CARNIVAL CORPORATION
CLASS A COMMON STOCK
(PAR VALUE $.01 PER SHARE)
_________________________
UNDERWRITING AGREEMENT
(U.S. VERSION)
November __, 1996
Xxxxxxx, Xxxxx & Co.,
Bear, Xxxxxxx & Co. Inc.,
Xxxxxx Brothers Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
As representatives of the several Underwriters
named in Schedule II hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Certain stockholders named in Schedule V hereto (the "Selling
Stockholders") of Carnival Corporation, a company incorporated under the
laws of the Republic of Panama (the "Company"), propose, subject to the
terms and conditions stated herein, to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, an aggregate of
16,240,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 2,436,000 additional shares (the "Optional Shares") of
Class A Common Stock, par value $.01 per share ("Stock") of the Company
(the Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof being collectively called the
"Shares").
It is understood and agreed to by all parties that the Company
and the Selling Stockholders are concurrently entering into an agreement
(the "International Underwriting Agreement") providing for the sale by the
Selling Stockholders of up to a total of 4,669,000 shares of Stock (the
"International Shares"), including the overallotment option thereunder,
through arrangements with certain underwriters outside the United States
(the "International Underwriters"), for whom Xxxxxxx Xxxxx International,
Bear, Xxxxxxx International Limited, Xxxxxx Brothers International (Europe)
and Xxxxxxx Xxxxx International are acting as lead managers. Anything
herein or therein to the contrary notwithstanding, the respective closings
under this Agreement and the International Underwriting Agreement are
hereby expressly made conditional on one another. The Underwriters
hereunder and the International Underwriters are simultaneously entering
into an Agreement between U.S. and International Underwriting Syndicates
(the "Agreement between Syndicates") which provides, among other things,
for the transfer of shares of Stock between the two syndicates. Two forms
of prospectus are to be used in connection with the offering and sale of
shares of Stock contemplated by the foregoing, one relating to the Shares
hereunder and the other relating to the International Shares. The latter
form of prospectus will be identical to the former except for the front
cover page, back cover page, and the text under the captions "Underwriting"
and "Taxation". Except as used in Sections 2, 3, 4 and 9 herein, and except
as the context may otherwise require, references hereinafter to the Shares
shall include all the shares of Stock which may be sold pursuant to either
this Agreement or the International Underwriting Agreement, and references
herein to any prospectus whether in preliminary or final form, and whether
as amended or supplemented, shall include both the U.S. and the
international versions thereof.
1. REPRESENTATIONS AND WARRANTIES. (A) The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in
this Section 1. Certain terms used in this Section 1 are defined at the
end of this Section 1.
(a) If the offering of the Shares is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering of the Shares is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form
S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Shares. The Company may have filed one or more amendments
thereto, and may have used a Preliminary Final Prospectus, each
of which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of
the Shares is a Delayed Offering and, although the Basic
Prospectus may not include all the information with respect to
the Shares and the offering thereof required by the Act and the
rules thereunder to be included in the Final Prospectus, the
Basic Prospectus includes all such information required by the
Act and the rules and regulations thereunder to be included
therein as of the Effective Date. The Company will next file
with the Commission pursuant to Rule 424(b)(2) or (5) a final
supplement to the form of prospectus included in such
registration statement relating to the Shares and the offering
thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Shares and
the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
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information and other changes (beyond those contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for the use of Form
S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale of the
Shares. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus relating to the
Shares in accordance with Rules 430A and 424(b) (1) or (4), or
(y) prior to the effectiveness of such registration statement, an
amendment to such registration statement, including the form of
final prospectus. In the case of clause (x), the Company has
included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in the Final Prospectus with respect to the Shares and
the offering thereof. As filed, such final prospectus supplement
or such amendment and form of final prospectus supplement shall
contain all Rule 430A Information, together with all other such
required information, with respect to the Shares and the offering
thereof and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and at each Time of Delivery (as defined herein), the
Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Final Prospectus (or any supplement
thereto).
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(c) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Final Prospectus, in either
case which could reasonably be expected to have a material adverse
effect on the general affairs, business, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and, since the respective dates as of
which information is given in the Registration Statement and the Final
Prospectus, there has not been (i) any change in the capital stock or
increase in long-term debt of the Company on a consolidated basis
other than any increase in the capital stock upon the issuance of
shares or options pursuant to employee stock option or other benefit
plans, pursuant to contracts with officers or employees of the Company
and its subsidiaries, any increase in capital stock upon the
conversion of the Company's 41/2% Convertible Subordinated Notes due
July 15, 1997, and any increase in long term debt in excess of
$10,000,000, or (ii) any increase in short-term debt of the Company in
excess of $10,000,000 or (iii) any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Final Prospectus;
(d) The subsidiaries of the Company listed on Schedule III hereto
are hereinafter referred to as the "Subsidiaries." All other
Subsidiaries of the Company, in the aggregate, do not constitute a
"Significant Subsidiary" as defined in Regulation S-X. The Company
and each Subsidiary has good and marketable title to all real property
and good and marketable title to all personal property owned by it, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Final Prospectus, such as are identified
on Schedule III or IV hereof or such as in the aggregate do not have
and can reasonably be expected in the future not to have a material
adverse effect upon the general affairs, business, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and any real property and buildings
held under lease by the Company or any of the Subsidiaries are held by
it under valid, subsisting and enforceable leases with such exceptions
described in the Final Prospectus or such exceptions that in the
aggregate do not have and can reasonably be expected in the future not
to have a material adverse effect upon the general affairs, business,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole;
(e) The Company and each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
(where applicable) under the laws of its jurisdiction of
incorporation, with full power and authority (corporate and other),
and all necessary consents, authorizations, approvals, orders,
licenses, certificates and permits of and from, and declarations and
filings with, all federal, state, local and other governmental
