1
EXHIBIT 1.1
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(a Delaware corporation)
25,654,399 SHARES OF COMMON STOCK, $1.00 PAR VALUE
U.S. Purchase Agreement
[ ], 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇, Sachs & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "SELLING
STOCKHOLDERS") of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a Delaware corporation (the "COMPANY"),
propose to sell to the several Underwriters listed in Schedule I hereto (the
"UNDERWRITERS"), an aggregate of 23,088,959 shares of Common Stock, par value
$1.00 per share, of the Company (the "UNDERWRITTEN SHARES") and, for the sole
purpose of covering over-allotments in connection with the sale of the
Underwritten Shares, at the option of the Underwriters, up to an additional
3,463,344 shares of Common Stock of the Company (the "OPTION SHARES"). The
Underwritten Shares and the Option Shares are herein referred to as the
"SHARES". The outstanding shares of Common Stock of the Company are herein
referred to
2
as the "STOCK". The Stock, including the Shares, has attached thereto rights
(the "RIGHTS") to purchase one ten-thousandth of a share of Series A Junior
Participating Preferred Stock for $225 per share exercisable only upon the
occurrence of certain events. The Rights have been issued pursuant to a Rights
Agreement (the "RIGHTS AGREEMENT") dated as of December 14, 1995 between the
Company and The First National Bank of Boston, as Rights Agent.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Shares and the attached
Rights. The registration statement as amended at the time when it shall become
effective including information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act, is referred to in this Agreement as the "REGISTRATION
STATEMENT", and the prospectus in the form first used to confirm sales of Shares
is referred to in this Agreement as the "PROSPECTUS". If the Company has filed
an abbreviated registration statement to register additional shares of Stock
pursuant to Rule 462(b) and under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference to the term "Registration Statement" shall be
deemed to include such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "EXCHANGE ACT") that are deemed to be
incorporated by reference therein.
The Company and each of the Selling Stockholders hereby agrees with the
Underwriters as follows:
1. Each of the Selling Stockholders agrees, severally and not
jointly, to sell the Underwritten Shares to the several Underwriters as
hereinafter provided, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from each of
the Selling Stockholders at a purchase price per share of $[ ] (the "PURCHASE
PRICE") the number of Underwritten Shares
2
3
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Underwritten Shares to be sold by each of
the Selling Stockholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Underwritten Shares to be purchased by such Underwriter as set forth opposite
the name of such Underwriter in Schedule I hereto and the denominator of which
is the aggregate number of Underwritten Shares to be purchased by all the
Underwriters from all the Selling Stockholders hereunder.
In addition, each of the Selling Stockholders agrees to, severally and
not jointly, sell the Option Shares to the several Underwriters as hereinafter
provided, and each Underwriter on the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
shall have the option to purchase, severally and not jointly, from each of the
Selling Stockholders at the Purchase Price that portion of the number of Option
Shares set forth opposite such Selling Stockholder's name in Schedule II hereto
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying the number of Option
Shares set forth opposite such Selling Stockholder's name in Schedule II by a
fraction, the numerator of which is the product of (i) the aggregate number of
Underwritten Shares to be purchased by such Underwriter as set forth opposite
the name of such Underwriter in Schedule I hereto and (ii) the total number of
Option Shares to be purchased by the Underwriters and the denominator of which
is the product of (i) the number of Underwritten Shares to be purchased by all
the Underwriters from all the Selling Stockholders hereunder and (ii) the total
number of Option Shares set forth in Schedule II. Any such election to purchase
Option Shares shall be made in proportion to the number of Option Shares to be
sold by each Selling Stockholder.
The Underwriters may exercise the option to purchase the Option Shares
at any time from time to time on or before the thirtieth day following the date
of this Agreement, by written notice from the Representatives to the Selling
Stockholders and the Company. Such notice shall set forth the aggregate number
of Option Shares as to which the option is being exercised and the date and time
when the Option Shares are to be delivered and paid for which may be the same
date and time as the Closing Date (as hereinafter defined) but shall not be
earlier than the Closing Date nor later than the tenth full Business Day (as
hereinafter defined) after the date of such notice (unless such time and date
are postponed in accordance with the provisions of Section 9 hereof). Any such
notice shall be given at least two Business Days prior to the date and time of
delivery specified therein.
