securities Exchange Act of 1934, as amended) by the
undersigned, or publicly announce the undersigned's
intention to do any of the foregoing, for a period
commencing on the date hereof and continuing through the
close of trading on the date 180 days after the date of the
Prospectus.
(b) DELIVERY OF FORMS W-8 AND W-9. To deliver to the
Underwriter prior to the Closing Date a properly completed
and executed United States Treasury Department Form W-8 (if
the Selling Shareholder is a non-United States person) or
Form W-9 (if the Selling Shareholder is a United States
Person).
The Underwriter may, in its sole discretion, waive in
writing the performance by the Company or any Selling Shareholder
of any one or more of the foregoing covenants or extend the time
for their performance.
Section 4. PAYMENT OF EXPENSES. Except as otherwise provided
in this Agreement, each party agrees that it shall bear its own expenses
incident to the performance of their obligations under this Agreement.
The Selling Shareholders further agree with the Underwriter
to pay (directly or by reimbursement) all fees and expenses incident to the
performance of their obligations under this Agreement which are not
otherwise specifically provided for herein, including but not limited to
(i) fees and expenses of counsel and other advisors for such Selling
Shareholders, (ii) fees and expenses of the Custodian and (iii) expenses
and taxes incident to the sale and delivery of the Common Shares to be sold
by such Selling Shareholders to the Underwriter hereunder (which taxes, if
any, may be deducted by the Custodian under the provisions of Section 2 of
this Agreement).
This Section 4 shall not affect or modify any separate,
valid agreement relating to the allocation of payment of expenses between
the Company, on the one hand, and the Selling Shareholders, on
the other hand.
Section 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER.
The obligations of the Underwriter to purchase and pay for the Common
Shares as provided herein on the Closing Date shall be subject to the
accuracy of the representations and warranties on the part of the Company
and the Selling Shareholders set forth in Sections 1(A) and 1(B) hereof as
of the date hereof and as of the Closing Date as though then made, 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) ACCOUNTANTS' COMFORT LETTER. On the date hereof,
the Underwriter shall have received from KPMG LLP,
independent public or certified public accountants for the
Company and its predecessor entities, a letter dated the
date hereof addressed to the Underwriter, in form and
substance satisfactory to the Underwriter, containing
statements and information of the type ordinarily included
in accountant's "comfort letters" to underwriters, delivered
according to Statement of Auditing Standards No. 72 (or any
successor bulletin), with respect to the audited and
unaudited financial statements and certain financial
information contained in the Registration Statement and the
Prospectus.
(b) COMPLIANCE WITH REGISTRATION REQUIREMENTS; NO
STOP ORDER; NO OBJECTION FROM NASD. For the period from and
after effectiveness of this Agreement and prior to the
Closing Date:
(i) the Company shall have filed the
Prospectus with the Commission (including the
information required by Rule 430A under the
Securities Act) in the manner and within the time
period required by Rule 424(b) under the Securities
Act; or the Company shall have filed a post-effective
amendment to the Registration Statement containing
the information required by such Rule 430A, and such
post-effective amendment shall have become effective;
or, if the Company elected to rely upon Rule 434
under the Securities Act and obtained the
Underwriter's consent thereto, the Company shall have
filed a Term Sheet with the Commission in the manner
and within the time period required by such Rule
424(b);
(ii) no stop order suspending the
effectiveness of the Registration Statement, any Rule
462(b) Registration Statement, or any post-effective
amendment to the Registration Statement, shall be in
effect and no proceedings for such purpose shall have
been instituted or threatened by the Commission; and
(iii) the NASD shall have raised no objection
to the fairness and reasonableness of the
underwriting terms and arrangements.
(c) NO MATERIAL ADVERSE CHANGE OR RATINGS AGENCY
CHANGE. For the period from and after the date of this
Agreement and prior to the Closing Date:
(i) in the judgment of the Underwriter there
shall not have occurred any Material Adverse Change;
and
(ii) there shall not have occurred any
downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any
review for a possible change that does not indicate
the direction of the possible change, in the rating
accorded any securities of the Company or any of its
subsidiaries by any "nationally recognized
statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the
Securities Act.