authorities, to own, lease, license and use its properties and conduct
its business as described in the Final Prospectus (except for such
consents, authorizations, approvals, orders, licenses, certificates,
permits, declarations and filings, for which the failure to have
obtained, individually or in the aggregate, does not and can
reasonably
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be expected in the future not to have a material adverse effect upon
the general affairs, business, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole), and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, which requires such
qualification (except where the failure to be so qualified or in good
standing does not, and can reasonably be expected in the future not
to, have a material adverse effect upon the general affairs, business,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole);
(f) The Company has an authorized capitalization as set forth in
the Final Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable; and all of the issued shares of capital
stock of each Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, security interests or claims, except as otherwise
disclosed in Schedule III hereto;
(g) The Company has all requisite power and authority to execute,
deliver and perform this Agreement and the International Underwriting
Agreement. All necessary corporate proceedings of the Company have
been duly taken to authorize the execution, delivery and performance
by the Company of this Agreement and the International Underwriting
Agreement. The issue and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and the
International Underwriting Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries is bound or to which any of the property or
assets of the Company or any of the Subsidiaries is subject; nor will
such actions result in any violation of any statute or any order, rule
or regulation binding on the Company or any of the Subsidiaries or any
of their properties, except, with respect to jurisdictions outside the
United States and Panama, for violations which, individually or in the
aggregate, would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries taken as a whole or on the ability of the Underwriters to
receive good and valid title to the Shares being sold hereunder; and
no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by
the Company of transactions contemplated by this Agreement and the
International Underwriting Agreement, except the registration under
the Act of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters and the
International Underwriters;
(h) Other than as set forth in the Final Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is subject, which
5
could reasonably be expected to individually or in the aggregate have
a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others. Neither the Company nor any
subsidiary is in violation of, or in default with respect to, any law,
rule, regulation, order, judgment or decree, except as may be properly
described in the Final Prospectus and such as in the aggregate do not
now have and can reasonably be expected in the future not to have a
material adverse effect on the general affairs, business, financial
position, shareholders' equity or results of operations of the Company
and the subsidiaries, taken as a whole; nor is the Company or any
subsidiary required to take any action in order to avoid such
violation or default;
(i) Price Waterhouse LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(j) All patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, franchises and
other intangible properties and assets (all of the foregoing being
herein called "Intangibles") that the Company or any of its
subsidiaries owns or has pending, or under which it is licensed, are
in good standing and uncontested, except for such Intangibles
(individually or in the aggregate) where the failure to be in good
standing and uncontested does not and can reasonably be expected in
the future not to have a material adverse effect upon the general
affairs, business, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole.
Neither the Company nor any of its subsidiaries has infringed, is
infringing, or has received notice of infringement with respect to
asserted Intangibles of others, except such as individually or in the
aggregate do not now have and can reasonably be expected in the future
not to have a material adverse effect upon the general affairs,
business, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole. To
the knowledge of the Company, there is no infringement by others of
Intangibles of the Company or of any of its subsidiaries except such
as individually or in the aggregate do not now have and can reasonably
be expect in the future not to have a material adverse effect upon the
general affairs, business, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole;
(k) Neither the Company, nor any subsidiary, is now or is
expected by the Company or any subsidiary to be in violation or breach
of, or in default with respect to, complying with any material
provision of any contract, agreement instrument, lease, license,
arrangement or understanding which is material to the Company and its
subsidiaries, taken as a whole, and each such contract, agreement,
instrument, lease, license, arrangement and understanding is in full
force and is the legal, valid and binding obligation of the Company
and its subsidiaries and is enforceable as to them is accordance with
its terms. Each of the Company and each Subsidiary enjoys peaceful
and undisturbed possession under all material leases and licenses
under which it is operating. Neither the Company nor any Subsidiary
is a party to or bound by any contract, agreement, instrument, lease,
license, arrangement or understanding, or subject
6
to any charter or other restriction, which has had or may in the
future be reasonably expect to have a material adverse effect on
the general affairs, business, financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, taken as a whole. Neither the Company nor any
Subsidiary is in violation or breach of, or in default with
respect to, any term of its certificate of incorporation (or
other charter document) or by-laws;
(l) The Company, directly or indirectly, holds good and
marketable title to each of the vessels listed on Schedule IV hereto,
subject only to the liens listed therein and maritime liens in the
ordinary course of business. Each such vessel is duly registered
under the laws of the jurisdiction listed opposite its name on
Schedule IV hereto;
(m) The Company is not an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred to
in paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean
any preliminary prospectus which describes the Shares and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus relating to the Shares that is first
filed pursuant to Rule 424(b) after the Execution Time, together with the
Basic Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Shares, including the Basic Prospectus, included
in the Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in paragraph
(a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes effective prior to the
First Time of Delivery (as defined in Section 4 hereof), shall also mean
such registration statement as so amended. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A. "Rule 415," "Rule 424," "Rule 000X," "Xxxxxxxxxx
X-X" and "Regulation S-X" refer to such rules or regulation under the Act.
"Rule 430A Information" means information with respect to the Shares and
the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may
7
be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. A "Non-Delayed Offering" shall mean an offering of securities
which is intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415 and
430A, all information (other than Rule 430A Information) with respect to
the securities so offered must be included in such registration statement
at the effective date thereof. A "Delayed Offering" shall mean an offering
of securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Shares is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I hereto.