2. The Company and the Selling Stockholders understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
(A)
3
4
the Registration Statement has become effective and (B) the parties hereto have
executed and delivered this Agreement, as in the judgment of the Representatives
is advisable and (ii) initially to offer the Shares upon the terms set forth in
the Prospectus.
3. Payment for the Shares shall be made by wire transfer in
immediately available funds to the account specified by the Selling
Stockholders, to you in the case of the Underwritten Shares, at 9:00 A.M., New
York City time, on [ ], 1999, or at such other time on the same or such other
date, not later than the fifth Business Day thereafter, as you and the Selling
Stockholders may agree upon in writing or, in the case of the Option Shares, on
the date and time specified by you in the written notice of the Underwriters'
election to purchase such Option Shares. The time and date of such payment for
the Underwritten Shares are referred to herein as the "CLOSING DATE" and the
time and date for such payment for the Option Shares, if other than the Closing
Date, are herein referred to as the "ADDITIONAL CLOSING DATE". As used herein,
the term "BUSINESS DAY" means any day other than a day on which banks are
permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
you for the respective accounts of the several Underwriters of the Shares to be
purchased on such date registered in such names and in such denominations as you
shall request in writing not later than two full Business Days prior to the
Closing Date or the Additional Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Shares duly paid by the Selling Stockholders. The certificates for the
Shares will be made available for inspection and packaging by you at the office
of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ not
later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date or the Additional Closing Date, as the case may be.
4. (a) The Company represents and warrants to each Underwriter
and the Selling Stockholders that:
(i) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the
knowledge of the Company, threatened by the Commission; and
the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as
the case may be, in all material respects with the Securities
Act and do not and will not, as of the applicable
4
5
effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, 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 the Prospectus, as amended or
supplemented, if applicable, at the Closing Date or Additional
Closing Date, as the case may be, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall
not apply to statements or omissions in the Registration
Statement and any amendment thereto or the Prospectus and any
amendment or supplement thereto made in reliance upon and in
conformity with information relating to (x) any Underwriter
furnished to the Company in writing by such Underwriter
through you expressly for use therein and (y) any Selling
Stockholder furnished to the Company in writing by such
Selling Stockholder expressly for use therein (the "SELLING
STOCKHOLDER INFORMATION");
(ii) the documents incorporated by reference in
the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material
respects to the requirements of the Exchange Act, and none of
such documents when they became effective or were filed with
the Commission contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus, when
such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act,
and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(iii) except as noted therein, the consolidated
financial statements, and the related notes thereto,
incorporated by reference in the Registration Statement and
the Prospectus present fairly in all material respects the
consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the
results of their operations and changes in their consolidated
cash flows for the periods specified; and said financial
statements
5
6
have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the
supporting schedules incorporated by reference in the
Registration Statement present fairly in all material respects
the information required to be stated therein; and the pro
forma financial information, and the related notes thereto,
incorporated by reference in the Registration Statement and
the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the Exchange
Act, as applicable;
(iv) since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material change in the
capital stock of the Company or long-term debt of the Company
and its consolidated subsidiaries taken as a whole or any
material adverse change, or any known development involving
the reasonable likelihood of a prospective material adverse
change, in the business, operations or financial condition, of
the Company and its consolidated subsidiaries, taken as a
whole, otherwise, in each case, than as set forth or
contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Company nor any of
the consolidated subsidiaries listed on Appendix A hereto (the
"SIGNIFICANT SUBSIDIARIES") has entered into any transaction
or agreement (whether or not in the ordinary course of
business) material to the Company and its consolidated
subsidiaries taken as a whole;
(v) the Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, 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, so as to require such
qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect
on the Company and its consolidated subsidiaries, taken as a
whole;
(vi) each of the Company's Significant
Subsidiaries has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction
of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Prospectus; and, except as set forth
6
7
in Exhibit 22 to the Company's Annual Report on Form 10-K for
the year ended December 31, 1998, all the outstanding shares
of capital stock of each Significant Subsidiary of the Company
have been duly authorized and validly issued, are fully-paid
and non-assessable, and (except, in the case of foreign
subsidiaries, for directors' qualifying shares) are owned by
the Company, directly or indirectly, free and clear of all
liens, encumbrances, security interests and claims;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the Company has an authorized capitalization
as set forth in the Prospectus as of the dates provided
therein and such authorized capital stock conforms as to legal
matters to the description thereof set forth in the