(d) OPINION OF COUNSEL FOR THE COMPANY. On the
Closing Date the Underwriter shall have received the
favorable opinion of ▇▇▇▇▇ and Associates, counsel for the
Company, dated as of such Closing Date, in such form as the
parties may reasonably agree.
(e) OPINION OF COUNSEL FOR THE UNDERWRITER. On the
Closing Date the Underwriter shall have received the
favorable opinion of O'Melveny & ▇▇▇▇▇ LLP, counsel for the
Underwriter, dated as of the Closing Date, with respect to
the matters set forth in paragraphs (i), (vii), (viii),
(ix), (xi) (xi), (xii), and the next-to-last paragraph of
Exhibit A.
(f) OFFICERS' CERTIFICATE. On the Closing Date the
Underwriter shall have received a written certificate on
behalf of the Company executed by the Chief Accounting
Officer of the Company, dated as of such Closing Date, to
the effect set forth in subsections (b)(ii) and (c)(ii) of
this Section 5, and further to the effect that:
(i) for the period from and after the date of
this Agreement and prior to such Closing Date, there
has not occurred any Material Adverse Change;
(ii) the representations, warranties and
covenants of the Company set forth in Section 1(A) of
this Agreement are true and correct with the same
force and effect as though expressly made on and as
of such Closing Date; and
(iii) the Company has complied with all the
agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to such
Closing Date.
(g) BRING-DOWN COMFORT LETTER. On the Closing Date
the Underwriter shall have received from the independent
public or certified public accountants identified in
subsection (a) of this Section 5 a letter dated such date,
in form and substance satisfactory to the Underwriter, to
the effect that they reaffirm the statements made in the
letter furnished by them pursuant to subsection (a) of this
Section 5, except that the specified date referred to
therein for the carrying out of procedures shall be no more
than three business days prior to the Closing Date.
(h) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS.
On the Closing Date the Underwriter shall have received the
favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for
the Selling Shareholders, dated as of such Closing Date, the
form of which is attached as Exhibit B .
(i) SELLING SHAREHOLDERS' CERTIFICATE. On the Closing
Date the Underwriter shall received a written certificate
executed by the Attorney-in-Fact of each Selling
Shareholder, dated as of the Closing Date, to the effect
that:
(i) the representations, warranties and
covenants of such Selling Shareholder set forth in
Section 1(B) of this Agreement are true and correct
with the same force and effect as though expressly
made by such Selling Shareholder on and as of the
Closing Date; and
(ii) such Selling Shareholder has complied
with all the agreements and satisfied all the
conditions on its part to be performed or satisfied
at or prior to the Closing Date.
(j) SELLING SHAREHOLDERS' DOCUMENTS. On the date
hereof, the Company and the Selling Shareholders shall have
furnished for review by the Underwriter copies of the Powers
of Attorney and Custody Agreements executed by each of the
Selling Shareholders and such further information,
certificates and documents as the Underwriter may reasonably
request.
(k) ADDITIONAL DOCUMENTS. On or before the Closing
Date, the Underwriter and counsel for the Underwriter shall
have received such information, documents and opinions as
they may reasonably require for the purposes of enabling
them to pass upon the issuance and sale of the Common Shares
as contemplated herein, or in order to evidence the accuracy
of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein
contained.
If any condition specified in this Section 5 is not
satisfied when and as required to be satisfied, this Agreement may
be terminated by the Underwriter by notice to the Company and the
Selling Shareholders at any time on or prior to the Closing Date
which termination shall be without liability on the part of any
party to any other party, except that Section 4, Section 6, Section
8 and Section 9 shall at all times be effective and shall survive
such termination.