(B) Each of the Selling Stockholders severally represents and
warrants to, and agrees with, each of the Underwriters and the Company
that:
(a) All consents, approvals, authorizations and orders, if any,
necessary for the execution and delivery by such Selling Stockholder
of this Agreement, the International Underwriting Agreement, the Power
of Attorney and the Custody Agreement hereinafter referred to, and for
the sale of and delivery of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement, have been obtained; subject, however, to consents,
approvals, authorizations and orders, the violations of which
individually or in the aggregate, would not have a material adverse
effect on the business, financial condition or results of operations
of the Company and its subsidiaries taken as a whole or on the ability
of the Underwriters to receive good and valid title to the Shares
being sold hereunder and to the exception that orders or other
authorizations may be required under the 1933 Act or under state
securities or Blue Sky laws in connection with the purchase and
distribution by the Underwriters of the Shares to be sold by such
Selling Stockholder; and such Selling Stockholder has full right,
power and authority to enter into this Agreement, the International
Underwriting Agreement, the Power of Attorney and the Custody
Agreement and to sell, assign, transfer and deliver the Shares to be
sold by such Selling Stockholder hereunder and under the International
Underwriting Agreement;
(b) The sale of the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement and the compliance by such Selling Stockholder with all of
the provisions of this Agreement, the International Underwriting
Agreement, the Power of Attorney and the Custody Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Selling Stockholder is a party or by which
such Selling Stockholder is bound or to which any of the property or
assets of such Selling Stockholder is subject, subject, however, to
conflicts, breaches or violations which individually or in the
aggregate would not have a material adverse effect on the business,
financial condition or results of operations of such Selling
Stockholder or the Company and its subsidiaries taken as a whole or on
the ability of the Underwriters to receive good and valid title to the
Shares being sold hereunder, nor will such action result in any
violation of the provisions of the Articles of Incorporation, By-laws,
governing trust indenture, or other governing instrument, as the case
may be, of such Selling Stockholder or any statute or any order,
8
rule or regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(c) Such Selling Stockholder has, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof), when such Selling
Stockholder is selling Shares hereunder, such Selling Stockholder will
have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting
Agreement, free and clear of all liens, encumbrances, equities or
claims; and, upon delivery of such Shares and payment therefor
pursuant hereto, good and valid title to such Shares, free and clear
of all liens, encumbrances, equities or claims, will pass to the
several Underwriters or the International Underwriters, as the case
may be;
(d) During the period beginning from the date hereof and
continuing to and including the date 365 days after the date of the
Final Prospectus, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder or under the International
Underwriting Agreement, any shares of Stock or any security of the
Company substantially similar thereto, or any other security
convertible into or exchangeable for, or that represents the right to
receive, Stock or any security substantially similar thereto (other
than pursuant to employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable securities
outstanding as of, the date of this Agreement), without the prior
written consent of the Xxxxxxx, Xxxxx & Co.;
(e) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(f) To the extent that any statements or omissions made in the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus, the Final Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder
expressly for use therein, such Basic Prospectus, Preliminary Final
Prospectus and the Registration Statement did, and the Final
Prospectus and any further amendments or supplements to the
Registration Statement and the Final Prospectus, when they become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and, in the
case of the Registration Statement, will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and, in the case of such other documents, will
not contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
(g) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or
at the First Time of Delivery (as defined in Section 4 hereof) a
properly
9
completed and executed United States Treasury Department Form W-8 or
W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(h) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement have been placed in custody under
a Custody Agreement, in the form heretofore furnished to you (the
"Custody Agreement"), duly executed and delivered by such Selling
Stockholder to Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx as custodian
(the "Custodian"), and such Selling Stockholder has duly executed and
delivered a Power of Attorney, in the form heretofore furnished to you
(the "Power of Attorney"), appointing Xxxxx X. Xxxxx and Xxxxx X.
X'Xxxxx, and each of them, as such Selling Stockholder's
attorneys-in-fact (each an "Attorney-in-Fact") with authority to
execute and deliver this Agreement on behalf of such Selling
Stockholder, to determine the purchase price to be paid by the
Underwriters and the International Underwriters to the Selling
Stockholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Stockholder
hereunder and otherwise to act on behalf of such Selling Stockholder
in connection with the transactions contemplated by this Agreement,
the International Underwriting Agreement and the Custody Agreement;
and
(i) The Shares represented by the certificates held in custody
for such Selling Stockholder under the Custody Agreement are subject
to the interests of the Underwriters hereunder and the International
Underwriters under the International Underwriting Agreement; the
arrangements made by such Selling Stockholder for such custody, and
the appointment by such Selling Stockholder of the Attorneys-in-Fact
by the Power of Attorney, are to that extent irrevocable; the
obligations of such Selling Stockholder hereunder shall not be
terminated by operation of law, whether by the death or incapacity of
any individual Selling Stockholder or, in the case of an estate or
trust, by the death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a partnership
or corporation, by the dissolution of such partnership or corporation,
or by the occurrence of any other event; if any individual Selling
Stockholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be terminated, or
if any such partnership or corporation should be dissolved, or if any
other such event should occur, before the delivery of the Shares
hereunder, certificates representing the Shares shall be delivered by
or on behalf of such Selling Stockholder in accordance with the terms
and conditions of this Agreement, of the International Underwriting
Agreement and of the Custody Agreement; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid
as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, (a) each
of the Selling Stockholders agrees, severally and not jointly, to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly,
to purchase from each of the Selling Stockholders, at a purchase price per
share as set forth in Schedule I hereto, the number of Firm Shares (to be
adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to
10
be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule V hereto by a fraction, the numerator of which
is the aggregate number of Firm Shares to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule II hereto
and the denominator of which is the aggregate number of Firm Shares to be
purchased by all of the Underwriters from all of the Selling Stockholders
hereunder and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Shares as provided below,
the Selling Stockholder specified in Schedule V hereto (the "Specified
Selling Stockholder") agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Specified Selling Stockholder, at the purchase price per share as set forth
in Schedule I hereto, that portion of the number of Optional Shares as to
which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule II hereto and the
denominator of which is the maximum number of Optional Shares that all of
the Underwriters are entitled to purchase hereunder.
The Specified Selling Stockholder in Schedule V hereto hereby
grants to the Underwriters the right to purchase at their election up to
2,436,000 Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering overallotments in the
sale of the Firm Shares. Any such election to purchase Optional Shares may
be exercised from time to time by written notice from you to an
Attorney-in-Fact, given within a period of 30 calendar days after the
Execution Time and setting forth the aggregate number of Optional Shares to
be purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event (i) earlier than the First
Time of Delivery (as defined in Section 4 hereof) or, (ii) unless you and
an Attorney-in-Fact otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. OFFERING OF SHARES. Upon the authorization by you of the
release of the Firm Shares, the several Underwriters propose to offer the
Firm Shares for sale upon the terms and conditions set forth in the Final
Prospectus.
4. DELIVERY AND PAYMENT. Delivery of and payment for the Firm
Shares shall be made on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Selling Stockholders or as provided in Section 9
hereof (such date and time of delivery and payment for the Firm Shares
being herein called the "First Time of Delivery"). Delivery of and payment
for the Optional Shares shall be on the date and at the time specified by
you as provided above in the written notice given by you of the
Underwriters' election to purchase the Optional Shares, or at such other
time and date as you and an Attorney-in-Fact may agree upon in writing.