Prospectus, and all of the outstanding shares of capital stock
of the Company (including the Shares) have been duly
authorized and validly issued, are fully-paid and
non-assessable and are not subject to any pre-emptive or
similar rights; and, except as described in or expressly
contemplated by the Prospectus, there are no outstanding
rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other
equity interest in the Company or any of its subsidiaries, or
any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any
capital stock of the Company or any such subsidiary, any such
convertible or exchangeable securities or any such rights,
warrants or options;
(ix) the Rights Agreement has been duly
authorized, executed and delivered by the Company; the Rights
have been duly authorized and validly issued by the Company;
and the Series A Junior Participating Preferred Stock has been
duly authorized by the Company and validly reserved for
issuance upon the exercise of the Rights and, when issued in
accordance with the terms of the Rights Agreement, will be
validly issued, fully paid and non-assessable;
(x) neither the Company nor any of its
Significant Subsidiaries is, or with the giving of notice or
lapse of time or both would be, in violation of or in default
under, its Certificate of Incorporation or By-Laws or any
material indenture, mortgage,
7
8
deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except for violations
and defaults which individually and in the aggregate are not
material to the Company and its consolidated subsidiaries
taken as a whole; the performance by the Company of its
obligations under this Agreement and the consummation of the
transactions contemplated herein will not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will any such action result in
any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or any applicable
law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the
Company, its Significant Subsidiaries or any of their
respective properties; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for
the consummation by the Company of the transactions
contemplated by this Agreement, except such consents,
approvals, authorizations, orders, registrations or
qualifications as have been obtained under the Securities Act
and as may be required under state securities or Blue Sky Laws
in connection with the purchase and distribution of the Shares
by the Underwriters;
(xi) other than as set forth or contemplated in
the Prospectus, there are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to
which the Company or any of its Significant Subsidiaries is or
may be a party or to which any property of the Company or any
of its Significant Subsidiaries is or may be the subject
which, if determined adversely to the Company or any of its
Significant Subsidiaries, could individually or in the
aggregate reasonably be expected to have a material adverse
effect on the business, operations, or financial condition of
the Company and its consolidated subsidiaries, taken as a
whole, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
8
9
and there are no contracts or other documents that are
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(xii) no person has the right to require the
Company to register any securities for offering and sale under
the Securities Act by reason of the filing of the Registration
Statement with the Commission or the sale of the Shares by the
Selling Stockholders pursuant hereto; and
(xiii) the Company has not taken nor will it take,
directly or indirectly, any action designed to, or that might
be reasonably expected to, cause or result in stabilization or
manipulation of the price of the stock.
(b) Each of the Selling Stockholders severally represents
and warrants to, and agrees with, each of the Underwriters and the
Company that:
(i) all consents, approvals, authorizations and
orders necessary for the execution and delivery by such
Selling Stockholder of this Agreement and for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder, have been obtained; and such Selling Stockholder
has full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Shares
to be sold by such Selling Stockholder hereunder; this
Agreement has been duly authorized, executed and delivered by
such Selling Stockholder;
(ii) 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 consummation of the transactions herein
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 statute, 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, nor will
such action result in any violation of the Partnership
Agreement of such Selling Stockholder or any statute or any
order, rule or regulation of any court or governmental agency
or body
9
10
having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder;
(iii) such Selling Stockholder has good and valid
title to the Shares to be sold at the Closing Date or
Additional Closing Date, as the case may be, by such Selling
Stockholder hereunder, free and clear of all liens,
encumbrances, equities or adverse claims other than those
created pursuant to this Agreement; such Selling Stockholder
will have, immediately prior to the Closing Date or Additional
Closing Date, as the case may be, good and valid title to the
Shares to be sold at the Closing Date or Additional Closing
Date, as the case may be, by such Selling Stockholder, free
and clear of all liens, encumbrances, equities or adverse
claims other than those created pursuant to this Agreement;
and, upon delivery of the certificates representing such
Shares and payment therefor pursuant hereto, good and valid
title to such Shares, free and clear of all liens,
encumbrances, equities or adverse claims, will pass to the
several Underwriters;
(iv) 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; and
(v) the Selling Stockholder Information does not
and will not, as of the applicable effective date of the
Registration Statement and any amendment thereto, 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 the Selling
Stockholder Information included in the Prospectus, as amended
or supplemented, if applicable, furnished to the Company in
writing by such Selling Stockholder expressly for use therein
at the Closing Date or Additional Closing Date, as the case
may be, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
Each of the Selling Stockholders specifically agrees that the
obligations of such Selling Stockholder hereunder shall not be terminated by
operation of law, whether by dissolution of its partnership, or by the
occurrence of any other event.