Section 6. REIMBURSEMENT OF UNDERWRITER'S EXPENSES. If this
Agreement is terminated by the Underwriter pursuant to Section 5, Section
7, Section 10 or Section 11 or Section 17, but only to the extent that such
termination occurs as a result of the Selling Shareholders Information, or
if the sale to the Underwriter of the Common Shares on the Closing Date is
not consummated because of any refusal, inability or failure on the part of
the Selling Shareholders to perform any agreement herein or to comply with
any provision hereof, the Selling Shareholders agree to reimburse the
Underwriter upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Underwriter in connection with the proposed
purchase and the offering and sale of the Common Shares, including but not
limited to fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.
Section 7. EFFECTIVENESS OF THIS AGREEMENT.
This Agreement shall not become effective until the
execution of this Agreement by the parties hereto.
Prior to such effectiveness, this Agreement may be
terminated by any party by notice to each of the other parties hereto, and
any such termination shall be without liability on the part (a) of the
Company or the Selling Shareholders to the Underwriter, except that the
Company and the Selling Shareholders shall be obligated to reimburse the
expenses of the Underwriter pursuant to Sections 4 and 6 hereof, (b) of the
Underwriter to the Company or the Selling Shareholders, or (c) of any party
hereto to any other party except that the provisions of Section 8 and
Section 9 shall at all times be effective and shall survive such
termination.
Section 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE UNDERWRITER BY THE
COMPANY. The Company agrees to indemnify and hold harmless
the Underwriter, its officers and employees, and each
person, if any, who controls the Underwriter within the
meaning of the Securities Act and the Exchange Act against
any loss, claim, damage, liability or expense, as incurred,
to which the Underwriter or such controlling person may
become subject, under the Securities Act, the Exchange Act
or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based (i) upon
any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or
any amendment thereto, including any information deemed to
be a part thereof pursuant to Rule 430A or Rule 434 under
the Securities Act, or the omission or alleged omission
therefrom of 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 therefrom of a
material fact necessary in order to make the statements
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 any Underwriter in
connection with, or relating in any manner to, the Common
Stock or the offering contemplated hereby, and which is
included as part of any loss, claim, damage, liability or
action arising out of or based upon any matter covered by
clause (i) or (ii) above, provided that the Company shall
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 gross negligence or willful misconduct; and to
reimburse each Underwriter and each such controlling person
for any and all expenses (including the fees and
disbursements of counsel chosen by the Underwriter) as such
expenses are reasonably incurred by the Underwriter or such
controlling person in connection with investigating,
defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided,
however, that the foregoing indemnity agreement shall not
apply to any loss, claim, damage, liability or expense to
the extent, but only to the extent, arising out of or based
upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company
by the Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto); and provided, further,
that with respect to any preliminary prospectus, the
foregoing indemnity agreement shall not inure to the benefit
of the Underwriter from whom the person asserting any loss,
claim, damage, liability or expense purchased Common Shares,
or any person controlling the Underwriter, if copies of the
Prospectus were timely delivered to the Underwriter pursuant
to Section 2 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 the 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 Common 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 or expense. The
indemnity agreement set forth in this Section 8(a) shall be
in addition to any liabilities that the Company may
otherwise have.
(b) INDEMNIFICATION OF THE UNDERWRITER BY THE SELLING
SHAREHOLDERS. Each of the Selling Stockholders, jointly and
severally, agrees to indemnify and hold harmless the
Underwriter, its officers and employees, and each person, if
any, who controls the Underwriter within the meaning of the
Securities Act and the Exchange Act against any loss, claim,
damage, liability or expense, as incurred, to which such
Underwriter or such controlling person may become subject,
under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment
thereto, including any information deemed to be a part
thereof pursuant to Rule 430A or Rule 434 under the
Securities Act, or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading,
but only with reference to the Selling Shareholders
Information; 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
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, but only with
reference to the Selling Shareholders Information; or (iii)
in whole or in part upon any inaccuracy in the
representations and warranties of the Selling Stockholders
contained herein; or (iv) in whole or in part upon any
failure of the Selling Stockholders to perform their
respective obligations hereunder or under law; or (v) any
act or failure to act or any alleged act or failure to act
by any Underwriter in connection with, or relating in any
manner to, the Common Stock or the offering contemplated
hereby, and which is included as part of any loss, claim,
damage, liability or action arising out of or based upon any
matter covered by clause (i) or (ii) above, provided that
the Selling Shareholders shall 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 the Underwriter through its gross
negligence or willful misconduct; and to reimburse the
Underwriter and each such controlling person for any and all
expenses (including the fees and disbursements of counsel
chosen by the Underwriter) as such expenses are reasonably
incurred by the Underwriter or such controlling person in
connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the
foregoing indemnity agreement shall not apply to any loss,
claim, damage, liability or expense to the extent, but only
to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with
written information furnished to the Selling Stockholders by
the Underwriter expressly for use in the Selling
Shareholders Information in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment
or supplement thereto); and provided, further, that with
respect to any preliminary prospectus, the foregoing
indemnity agreement shall not inure to the benefit of the
Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Common Shares, or any
person controlling the Underwriter, if copies of the
Prospectus were timely delivered to the Underwriter pursuant
to Section 2 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 Common 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 or expense. The
indemnity agreement set forth in this Section 8(b) shall be
in addition to any liabilities that the Selling Stockholders
may otherwise have.