Such date and time of delivery of the Optional Shares, if not the First
Time of Delivery, being herein called the "Second Time of Delivery," and
each time and date for delivery is herein called a "Time of Delivery".
Delivery of the Shares shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Custodian, by wire transfer in the
funds specified in Schedule I. Delivery of the Shares shall be made at
such location as the Representatives shall reasonably designate at least
one business day in advance of the Time of Delivery for such Shares and
payment for the Shares shall be made at the office specified in
11
Schedule I hereto. Certificates in definitive form for the Shares shall be
registered in such names and in such denominations as the Representatives
may request not less than two full business days in advance of the Time of
Delivery for such Shares.
Each of the Selling Stockholders agrees to have the Firm Shares
available for inspection, checking and packaging by the Representatives in
New York, New York, not later than 1:00 PM on the business day prior to the
First Time of Delivery. The Specified Selling Stockholder agrees to have
the Optional Shares available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on the
business day prior to the Time of Delivery for such Shares.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Shares, the Company will not file any amendment
of the Registration Statement or supplement to the Basic Prospectus
(including the Final Prospectus or any Preliminary Final Prospectus)
unless the Company has furnished to you a copy for your prompt review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence reasonably satisfactory to
the Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Shares, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 5, an amendment or supplement which will correct
such statement or omission
12
or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earning statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and, prior to 10:00
a.m., New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, copies of the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing any
Agreement Among Underwriters, this Agreement, the Blue Sky Memorandum
and any other documents in connection with the offering, purchase,
sale and delivery of the Shares. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive
order to close.
(e) Until the date set forth on Schedule I hereto, except for
securities issuable upon conversion of (i) shares of the Company's
Class B Common Stock (the "Class B Common Stock"), (ii) the Company's
41/2% Convertible Subordinated Notes due July 1, 1997 or (iii) the
issuance of shares or options pursuant to employee benefit plans, the
Company will not, without the prior written consent of Xxxxxxx, Xxxxx
& Co., offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce the offering of, any shares of
Stock or any security of the Company substantially similar thereto, or
any other security convertible into or exchangeable for, or that
represents the right to receive, shares of Stock or any security
substantially similar thereto.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters, as to the Shares to be delivered at each
Time of Delivery, to purchase the Shares shall be subject to the accuracy
of the representations and warranties on the part of the Company and of the
Selling Stockholders contained herein as of the Execution Time and such
Time of Delivery, to the accuracy of the statements of the Company and of
the Selling Stockholders made in any certificates pursuant to the
provisions hereof, to the performance by the Company and by each of the
Selling Stockholders of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to
a later time, the Registration Statement will become effective not
later than (i) 6:00 p.m. New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 p.m. New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the
13
Final Prospectus, and any such supplement, shall have been filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have furnished to the Underwriters the
opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx ("Xxxx Xxxxx"),
counsel for the Company, dated such Time of Delivery, to the effect
that:
(i) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by the Company;
(ii) No consent, approval, authorization, order,
registration or qualification of or with any New York or federal
court or governmental agency or body is required for the sale of
the Shares or the consummation by the Company of the transactions
contemplated by the Final Prospectus, this Agreement or the
International Underwriting Agreement, except such as have been
obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by
the Underwriters and the International Underwriters;
(iii) Except as noted below, the last sentence of the first
paragraph, the first sentence of the second paragraph and the
entire third paragraph of the section of the Final Prospectus
relating to the Shares captioned "Certain Considerations --
Taxation of the Company" contain a fair and accurate general
description of the U.S. Federal tax provisions discussed therein.
With respect to the last sentence of the first paragraph of the
section of the Prospectus relating to the Shares captioned
"Certain Considerations -- Taxation of the Company," no opinion
is expressed with respect to whether the exemption of Section 883
of the Internal Revenue Code of 1986 is available or applicable
to the Company or any of its subsidiaries;
(iv) Assuming that New York law is applicable, upon
delivery of the Shares pursuant to this Agreement and the
International Underwriting Agreement and payment therefor as
contemplated herein and therein, good and valid title to the
Shares, free and clear of all liens, encumbrances, equities or
claims, shall be transferred to each of the several Underwriters
and International Underwriters who purchase the Shares in good
faith and without notice of any lien, encumbrance, equity or
claim or any other adverse claim within the meaning of the
Uniform Commercial Code of the State of New York;
(v) The Company is not an "investment company" as such term
is defined in the Investment Company Act;
In addition, such counsel shall state that on the basis of
the participation of such counsel in conferences at which the
contents of the Registration Statement and the Final Prospectus
and related matters were discussed, but
14
without independent verification by such counsel of the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the Final Prospectus, any amendment or
supplement thereto or any documents incorporated by reference in
the Final Prospectus or any amendment or supplement thereto, that
they have no knowledge that (other than the financial statements,
schedules and other financial or statistical data which are or
should be contained therein, as to which such counsel need
express no statement):
(1) The documents incorporated by reference in the
Final Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery,
when they became effective or were filed with the
Commission, as the case may be, (A) did not comply as to
form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and (B) contained
in the case of a registration statement which became
effective under the Act, an untrue statement of a material
fact, or omitted to state a material fact required to be
stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which
were filed under the Exchange Act with the Commission,
contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading;
(2)(A) The Registration Statement and the Final Prospectus
and any further amendment and supplements thereto made by the
Company prior to such Time of Delivery did not comply as to form
in all material respects with the requirements of the Act and the
rules and regulations thereunder; (B) as of their respective
effective dates, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of
Delivery contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that,
as of its date, the Final Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances in which they were
made, not misleading or that, as of such Time of Delivery, the
Final Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery contains an
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and (C)
any amendment to the Registration Statement required to be filed
with the Commission or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Final Prospectus or required to be described in the Registration
Statement or the Final Prospectus which are not filed or
incorporated by reference or described as required.