10
11
If any such partnership should be dissolved, or if any other such event should
occur, before the delivery of the Shares by it hereunder, certificates
representing such Shares shall be delivered by or on behalf of such Selling
Stockholder in accordance with the terms and conditions of this Agreement.
5. (a) The Company covenants and agrees with each of the several
Underwriters as follows:
(i) to use its reasonable efforts to cause the
Registration Statement to become effective at the earliest
possible time and, if required, to file the final Prospectus
with the Commission within the time periods specified by Rule
424(b) and Rule 430A under the Securities Act and to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; and to
furnish copies of the Prospectus to the Underwriters in New
York City prior to 10:00 A.M., New York City time, on the
Business Day next succeeding the date of this Agreement in
such quantities as the Representatives may reasonably request;
(ii) to deliver, at the expense of the Company,
to you five copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case
including one signed copy and all exhibits and documents
incorporated by reference therein and, during the period
mentioned in Section 5(a)(v) below, to each of the
Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated
by reference therein as you may reasonably request;
(iii) during the period mentioned in Section
5(a)(v) below, before filing any amendment or supplement to
the Registration Statement or the Prospectus, whether before
or after the time the Registration Statement becomes
effective, to furnish to you a copy of the proposed amendment
or supplement for review and not to file any such proposed
amendment or supplement to which the Representatives
reasonably object;
(iv) during the period mentioned in Section
5(a)(v) below, to advise you promptly, and to confirm such
advice in writing (A) when the Registration Statement has
become effective, (B) when
11
12
any amendment to the Registration Statement has been filed or
becomes effective, (C) when any supplement to the Prospectus
or any amended Prospectus has been filed and to furnish you
with copies thereof, (D) of any request by the Commission for
any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for any additional
information, (E) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of
any preliminary prospectus or the Prospectus or the initiation
or threatening of any proceeding for that purpose, and (F) of
the receipt by the Company of any notification with respect to
any suspension of the qualification of the Shares for offer
and sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order, or of
any order preventing or suspending the use of any preliminary
prospectus or the Prospectus, or of any order suspending any
such qualification of the Shares, or notification of any such
order thereof and, if issued, to obtain as soon as possible
the withdrawal thereof;
(v) if, during such period of time after the
first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters a prospectus relating
to the Shares is required by law to be delivered in connection
with sales by the Underwriters or any dealer, any event shall
occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements
therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with
law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Shares
may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, such amendments or supplements
to the Prospectus as may be necessary so that the statements
in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the
Prospectus will comply with law; provided that the preparation
and furnishing of any such amendment or supplement shall be at
the expense of the Underwriters if such amendment or
supplement is required more than 90 days after the first date
of public offering of the Shares;
12
13
(vi) to use reasonable efforts to qualify the
Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall reasonably request and
to continue such qualification in effect so long as reasonably
required for distribution of the Shares; provided that the
Company shall not be required to file a general consent to
service of process in any jurisdiction;
(vii) to make generally available to its security
holders and to you as soon as practicable an earnings
statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(viii) for a period of ten years after the date
hereof, to furnish to you copies of all reports or other
communications (financial or other) furnished to holders of
the Shares, and copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange;