(c) INDEMNIFICATION OF THE COMPANY, ITS DIRECTORS AND
OFFICERS. The Underwriter agrees to indemnify and hold
harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, the Selling
Shareholders and each person, if any, who controls the
Company or any Selling Shareholder within the meaning of the
Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the
Company, or any such director, officer, Selling Shareholder
or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such
settlement is effected with the written consent of the
Underwriter), insofar as such loss, claim, damage, liability
or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon any untrue or alleged
untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or
arises out of or is based upon the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the
Registration Statement, any preliminary prospectus, the
Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information
furnished to the Company and the Selling Shareholders by the
Underwriter expressly for use therein; and to reimburse the
Company, or any such director, officer, Selling Shareholder
or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director,
officer, Selling Shareholder or controlling person in
connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage,
liability, expense or action. The indemnity agreement set
forth in this Section 8(c) shall be in addition to any
liabilities that the Underwriter may otherwise have.
(d) NOTIFICATIONS AND OTHER INDEMNIFICATION
PROCEDURES. Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under
this Section 8, notify the indemnifying party in writing of
the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability
which it may have to any indemnified party for contribution
or otherwise than under the indemnity agreement contained in
this Section 8 or to the extent it is not prejudiced as a
proximate result of such failure. In case any such action is
brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled
to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from
such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of
the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may
be legal defenses available to it and/or other indemnified
parties which are different from or additional to those
available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel
to assume such legal defenses and to otherwise participate
in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such
indemnifying party's election so to assume the defense of
such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one
separate counsel (together with local counsel), approved by
the indemnifying party (the Underwriter in the case of
Section 8(c) and Section 9), representing the indemnified
parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees
and expenses of counsel shall be at the expense of the
indemnifying party.
(e) SETTLEMENTS. The indemnifying party under this
Section 8 shall not be liable for any settlement of any
proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim,
damage, liability or expense by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by Section 8(d)
hereof, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into
more than 30 days after receipt by 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 includes an unconditional release of
such indemnified party from all liability on claims that are
the subject matter of such action, suit or proceeding.
Section 9. CONTRIBUTION.
If the indemnification provided for in Section 8 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities
or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities
or expenses referred to therein (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholders, on the one hand, and the Underwriter, on the other hand, from
the offering of the Common Shares pursuant to this Agreement or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Shareholders, on the one hand, and the Underwriter,
on the other hand, in connection with the statements or omissions or
inaccuracies in the representations and warranties herein which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Selling Shareholders, on the one hand, and the Underwriter,
on the other hand, in connection with the offering of the Common Shares
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Common
Shares pursuant to this Agreement (before deducting expenses) received by
the Company and the Selling Shareholders, and the total underwriting
discount received by the Underwriter (which discount shall be equal to the
difference between the closing price of the Common Stock on the date of
this Agreement and the per share price at which the Shares are being sold
to the Underwriter under this Agreement), in each case as set forth on the
front cover page of the Prospectus (or, if Rule 434 under the Securities
Act is used, the corresponding location on the Term Sheet) bear to the
aggregate initial public offering price of the Common Shares as set forth
on such cover. The relative fault of the Company and the Selling
Shareholders, on the one hand, and the Underwriter, on the other hand,
shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact or any such inaccurate or alleged
inaccurate representation or warranty relates to information supplied by
the Company or the Selling Shareholders, on the one hand, or the
Underwriter, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in Section 8(c),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The
provisions set forth in Section 8(c) with respect to notice of commencement
of any action shall apply if a claim for contribution is to be made under
this Section 9; provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
Section 8(c) for purposes of indemnification.