15
(c) The Company shall have furnished to the Underwriters the
opinion of Xxxxxxx Xxxxx, Esq., General Counsel for the Company, dated
such Time of Delivery, to the effect that:
(i) To the knowledge of such counsel, the Company has all
necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and declarations and
filings with, all federal, state, local and other governmental
authorities, to own, lease, license, and use its properties and
assets and to conduct its business in the manner described in the
Final Prospectus (except for such consents, authorizations,
approvals, orders, licenses, certificates, permits, declarations
and filings, which the failure to have obtained, individually or
in the aggregate, does not and can reasonably be expected in the
future not to have a material adverse effect on the general
affairs, business, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken
as a whole);
(ii) To the knowledge of such counsel, HAL Antillen N.V.
("HAL") has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and declarations
and filings with, all federal, state, local, and other
governmental authorities, to own, lease, license, and use its
properties and assets and to conduct its business in the manner
described in the Final Prospectus (except for such consents,
authorizations, approvals, orders, licenses, certificates,
permits, declarations and filings, which the failure to have
obtained, individually or in the aggregate, does not, and can
reasonably be expected in the future not to, have a material
adverse effect on the general affairs, business, financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole);
(iii) Each of the Subsidiaries has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business which
requires such qualification (except where the failure to be so
qualified or in good standing does not, and can reasonably be
expected in the future not to, have a material adverse effect
upon the general affairs, business, financial position,
shareholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole);
(iv) To the knowledge of such counsel, except as set forth
in Schedule III to this Agreement, all of the issued shares of
capital stock of each Subsidiary are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances,
security interests or claims;
(v) To the knowledge of such counsel, and other than as set
forth in the Final Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company
or any of its Subsidiaries is the subject which, could reasonably
be expected to individually or in the aggregate have a material
adverse effect on the general affairs, business, financial
position, shareholders' equity or results of
16
operations of the Company and its subsidiaries, taken as a whole;
and, to the knowledge of such counsel, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) To the knowledge of such counsel, the compliance by the
Company with all of the provisions this Agreement and the
International Underwriting Agreement and the consummation of the
transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries is bound or to which any of
the property or assets of the Company or any of the Subsidiaries
is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or, to the knowledge of such counsel, any statute or any
order, rule or regulation binding on the Company or any of the
Subsidiaries or any of their properties;
(vii) To the knowledge of such counsel, the Company is not
(A) in violation of, or in default with respect to, any law,
rule, regulation, order, judgment or decree, except as may be
properly described in the Final Prospectus or such as in the
aggregate do not now have, and can reasonably be expected in the
future not to have, a material adverse effect on the general
affairs, business, financial position, shareholders' equity or
results of operations of the Company and the Subsidiaries, taken
as a whole; nor is the Company required to take any action in
order to avoid any such violation or default; (B) in violation or
breach of, or in default with respect to, complying with any
material provision of any contract, agreement, instrument, lease,
license, arrangement or understanding which is material to the
Company and its Subsidiaries, taken as a whole; or (C) in
violation or breach of, or in default with respect to, any term
of its certificate of incorporation (or other charter document)
or by-laws;
(viii) The Company, directly or indirectly, holds good and
marketable title to each of the vessels listed on Schedule IV
hereto, subject only to the liens disclosed on Schedule IV and
maritime liens in the ordinary course of business;
(d) The Company shall have furnished to the Underwriters the
opinion of Xxxxx Xxxxxxx y Xxxxxx, Panamanian counsel for the Company,
dated such Time of Delivery, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Republic of Panama, with power and authority (corporate and
other) to own, lease, license and use its properties and conduct
its business as described in the Final Prospectus;
(ii) This Agreement and the International Underwriting
Agreement have been duly authorized by the Company;
17
(iii) No consent, approval, authorization, order,
registration or qualification of or with any Panamanian court or
governmental agency or body is required for the sale of the
Shares, or the consummation by the Company of the transactions
contemplated by this Agreement and the International Underwriting
Agreement, except such as have been obtained under the Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the
International Underwriters;
(iv) The Company has an authorized capitalization as set
forth or incorporated by reference in the Final Prospectus, and
all of the issued shares of capital stock of the Company
including the Shares being delivered at such Time of Delivery
have been duly and validly authorized and issued and are fully
paid and non-assessable; and
(v) To the knowledge of such counsel, the Company is not in
violation of, or in default with respect to, any law, rule,
regulation, order, judgment or decree, except as may be properly
described in the Final Prospectus or such as in the aggregate do
not now have, and can reasonably be expected in the future not to
have, a material adverse effect on the general affairs, business,
financial position, shareholders' equity or results of operations
of the Company and the Subsidiaries, taken as a whole.
(vi) The Stock conforms in all material respects to the
description of the Stock in the Final Prospectus.
(vii) Good and valid title to the Shares, free and clear of
all liens, encumbrances, equities or claims, has been transferred
to each of the several Underwriters or International
Underwriters, as the case may be, who purchase the Shares in good
faith and without notice of any such lien, encumbrance, equity or
claim or any other adverse claim.
(e) The Company shall have furnished to the Representatives the
opinion of Xxxxxxxx Chance, counsel to HAL, dated such Time of
Delivery, to the effect that:
(i) HAL is a "naamloze vennootschap" (company with limited
liability) duly organized and validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to
own, lease, license and use its properties and conduct its
business as described in the Final Prospectus; and
(ii) All of the issued shares of capital stock of HAL have
been duly and validly authorized and issued, and are fully paid.
(f) The Company shall have furnished to the Underwriters the
opinions of local counsel, each dated such Time of Delivery, to the
effect that each vessel listed on Schedule IV hereto is duly
registered, except as noted on Schedule IV, under the laws
18
of the jurisdiction listed opposite its name on Schedule IV.
Each such opinion described in 6(b), (c), (d), (e) and (f) above
shall be in form and substance reasonably satisfactory to the
Representatives. In rendering such opinions described in 6(b), (c),
(d), (e) and (f) above, each such counsel may rely (A) as to matters
involving the application of laws other than the laws of the
jurisdiction in which such counsel practices, to the extent such
counsel deems proper and to the extent specified in such opinion, upon
an opinion or opinions (in form and substance reasonably satisfactory
to counsel for the Underwriters) of other counsel, reasonably
acceptable to counsel for the Underwriters, familiar with the
applicable laws; (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company
or of any of the Subsidiaries; and (C) to the extent such counsel
deems proper, upon written statements or certificates of officers of
departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company or
of any of the Subsidiaries, provided that copies of any such
statements or certificates shall be delivered to counsel for the
Underwriters, and on the absence of a telegram from the Commission.