(ix) for a period of 90 days after the date of
the initial public offering of the Shares not to (A) sell,
pledge, assign or transfer or dispose of any equity securities
of the Company or any option, right, warrant or contract to
purchase any equity securities of the Company or any
securities convertible into or exercisable or exchangeable for
any equity security of the Company or (B) enter into any swap
or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of the Stock, whether
any such transaction described in clause (A) or (B) above is
to be settled by delivery of Stock or such other securities,
in cash or otherwise without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), other than (u) any issuances
of Stock, options, phantom stock or other securities or rights
pursuant to any employee or director compensation, option,
savings, benefit or other plan of the Company, (v) hedging
transactions and programs in connection with any such plan,
(w) any issuances upon exercise, conversion or exchange of any
securities or obligations outstanding on the date of this
Agreement, (x) any issuances of equity securities as
consideration for an acquisition, (y) and purchases of stock
or uses of put options or other derivative securities pursuant
to any
13
14
previously announced stock repurchase program and (z) any
issuances of Stock, and securities or agreements with respect
thereto, in the aggregate not greater than 2,000,000 shares of
Stock;
(x) to pay or cause to be paid all costs and
expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the
foregoing, all costs and expenses (A) incident to the
preparation, registration, execution and delivery of the
Shares (other than transfer taxes) and the transfer of shares
of Common Stock between the Managers (as defined in the
International Purchase Agreement dated the date hereof
providing for the offering by the Selling Stockholders of
shares of Common Stock through arrangements with certain
managers outside of the United States and Canada) and the
Underwriters, (B) incident to the preparation, printing and
filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in
each case all exhibits, amendments and supplements thereto),
(C) incurred in connection with the registration or
qualification of the Shares under the laws of such
jurisdictions as you may designate (including reasonable fees
of counsel for the Underwriters and its disbursements), (D)
related to the filing with, and clearance of the offering by,
the National Association of Securities Dealers, Inc., (E) in
connection with the printing (including word processing and
duplication costs) and delivery of this Agreement, the
Preliminary and Supplemental Blue Sky Memoranda and the
furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing
and shipping, as herein provided, (F) any expenses incurred by
the Company in connection with a "road show" presentation to
potential investors, (G) the cost of preparing stock
certificates and (H) the cost and charges of any transfer
agent and any registrar.
(b) Each of the Selling Stockholders covenants and agrees
with each of the several Underwriters as follows:
(i) for a period of 90 days after the date of
the initial public offering of the Shares not to (A) sell,
pledge, assign or transfer or dispose of any equity security
of the Company or any option, right, warrant or contract to
purchase any equity security of the Company or any securities
convertible into or exercisable or exchangeable for any equity
security of the Company or (B) enter
14
15
into any swap or other agreement that transfers, in whole or
in part, any of the economic consequences of ownership of the
Stock, whether any such transaction described in clause (A) or
(B) above is to be settled by delivery of Stock or such other
securities, in cash or otherwise or (C) make any written
demand for the registration of any shares of Stock or any
security convertible into or exercisable or exchangeable for
Stock without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
publicly announce an intention to do so, in each case other
than (x) the Shares to be sold by such Selling Stockholder
hereunder (y) distribution of Stock by the Selling
Stockholders to their respective partners and (z) donations of
Stock to charitable organizations provided that, in the case
of clauses (y) and (z) the recipient of such Stock agrees to
be bound by the foregoing lock-up (including the exceptions
set forth therein); and
(ii) to pay or cause to be paid all taxes, if
any, on the transfer and sale of the Shares being sold by such
Selling Stockholder.