The Company, the Selling Shareholders and the Underwriter
agree that it would not be just and equitable if contribution pursuant to
this Section 9 were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, the
Underwriter shall not be required to contribute any amount in excess of the
underwriting commissions received by the Underwriter in connection with the
Common Shares underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 9, each officer and employee of the Underwriter and each
person, if any, who controls the Underwriter within the meaning of the
Securities Act and the Exchange Act shall have the same rights to
contribution as the Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company with the meaning of the Securities
Act and the Exchange Act shall have the same rights to contribution as the
Company.
Section 10. RESERVED.
Section 11. TERMINATION OF THIS AGREEMENT. Prior to the
First Closing Date this Agreement may be terminated by the Underwriter by
notice given to the Company and the Selling Shareholders if at any time (i)
trading or quotation in any of the Company's securities shall have been
suspended or limited by the Commission or by the New York Stock Exchange,
or trading in securities generally on either the Nasdaq Stock Market or the
New York Stock Exchange shall have been suspended or limited, or minimum or
maximum prices shall have been generally established on any of such stock
exchanges by the Commission or the NASD; (ii) a general banking moratorium
shall have been declared by any of federal, New York or California
authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any
change in the United States or international financial markets, or any
substantial change or development involving a prospective substantial
change in United States' or international political, financial or economic
conditions, as in the judgment of the Underwriter is material and adverse
and makes it impracticable to market the Common Shares in the manner and on
the terms described in the Prospectus or to enforce contracts for the sale
of securities; (iv) in the judgment of the Underwriter there shall have
occurred any Material Adverse Change; or (v) the Company shall have
sustained a loss by strike, fire, flood, earthquake, accident or other
calamity of such character as in the judgment of the Underwriter 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 11 shall be without liability on the
part of (a) the Company or the Selling Shareholders to the Underwriter,
except that the Company and the Selling Shareholders shall be obligated to
reimburse the expenses of the Underwriter pursuant to Sections 4 and 6
hereof, (b) the Underwriter to the Company or the Selling Shareholders, or
(c) of any party hereto to any other party except that the provisions of
Section 8 and Section 9 shall at all times be effective and shall survive
such termination.
Section 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE
DELIVERY. The respective indemnities, agreements, representations,
warranties and other statements of the Company, of its officers, of the
Selling Shareholders and of the Underwriter set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or the Company or any
of its or their partners, officers or directors or any controlling person,
or the Selling Shareholders, as the case may be, and will survive delivery
of and payment for the Common Shares sold hereunder and any termination of
this Agreement.
Section 13. NOTICES. All communications hereunder shall be
in writing and shall be mailed, hand delivered or telecopied and confirmed
to the parties hereto as follows:
If to the Underwriter:
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
with a copy to both:
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
and
O'Melveny & ▇▇▇▇▇ LLP
Embarcadero Center West
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Company:
▇▇▇▇▇ Lang LaSalle Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
If to the Selling Shareholders:
▇▇▇▇▇▇▇▇▇ and Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
Section 14. SUCCESSORS. This Agreement will inure to the
benefit of and be binding upon the parties hereto, and to the benefit of
the employees, officers and directors and controlling persons referred to
in Section 8 and Section 9, and in each case their respective successors,
and personal representatives, and no other person will have any right or
obligation hereunder. The term "successors" shall not include any purchaser
of the Common Shares as such from the Underwriter merely by reason of such
purchase.