References to the Final Prospectus in paragraphs 6(b) through (e)
include any amendments or supplements thereto filed prior to such Time
of Delivery.
(g) The respective counsel for each of the Selling Stockholders,
as indicated in Schedule V hereto, each shall have furnished to you
their written opinion with respect to each of the Selling Stockholders
for whom they are acting as counsel, dated such Time of Delivery, in
form and substance reasonably satisfactory to you, to the effect that:
(i) A Power of Attorney and a Custody Agreement have been
duly executed and delivered by such Selling Stockholder and
constitute valid and binding agreements of such Selling
Stockholder in accordance with their terms, subject to
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and general equitable principles;
(ii) This Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on behalf
of such Selling Stockholder; and the sale of the Shares to be
sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement and the International Underwriting Agreement, the
Power-of-Attorney and the Custody Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any terms or
provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to which
such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets of
such Selling Stockholder is subject, nor will such action result
in any violation of the provisions of the Articles of
Incorporation, By-laws, governing trust indenture or other
governing instrument, as the case may be, of such Selling
Stockholder or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over such Selling Stockholder
19
or the property of such Selling Stockholder, except that such
counsel need express no opinion as to compliance with the Act or
any state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters;
(iii) To the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental
agency or body is required for the consummation of the
transactions contemplated by this Agreement and the International
Underwriting Agreement in connection with the Shares to be sold
by such Selling Stockholder hereunder, except such consent,
approvals, authorizations or orders which have been duly obtained
and are in full force and effect, such as have been obtained
under the Act and such as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution
of such Shares by the Underwriters or the International
Underwriters;
(h) Holland & Knight, special U.S. counsel to the Selling
Stockholders, shall have furnished to you their written opinion, dated
such Time of Delivery, in form and substance reasonably satisfactory
to you, to the effect that:
(i) Immediately prior to such Time of Delivery, such
Selling Stockholder had good and valid title to the Shares to be
sold at such Time of Delivery by such Selling Stockholder under
this Agreement and the International Underwriting Agreement, free
and clear of all liens, encumbrances, equities or claims, and
full right, power and authority to sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder
hereunder and thereunder; and
(ii) Good and valid title to such Shares, free and clear of
all liens, encumbrances, equities or claims, has been transferred
to each of the several Underwriters or International
Underwriters, as the case may be, who have purchased such Shares
in good faith and without notice of any such lien, encumbrance,
equity or claim or any other adverse claim within the meaning of
the Uniform Commercial Code.
In rendering the opinion in paragraph (iv), such counsel may
rely upon a certificate of such Selling Stockholder in respect of
matters of fact as to ownership of, and liens, encumbrances,
equities or claims on, the Shares sold by such Selling
Stockholder, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
certificate;
(i) The Underwriters shall have received from Xxxxxxxx &
Xxxxxxxx, counsel for the Underwriters, such opinion or opinions,
dated such Time of Delivery, with respect to the validity of the
Shares, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(j) The Company shall have furnished to the Underwriters a
certificate of the
20
Company, dated such Time of Delivery and signed by the Chairman of the
Board or the President and the principal financial or accounting
officer of the Company, and the Selling Stockholders shall have
furnished to the Underwriters at each Time of Delivery at which such
Selling Stockholder is delivering Shares, certificates of the Selling
Stockholders, respectively, dated such Time of Delivery, satisfactory
to you as to the accuracy of the representations and warranties of the
Company and the Selling Stockholders, respectively, herein at and as
of such Time of Delivery as to the performance by the Company and the
Selling Stockholders of all of their respective obligations hereunder
to be performed at or prior to such Time of Delivery and as to such
other matters as you may reasonably request and the Company shall have
furnished or caused to be furnished a certificate to the effect that
the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplement to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of such Time of Delivery with the same effect as if made
on such Time of Delivery and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Time of Delivery;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent audited financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in
the condition (financial or other), earnings, business or
properties of the Company and its Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(k) At such Time of Delivery, Price Waterhouse LLP shall have
furnished to the Underwriters a letter or letters (which may refer to
letters previously delivered to one or more of the Representatives),
dated as of such Time of Delivery, in form and substance satisfactory
to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements and
schedules included or incorporated in the Registration Statement
and the Final Prospectus and reported on by them comply in form
in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified
21
procedures (but not an examination in accordance with generally
accepted auditing standards) which could not necessarily reveal
matters of significance with respect to the comments set forth in
such letter, a reading of the minutes of the meetings of the
stockholders, directors and executive and audit committees of the
Company and its subsidiaries; and inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent
audited financial statements in or incorporated in the Final
Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects
with applicable accounting requirements and with the
published rules and regulations of the Commission with
respect to financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange Act; and
said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date
of the most recent financial statements (other than any
capsule information), audited or unaudited, in or
incorporated in the Registration Statement and the Final
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the
letter, in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Final Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or net assets
as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or for the
period from the date of the most recent financial statements
included or incorporated in the Registration Statement and
the Final Prospectus to such specified date there were any
decreases, as compared with the corresponding period in the
preceding year in consolidated net revenues, operating
income, net income or earnings per share, except in all
instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final
22
Prospectus do not agree with the amounts set forth in the
unaudited financial statements for the same periods or were
not determined on a basis substantially consistent with that
of the corresponding amounts in the audited financial
statements included or incorporated in the Registration
Statement and the Final Prospectus.
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries which is subject to the Company's
system of internal accounting controls) set forth in the
Registration Statement and the Final Prospectus, including the
information included or incorporated in Items 6, 7 and 11 of the
Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal
interpretation; and
(iv) if pro forma financial statements are included or
incorporated in the Registration Statement and the Final
Prospectus, on the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the acquired
company who have responsibility for financial and accounting
matters, and proving the arithmetic accuracy of the application
of the pro forma adjustments to the historical amounts in the pro
forma financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements do
not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (j) include
any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Price Waterhouse LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time,
in form and substance satisfactory to the Representatives, to the
effect set forth above.