6. The several obligations of the Underwriters hereunder to
purchase the Shares on the Closing Date or the Additional Closing Date, as the
case may be, are subject to the performance by the Company and each of the
Selling Stockholders of their respective obligations hereunder and to the
following additional conditions:
(a) the Registration Statement shall have become
effective (or if a post-effective amendment is required to be filed
under the Securities Act, such post-effective amendment shall have
become effective) not later than 5:00 P.M., New York City time, on the
date hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under
the Securities Act and in accordance with Section 5(a)(i) hereof; and
all requests for additional information shall have been complied with
to your satisfaction;
(b) the respective representations and warranties of the
Company and the Selling Stockholders contained herein are true and
correct on and as of the Closing Date or the Additional Closing Date,
as the case may be, as if made on and as of the Closing Date or the
Additional Closing Date, as the case may be, and each of the Company
and the Selling Stockholders
15
16
shall have complied with all agreements and all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date
or the Additional Closing Date, as the case may be;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date or the Additional Closing Date,
as the case may be, there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any downgrading, (ii) any
intended or potential downgrading or (iii) any review or possible
change that is with negative implications, in the rating accorded any
securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material change
in the capital stock of the Company or long-term debt of the Company
and its consolidated subsidiaries taken as a whole or any material
adverse change, or any known development involving the reasonable
likelihood of a prospective material adverse change, in the business,
operations or financial condition of the Company and its consolidated
subsidiaries, taken as a whole, otherwise, in each case, than as set
forth or contemplated in the Prospectus, the effect of which in your
reasonable judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares on the Closing
Date or the Additional Closing Date, as the case may be, on the terms
and in the manner contemplated in the Prospectus;
(e) you shall have received on and as of the Closing Date
or the Additional Closing Date, as the case may be, (i) a certificate
of an executive officer of the Company satisfactory to you to the
effect set forth in Sections 6(a), 6(b) and 6(c) (with respect to the
respective representations, warranties, agreements and conditions of
the Company) and to the further effect that there has not occurred any
material adverse change, or any known development involving the
reasonable likelihood of a prospective material adverse change, in the
business, operations or financial condition, of the Company and its
consolidated subsidiaries, taken as a whole, from that set forth or
contemplated in the Prospectus and (ii) a certificate of the Selling
Stockholders, satisfactory to you to the effect set forth in Section
6(b) (with respect to the respective representations, warranties,
agreements and conditions of the Selling Stockholders);
16
17
(f) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Acting General Counsel of
the Company, shall have furnished to you his written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, in
form and substance satisfactory to you, 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 its jurisdiction of incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as then amended or
supplemented;
(ii) the Company 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,
so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) other than as set forth or contemplated in
the Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge,
threatened to which the Company is or may be a party or to
which any property of the Company is or may be the subject
which, if determined adversely to the Company, could
individually or in the aggregate reasonably be expected to
have a material adverse effect on the business, operations or
financial condition of the Company and its consolidated
subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are contemplated by
governmental authorities or threatened by others; and such
counsel does not know of any contracts or other documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as
required;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
17
18
(vi) the outstanding shares of capital stock of
the Company (including the Shares) have been duly authorized
and are validly issued, fully paid and non-assessable;
(vii) the statements in the Prospectus under
"Description of Capital Stock", in the Prospectus incorporated
by reference from Item 3 of Part 1 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1998 and
in the Registration Statement in Item 15, insofar as such
statements constitute a summary of the terms of the Stock,
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
terms, legal matters, documents or proceedings;
(viii) such counsel is of the opinion that the
Registration Statement and the Prospectus and any amendments
and supplements thereto (except for the financial statements
and related schedules therein, as to which such counsel need
express no opinion) complied as to form when filed with the
Commission in all material respects with the requirements of
the Securities Act and believes that (except for the financial
statements and related schedules therein, as to which such
counsel need express no belief) each part of the Registration
Statement (including the documents incorporated by reference
therein) and the prospectus included therein when such part of
the Registration Statement became effective did not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the
Prospectus, as amended or supplemented, if applicable, does
not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ix) the Company is not, nor with the giving of
notice or lapse of time or both would not be, in violation of
or in default under, its Certificate of Incorporation or
By-Laws or any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known
to such counsel to which the Company is a party or by which it
or any of its properties is bound, except for violations and
defaults which individually and in the aggregate are not
material to the Company and its consolidated subsidiaries
taken as a whole; and the performance by the
18
19
Company of its obligations under this Agreement and the
consummation of the transactions contemplated herein will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to
which the Company is a party or by which the Company is bound
or to which any of the property or assets of the Company is
subject, nor will any such action result in any violation of
the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, its subsidiaries
or any of their respective properties;
(x) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the consummation
by the Company of the transactions contemplated by this
Agreement, except such consents, approvals, authorizations,
orders, registrations or qualifications as have been obtained
under the Securities Act and as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(xi) the documents incorporated by reference in
the Prospectus or any further amendment or supplement thereto
made by the Company prior to the Closing Date or the
Additional Closing Date, as the case may be (except for the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they were
filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder; and
(xii) the Rights Agreement has been duly
authorized, executed and delivered by the Company; the Rights
have been duly authorized and issued by the Company, and the
Series A Junior Participating Preferred Stock has been duly
authorized by the Company and validly reserved for issuance
upon the exercise of the Rights and, when issued upon such
exercise in accordance with the terms of the Rights Agreement,
will be validly issued, fully paid and non-assessable.