Section 15. PARTIAL UNENFORCEABILITY. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
Section 16. (a) GOVERNING LAW PROVISIONS. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN
SUCH STATE.
(b) 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 San Francisco
or the courts of the State of California in each case
located in the City and County of San Francisco
(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 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.
Section 17. FAILURE OF ONE OR MORE OF THE SELLING
SHAREHOLDERS TO SELL AND DELIVER COMMON SHARES. If one or more of the
Selling Shareholders shall fail to sell and deliver to the Underwriter the
Common Shares to be sold and delivered by such Selling Shareholders at the
Closing Date pursuant to this Agreement, then the Underwriter may at its
option, by written notice from the Underwriter to the Company and the
Selling Shareholders, either (i) terminate this Agreement without any
liability on the part of the Underwriter or, except as provided in Sections
4, 6, 8 and 9 hereof, the Company or the Selling Shareholders, or (ii)
purchase the shares which the Company and other Selling Shareholders have
agreed to sell and deliver in accordance with the terms hereof. If one or
more of the Selling Shareholders shall fail to sell and deliver to the
Underwriter the Common Shares to be sold and delivered by such Selling
Shareholders pursuant to this Agreement at the Closing Date, then the
Underwriter shall have the right, by written notice from the Underwriter to
the Company and the Selling Shareholders, to postpone the Closing Date, but
in no event for longer than seven days in order that the required changes,
if any, to the Registration Statement and the Prospectus or any other
documents or arrangements may be effected.
Section 18. GENERAL PROVISIONS. 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.
This Agreement may be executed in two or more counterparts, each one of
which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be
amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The Table of
Contents and the Section headings herein are for the convenience of the
parties only and shall not affect the construction or interpretation of
this Agreement.
Each of the parties hereto acknowledges that it is a
sophisticated business person who was adequately represented by counsel
during negotiations regarding the provisions hereof, including, without
limitation, the indemnification provisions of Section 8 and the
contribution provisions of Section 9, and is fully informed regarding said
provisions. Each of the parties hereto further acknowledges that the
provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its
business in order to assure that adequate disclosure has been made in the
Registration Statement, any preliminary prospectus and the Prospectus (and
any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company and the Custodian the
enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with
its terms.
Very truly yours,
THE COMPANY:
▇▇▇▇▇ ▇▇▇▇ LASALLE INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
SELLING SHAREHOLDERS:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇
_________________________________
as attorney in fact for
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇
_________________________________
as attorney in fact for
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇
/s/ ▇▇▇ ▇▇▇▇▇
_________________________________
as attorney in fact for
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ HOLDINGS, LLC
By: /s/ ▇▇▇ ▇▇▇▇▇
____________________________
Name: as attorney in fact for
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Managing Member
THE 1997 GRANTOR RETAINED ANNUITY
TRUST CREATED BY ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ DATED JUNE 18, 1997
By: /s/ ▇▇▇ ▇▇▇▇▇
____________________________
Name: as attorney in fact for
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: ___________________________
THE 1997 GRANTOR RETAINED ANNUITY
TRUST CREATED BY ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇ DATED JUNE 19, 1997
By: /s/ ▇▇▇ ▇▇▇▇▇
______________________________
Name: as attorney in fact for
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇
Its: ___________________________
THE 1997 GRANTOR RETAINED ANNUITY
TRUST CREATED BY ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ DATED JUNE 19, 1997
By: /s/ ▇▇▇ ▇▇▇▇▇
_____________________________
Name: as attorney in fact for
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: ____________________________
The foregoing Underwriting Agreement is hereby confirmed and
accepted by the Underwriter in San Francisco, California as of the date
first above written.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Horsey
Title: Senior Managing Director
SCHEDULE A
UNDERWRITER
Aggregate Principal
Underwriter Amount of Securities to
be Purchased
-----------------------------------
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC......... 750,000
Total Shares.......................... 750,000
========
SCHEDULE B
SELLING SHAREHOLDER
Aggregate Principal
Selling Shareholder Amount of Securities to
be Purchased
--------------------------------------------
▇▇▇▇▇▇▇▇▇ Holdings, LLC