(l) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (k) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries, taken as a
whole, the effect of which, in any case referred to in clause (i) or
(ii) above,
23
is, in the reasonable judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Shares as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(m) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the
direction of the possible change.
(n) Prior to such Time of Delivery, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(o) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities in New York declared by either
Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if
the effect of any such event specified in this clause (iv) is in your
reasonable judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such Time of Delivery on
the terms and in the manner contemplated by the Prospectus.
(p) The Representatives shall have received the written
agreement of each of Xxx Xxxxxx and Xxxxx Xxxxxx, in form and
substance satisfactory to the Representatives, to the effect that, for
a period of 365 days after the date of the Final Prospectus, such
person has agreed (i) not to offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering
of, any shares of Stock or Class B Common Stock or any security of the
Company substantially similar thereto, or any other security
convertible into or exchangeable for, or that represents the right to
receive, shares of Stock or Class B Common Stock or any security of
the Company substantially similar thereto, other than the conversion
of shares of Class B Stock into shares of Stock, without the prior
written consent of Xxxxxxx, Sachs & Co. and (ii) not to consent to any
disposition of the nature described in clause (i) of this Section 6(p)
by any trust that owns shares of Stock or Class B Common Stock or any
security of the Company substantially similar thereto, or any other
security convertible into or exchangeable for, or that represents the
right to receive, shares of Stock or Class B Common Stock or any
security of the Company substantially similar thereto, over which such
person has voting or dispositive power, other than the conversion of
shares of Class B Stock into shares of Stock, without the prior
written consent of Xxxxxxx, Xxxxx & Co.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and
24
certificates mentioned above or elsewhere in this Agreement shall not be in
all material respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, such Time of Delivery by the Representatives. Notice of
such cancellation shall be given to the Company and the Selling
Stockholders in writing or by telephone or telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Shares provided for herein is not consummated by reason of any failure on
the part of the Company or any Selling Stockholder to perform any covenant
or agreement or satisfy any condition of this Agreement to be performed or
satisfied by it or any Selling Stockholder, the sole liability of the
Company to each of the Underwriters, in addition to the obligations of the
Company pursuant to Sections 5(d) and 8, will be for the Company to
reimburse the Underwriters for all out-of-pocket expenses approved in
writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of the Shares not so delivered. Otherwise, if this Agreement
shall be terminated, the Company shall not then be under any liability to
any Underwriter except as provided in Sections 5(d) and 8 hereof. If this
Agreement shall be terminated as provided herein, the Selling Stockholders
shall not have any liability to the Underwriters except as provided in
Section 8 hereof.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Shares
as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein; and, provided, further, that the
Company will not be liable to any Underwriter with respect to any loss,
claim, damage or liability arising out of or based on any untrue statement
or alleged untrue statement or omission or alleged omission to state a
material fact in the Preliminary Final Prospectus which is corrected in the
Final Prospectus if the person asserting any such loss, claim, damage or
liability purchased Shares from such Underwriter but was not sent or given
a copy of the Final Prospectus at or prior to the written confirmation of
the sale of such Shares to such person. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
25
(b) Each of the Selling Stockholders, severally in proportion to
the number of Shares to be sold by such Selling Stockholder, and not
jointly, agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration
of the Shares as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, 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 for the
registration of the Shares as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by
such Selling Stockholder expressly for use therein, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
such Selling Stockholder will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein;
and, provided, further, that such Selling Stockholder will not be liable to
any Underwriter with respect to any loss, claim, damage or liability
arising out of or based on any untrue statement or alleged untrue statement
or omission or alleged omission to state a material fact in the Preliminary
Final Prospectus which is corrected in the Final Prospectus if the person
asserting any such loss, claim, damage or liability purchased Shares from
such Underwriter but was not sent or given a copy of the Final Prospectus
at or prior to the written confirmation of the sale of such Shares to such
person. This indemnity agreement will be in addition to any liability
which the Selling Stockholders may otherwise have.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company and each Selling Stockholder, and each of their
respective directors and officers and each person who controls the Company
or such Selling Stockholder within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company or such Selling Stockholder, as the case may be, to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in
26
respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation conducted by the Underwriters at the request of the
Company. Notwithstanding anything to the contrary contained herein, an
indemnifying party will not be liable for any settlement of any claim or
action effected without its prior written consent.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each indemnifying party
agrees to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which an indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Stockholders on the one hand and by the Underwriters on the
other from the offering of the Shares. If the allocation provided by the
immediately preceding sentence is unavailable for any reason or if the
indemnified party failed to give the notice required under subsection (d)
above, then each indemnifying party shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Selling Stockholders on the one hand
and of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company and the Selling
Stockholders on the one hand shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses), and benefits
received by the Underwriters on the other hand shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or
27
omission relates to information provided by the Company or the Selling
Stockholders on the one hand or the Underwriters on the other, and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission and the failure of an
indemnified party to give notice under subsection (d) above (to the extent
such failure is prejudicial to an indemnifying party). The Company, each
of the Selling Stockholders and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of this subsection (e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
or any Selling Stockholder within the meaning of either the Act or the
Exchange Act, each officer of the Company or any Selling Stockholder who
shall have signed the Registration Statement and each director of the
Company or any Selling Stockholder shall have the same rights to
contribution as the Company or any Selling Stockholder, as the case may be,
subject in each case to the applicable terms and conditions of this
paragraph (e).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail at a Time of Delivery to purchase and pay for any of the Shares
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Shares set forth opposite their names in
Schedule II hereto bears to the aggregate amount of Shares set forth
opposite the names of all the remaining Underwriters) the Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Shares
which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Shares set forth in
Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Shares, and if such nondefaulting Underwriters do not purchase all the
Shares, this Agreement will terminate without liability to any
nondefaulting Underwriter, the Company or any Selling Stockholder. In the
event of a default by any Underwriter as set forth in this Section 9, such
Time of Delivery shall be postponed for such period, not exceeding seven
days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company, any Selling Stockholder and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements
of the Company, the Selling Stockholders or their respective officers and
of the Underwriters 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 any Underwriter, any Selling Stockholder or the Company or any
of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Shares. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. NOTICES. In all dealings hereunder, you shall act on behalf
of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by you jointly or by Xxxxxxx, Sachs & Co. on
behalf of you as the Representatives; and in all dealings with any Selling
Stockholder hereunder, you and the Company shall be entitled to act and
rely upon any
28
statement, request, notice or agreement on behalf of such Selling
Stockholder made or given by any or all of the Attorneys-in-Fact for such
Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to the Underwriters in care of Xxxxxxx,
Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Registration Department, if to any Selling Stockholder shall be delivered
or sent by mail, telex or facsimile transmission to Holland & Knight, 000
Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 with copies to MacFarlanes, 00
Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX Xxxxxxx; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address
of the Company set forth in the Registration Statement, Attention: Legal
Department; provided, however, that any notice to an Underwriter pursuant
to Section 8(d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire,
which address will be supplied to the Company or the Selling Stockholders
by Xxxxxxx, Xxxxx & Co. upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
12. SUCCESSORS. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and the Selling
Stockholders and, to the extent provided in Section 8 hereof, the officers
and directors and each person who controls the Company, any Selling
Stockholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one
and the same instrument.