19
20
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Delaware and Massachusetts, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable
laws and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel upon which they
relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon.
With respect to the matters to be covered in Section 6(f)(viii) and
Section 6(f)(xi) above counsel may state his opinion and belief is
based upon his participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto
and review and discussion of the contents thereof but is without
independent check or verification except as specified.
The opinion described above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(g) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling
Stockholders, shall have furnished to the Representatives their written
opinion, dated the Closing Date, or the Additional Closing Date, as the
case may be, in form and substance satisfactory to the Representatives,
to the effect that:
(i) this Agreement has been duly authorized,
executed and delivered by or on behalf of each of the Selling
Stockholders; and
(ii) each Selling Stockholder is the sole record
owner of all of the Underwritten Shares or Option Shares then
to be sold by such Selling Stockholder, each Selling
Stockholder has full partnership power, right and authority to
sell the applicable Shares; upon payment for and delivery of
the Shares in accordance with this Agreement, the Underwriters
will acquire all of the rights of each Selling Stockholder in
the applicable Shares; and (assuming that the Underwriters do
not have notice of any adverse claim to the Shares) the
Underwriters will acquire their interest in such
20
21
Shares free of any adverse claim (within the meaning of the
Uniform Commercial Code as in effect in the State of New
York).
(h) on the date hereof and also on the Closing Date or
Additional Closing Date, as the case may be, KPMG Peat Marwick LLP
shall have furnished to you letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
(i) the Representatives shall have received on and as of
the Closing Date or Additional Closing Date, as the case may be, an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Underwriters, with
respect to the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters; and
(j) on or prior to the Closing Date or Additional Closing
Date, as the case may be, the Company and the Selling Stockholders
shall have furnished to the Representatives such further certificates
and documents as the Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Selling
Stockholder and each Underwriter and each person, if any, who controls any
Selling Stockholder or any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
the legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein and except in the case of any Selling Stockholder or any person
controlling such Selling Stockholder for the Selling Stockholder Information;
provided that the
21
22
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) and, if
required by law, a copy of the Prospectus (as so amended or supplemented) shall
not have been furnished to such person at or prior to the written confirmation
of the sale of such Shares to such person.
Each of the Selling Stockholders severally in proportion to the number
of Shares to be sold by such Selling Stockholder hereunder agrees to indemnify
and hold harmless the Company and each Underwriter and each person, if any, who
controls the Company or any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to each Underwriter and Selling
Stockholder, but only with reference to the Selling Stockholder Information in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus; provided that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased Shares if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus is eliminated or
remedied in the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) and, if required by law, a copy
of the Prospectus (as so amended or supplemented) shall not have been furnished
to such person at or prior to the written confirmation of the sale of such
Shares to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, each Selling Stockholder and each person who controls the Company or
any Selling Stockholder within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company and the Selling Stockholders to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in
22
23
respect of which indemnity may be sought pursuant to the preceding paragraphs of
this Section 7, such person (the "INDEMNIFIED PERSON") shall promptly notify the
person or persons against whom such indemnity may be sought (each an
"INDEMNIFYING PERSON") in writing, provided that the failure of an Indemnified
Person to give notice as provided herein shall not release the Indemnifying
Person of its obligations under this Section 7 and such Indemnifying Persons,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Persons may designate in such proceeding and shall
pay the fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person and not the Indemnifying Persons unless (i) the
Indemnifying Persons and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Persons have failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both an Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that no
Indemnifying Person shall, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters and such control persons
of Underwriters shall be designated in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and any such
separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company shall be
designated in writing by the Company and any such separate firm for the Selling
Stockholders shall be designated in writing by the Selling Stockholders. No
Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, each Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in the first four paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on
23
24
the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other hand shall be
deemed to be in the same respective proportions as the net proceeds from the
offering (before deducting expenses) received by the Selling Stockholders and
the total underwriting discounts and the commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus bear to the aggregate public offering price of the Shares. The
relative fault of the Company and the Selling Stockholders on the one hand and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Selling Stockholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Selling Stockholders or the
Underwriters were treated as one entity for such purposes) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to con tribute pursuant to this
Section 7 are several in proportion to the respective number of Shares set forth
opposite their names in Schedule I hereto, and not joint.