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ 43215-3707.................................. 309,783
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ 43215-3707.................................. 130,434
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ 43215-3707.................................. 77,524
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ 43215-3707.................................. 58,098
1997 Grantor Retained Annuity Trust created
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated June 18, 1997
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ 43215-3707.................................. 77,361
1997 Grantor Retained Annuity Trust created
by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇, dated June 19, 1997
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ 43215-3707.................................. 48,403
1997 Grantor Retained Annuity Trust created
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, dated June 19, 1997
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ 43215-3707.................................. 48,397
.......................................Total Shares 750,000
=======
SCHEDULE C
CUSTODIAN
Selling Shareholder Custodian
------------------------------------------
▇▇▇▇▇▇▇▇▇ Holdings, LLC ▇▇▇▇▇▇▇▇▇ and Company, LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and Company, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and Company, LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ and Company, LLC
1997 Grantor Retained Annuity Trust created ▇▇▇▇▇▇▇▇▇ and Company, LLC
by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, dated June 18, 1997
1997 Grantor Retained Annuity Trust created ▇▇▇▇▇▇▇▇▇ and Company, LLC
by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇, dated June 19, 1997
1997 Grantor Retained Annuity Trust created ▇▇▇▇▇▇▇▇▇ and Company, LLC
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, dated June 19, 1997
EXHIBIT A
[to be attached]
EXHIBIT B
The opinion of such counsel pursuant to Section 5(i) shall
be rendered to the Underwriter at the request of the Company and shall so
state therein. References to the Prospectus in this Exhibit B
include any supplements thereto at the Closing Date.
(i) The Underwriting Agreement has been duly
authorized, executed and delivered by or on behalf of, and is a
valid and binding agreement of, such Selling Shareholder.
(ii) The execution and delivery by such Selling
Shareholder of, and the performance by such Selling Shareholder of
its obligations under, the Underwriting Agreement and its Custody
Agreement and its Power of Attorney will not contravene or conflict
with, result in a breach of, or constitute a default under, the
charter or by-laws, partnership agreement, trust agreement or other
organizational documents, as the case may be, of such Selling
Shareholder, or, to the best of such counsel's knowledge, violate
or contravene any provision of applicable law or regulation, or
violate, result in a breach of or constitute a default under the
terms of any other agreement or instrument to which such Selling
Shareholder is a party or by which it is bound, or any judgment,
order or decree applicable to such Selling Shareholder of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Shareholder.
(iii) Each of the Custody Agreement and Power of
Attorney of such Selling Shareholder has been duly authorized,
executed and delivered by such Selling Shareholder and is a valid
and binding agreement of such Selling Shareholder, enforceable in
accordance with its terms, except as rights to indemnification
thereunder may be limited by applicable law and except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
(iv) Assuming that the Underwriter purchases the
Common Shares which are sold by such Selling Shareholder pursuant
to the Underwriting Agreement for value, in good faith and without
notice of any adverse claim, the delivery of such Common Shares
pursuant to the Underwriting Agreement will pass good and valid
title to such Common Shares, free and clear of either (A) any
security interest, mortgage, pledge, lieu encumbrance or other
claim.
(v) To the best of such counsel's knowledge, no
consent, approval, authorization or other order of, or registration
or filing with, any court or governmental authority or agency, is
required for the consummation by such Selling Shareholder of the
transactions contemplated in the Underwriting Agreement, except as
required under the Securities Act, applicable state securities or
blue sky laws, and from the NASD.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than
the General Corporation Law of the State of Maryland, the General
Corporation Law of the State of organization of the LLC or creation of the
Trust, to the extent they deem proper and specified in such opinion, upon
the opinion (which shall be dated the Closing Date shall be satisfactory in
form and substance to the Underwriter) of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for
the Underwriter; provided, however, that such counsel shall further state
that they believe that they and the Underwriter are justified in relying
upon such opinion of other counsel, and (B) as to matters of fact, to the
extent they deem proper, on certificates of the Selling Shareholders and
public officials.