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the eight counterparts hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours,
Carnival Corporation
By:.....................................
Name:
Title:
Xxx Xxxxxx
Arison Foundation, Inc.
The Royal Bank of Scotland Trust
Company (Jersey) Limited, as Trustee
for the Xxx Xxxxxx Charitable Trust
By:.....................................
Name:
Title:
As Attorney-in-Fact acting on
behalf of each of the Selling
Stockholders named in Schedule V to
this Agreement.
30
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: . . . . . . . . . . . . . . . . . .
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
31
SCHEDULE I
Underwriting Agreement dated November __, 1996
Registration Statement No. 333-13997
Representative(s): Xxxxxxx, Xxxxx & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Title, Purchase Price and Description of Shares:
Title: Class A Common Stock, par value $.01 per share
Number of shares: 16,240,000
Maximum number of shares of Optional Shares to cover
overallotments: 2,436,000
Purchase price per share: $.......
Closing Date, Time and Location: November __, 1996, 9:30 a.m., Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
Specified Funds for Payment of Purchase Price: same-day funds
Type of Offering: Non-Delayed Offering
Date referred to in Section 5(e) after which the Company may offer or sell
shares of Class A Common Stock or securities described in Section 5(e)
without the consent of Xxxxxxx, Sachs & Co.: ninety (90) days after the
date of the Underwriting Agreement.
Modification of items to be covered by the letter from Price Waterhouse LLP
delivered pursuant to Section 6(k) at the Execution Time: None
1
SCHEDULE II
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares to Maximum Option
Underwriter be Purchased Exercised
----------- --------------- ------------------
Xxxxxxx, Xxxxx & Co . . . . . . . .
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc. . . . . . . . .
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated . . . . . .
---------- ----------
Total . . . . . . . . . . . . . 16,240,000 2,436,000
---------- ----------
---------- ----------
SCHEDULE III
SUBSIDIARY CAPITAL
STOCK
OWNERSHIP
Carnival Corporation ("CCL")....................................... _____
HAL Antillen N.V. ("HAL").......................................... CCL*
Festivale Maritime Limited......................................... CCL
Celebration Cruises Inc............................................ CCL
Tropicale Cruises Inc.............................................. CCL
Jubilee Cruises Inc................................................ CCL
HAL Shipping Ltd................................................... HAL
Wind Surf Limited.................................................. HAL
Windstar Limited................................................... WSCL
Wind Spirit Limited................................................. WSCL
Windstar Sail Cruises Limited ("WSCL").............................. HAL
Futura Cruises, Inc................................................. CCL
Utopia Cruises Inc.................................................. CCC
-------------
* The shares owned by CCL are subject to a pledge in favor of Citibank,
N.A.
1
SCHEDULE IV
JURISDICTION OF
VESSELS REGISTRATION LIENS
------- --------------- -----
I. Carnival Cruise Lines
1. Celebration............ Liberia First Preferred Ship
Mortgage in favor of the
Swedish National Dept
Office.
2. Jubilee................ Panama None.
3. Tropicale.............. Liberia None.
4. Fantasy................ Liberia First Preferred Ship
Mortgage of Finnish
Export Credit Limited.
5. Festivale.............. Bahamas None.
6. Holiday................ Panama None.
7. Ecstasy................ Liberia First Preferred Ship
Mortgage in favor of
Finnish Export Credit
Limited.
8. Sensation.............. Panama None.
9. Fascination............ Panama None.
10. Inspiration............ Panama None.
11. Imagination............ Panama None.
12. Carnival Destiny....... Panama None.
II. Holland America Line
1. Westerdam.............. Netherlands Mortgage in favor of
Kreditanstalt fur
Xxxxxxxxxxxx.
0. Noordam................ Netherlands None.
3. Nieuw Amsterdam........ Netherlands None.
4. Rotterdam.............. Netherlands None.
1
5. Statendam............... Bahamas None.
6. Maasdam................. Bahamas None.
7. Ryndam.................. Bahamas None.
8. Veendam................. Bahamas None.
III. Windstar Sail Cruises
1. Wind Spirit............ Bahamas Mortgage in favor of
Banque Francaise du
Commerce Exterieur
("BFCE") and mortgage
in favor of Banque
Nationale de Paris.
2. Wind Song.............. Bahamas Mortgage in favor of
BFCE.
3. Wind Star ............. Bahamas Mortgage in favor of
BFCE.
SCHEDULE V
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
--------------- ------------------
The Selling Stockholders:
Xxx Xxxxxx(a) 12,180,000 2,436,000
Arison Foundation, Inc.(b) 2,540,000 0
The Royal Bank of Scotland Trust
Company (Jersey) Limited, as
Trustee for the Xxx Xxxxxx
Charitable Trust(c)
1,520,000 0
---------- ---------
Total 16,240,000 2,436,000
---------- ---------
---------- ---------
(a) This Selling Stockholder is represented by Holland & Knight of
Miami, Florida.
(b) This Selling Stockholder is represented by Holland & Knight of
Miami, Florida.
(c) This Selling Stockholder is represented by Mourant du Feu & Jeune
of Jersey, Channel Islands and Holland & Knight of Miami,
Florida.