24
25
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity, except that the indemnity and
contribution agreements contained in this Section 7 shall supersede the rights
and remedies of the Company and the Selling Stockholders under the Registration
Rights Agreement dated as of September 12, 1996 among such parties solely with
respect to the offering of Shares contemplated hereby.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company and the Selling
Stockholders set forth in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company or the Selling Stockholders and (iii)
acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or
the obligations of the several Underwriters with respect to the Option Shares)
may be terminated in your absolute discretion, by notice given to the Selling
Stockholders and the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (or, in the case of the Option Shares,
prior to the Additional Closing Date) (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State or authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
calamity or crisis in financial markets or elsewhere that, in your reasonable
judgment, is material and adverse and which, in your reasonable judgment, makes
it impracticable to market the Shares being delivered at the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement (or, if
applicable, any post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate
25
26
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Underwritten Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of one-tenth of such
number of Shares without the written consent of such Underwriter. If on the
Closing Date or the Additional Closing Date, as the case may be, any Underwriter
or Underwriters shall fail or refuse to purchase Shares which it or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to you and the Selling Stockholders for the purchase of such Shares
are not made within 36 hours after such default, this Agreement (or the
obligations of the several Underwriters to purchase the Option Shares, as the
case may be) shall terminate without liability on the part of any non-defaulting
Underwriter or the Selling Stockholder. In any such case either you or the
Selling Stockholders shall have the right to postpone the Closing Date (or, in
the case of the Option Shares, the Additional Closing Date), but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company or the
Selling Stockholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any of the Company or the
Selling Stockholders shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding
upon the Company, the Selling Stockholders and the Underwriters, any controlling
persons
26
27
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by ▇▇▇▇▇▇▇ ▇▇▇▇▇ alone on behalf of the Underwriters, and any such
action taken by you jointly or by ▇▇▇▇▇▇▇ ▇▇▇▇▇ alone shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
to the Representatives, c/o Merrill ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, North Tower, World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (telefax: 212-449-1885); Attention: Financial Sponsors Group. Notices
to the Company shall be given to it at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Prudential ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (telefax: 617-421-7866); Attention:
General Counsel's Office with a copy to the Secretary's Office. Notices to the
Selling Stockholders shall be given to them at DI Associates LP, KKR Partners
II, L.P. and KKR Associates, ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., ▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (telefax: 212-750-0003);
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇.
13. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the same
instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PROVISIONS THEREOF.
27
28
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:
----------------------------------
Name:
Title:
Selling Stockholders
DI ASSOCIATES, L.P.
By: KKR Associates, as General Partner
By:
----------------------------------
Name:
Title:
KKR PARTNERS II, L.P.
By: KKR Associates, as General Partner
By:
----------------------------------
Name:
Title:
KKR ASSOCIATES
By:
----------------------------------
Name:
Title:
29
Accepted: [ ], 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
CREDIT SUISSE FIRST BOSTON
CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
INCORPORATED
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
Acting on behalf of itself and the several
Underwriters named in Schedule I
hereto.
By:
----------------------------------------
Name:
Title: Authorized Signatory
30
SCHEDULE I
NUMBER OF SHARES
UNDERWRITER TO BE PURCHASED
----------- ----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..........................................
Credit Suisse First Boston Corporation.........................
▇▇▇▇▇▇▇, Sachs & Co............................................
▇.▇. ▇▇▇▇▇▇ Securities Inc.....................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated..............................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.......................................
[other underwriters]
----------
Total.......................................................... 23,088,959
==========
31
SCHEDULE II
NUMBER OF NUMBER OF
SELLING STOCKHOLDERS UNDERWRITTEN SHARES OPTION SHARES
-------------------- ------------------- -------------
DI Associates, L.P.
KKR Partners II, L.P.
KKR Associates
32
Appendix A
LIST OF SIGNIFICANT SUBSIDIARIES
▇▇▇▇▇ -- GmbH
Gilfin B.V.
1
