Draft of June 20, 1998
AURORA FOODS INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
_____________
UNDERWRITING AGREEMENT
(U.S. VERSION)
--------------------------
. . . . . . . , 1998
Xxxxxxx, Xxxxx & Co.,
BT Xxxx. Xxxxx Incorporated
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Credit Suisse First Boston Corporation
SBC Warburg Dillon Read Inc.
Chase Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Aurora Foods Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
11,004,409 shares of Common Stock, par value $.01 per share ("Stock"), of the
Company and Aurora/VDK LLC, a Delaware limited liability company, the sole
stockholder of the Company named in Schedule II hereto ("New LLC" or the "Sole
Stockholder") proposes, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of 1,320,591 shares and, at the election
of the Underwriters, up to 1,848,750 additional shares of Stock. The aggregate
of 12,325,000 shares to be sold by the Company and New LLC
is herein called the "Firm Shares" and the aggregate of 1,848,750 additional
shares to be sold by New LLC is herein called the "Optional Shares." The Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof are herein collectively called the "Shares".
Prior to the date hereof, (i) Aurora Foods Inc., a Maryland corporation
("Aurora Maryland"), was merged into and succeeded by the Company, (ii) MBW
Investors LLC, a Delaware limited liability company ("MBW LLC"), contributed all
of the issued and outstanding capital stock of Aurora Foods Holdings, Inc., a
Delaware corporation ("Aurora Holdings"), and VDK Foods LLC, a Delaware limited
liability company ("VDK LLC"), contributed all of the issued and outstanding
capital stock of VDK Holdings, Inc., a Delaware corporation ("VDK Holdings") to
New LLC, in exchange for membership interests in New LLC, and (iii) New LLC
contributed all of the issued and outstanding capital stock of Aurora Holdings
and VDK Holdings to the Company in exchange for Common Stock. The transactions
comprising the merger of Aurora Maryland into the Company, the capitalization of
New LLC with all of the issued and outstanding capital stock of VDK Holdings and
Aurora Holdings, the formation of the Company and the capitalization of the
Company with all of the issued and outstanding capital stock of VDK Holdings and
Aurora Holdings are collectively referred to as the "Reorganization".
Subsequent to the date hereof but prior to the Time of Delivery (as defined in
Section 5 hereof), Van xx Xxxx'x, Inc. a Delaware corporation ("VDK"), A Foods
Inc., a Delaware corporation ("A Foods"), VDK Holdings and Aurora Holdings will
each be merged into and succeeded by the Company. The transactions comprising
the merger of each of VDK, VDK Holdings, A Foods and Aurora Holdings with and
into the Company are collectively referred to as the "Merger". Aurora Maryland,
Aurora Holdings, VDK Holdings, New LLC, VDK and A Foods are collectively
referred to herein as the "Predecessors" and individually as a "Predecessor".
Any references in this Agreement to "the Company and its subsidiaries", "the
Company or any of its subsidiaries", and "each Subsidiary of the Company" shall,
after the consummation of the Merger, be deemed to be references to the Company
only. Subsequent to the date hereof, New LLC will be liquidated and will
distribute to, among others, entities that are under the control of, under
common control with or that are otherwise affiliates of Fenway Partners Capital
Fund, L.P. ("Fenway"), XxXxxx De Leeuw & Co. III, L.P. ("MDC III"), XxXxxx De
Leeuw & Co. III (Europe), L.P. ("MDC IIIE"), XxXxxx De Leeuw & Co. III (Asia),
L.P. ("MDC IIIA"), XxXxxx De Leeuw & Co. IV, L.P. ("MDC IV"), XxXxxx De Leeuw &
Co. IV Associates, L.P. ("MDC IV A"), Gamma Fund LLC ("Gamma"), Delta Fund LLC
("Delta" and together with MDC III, MDC IIIE, MDC IIIA, MDC IV, MDC IV A, and
Gamma, the "MDC Entities" and each individually, an "MDC Entity"), certain of
the net proceeds received by it from the sale of Shares by it hereunder and
under the International Underwriting Agreement. New LLC, Fenway and the MDC
Entities are hereinafter collectively referred to as the "Selling Stockholders".
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 Company
and New LLC of up to a total of 2,501,250 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, BT Xxxx. Xxxxx
International, Xxxxxxxxx, Xxxxxx & Xxxxxxxx International, Credit Suisse First
Boston (Europe) Limited, Swiss Bank Corporation acting through its division, SBC
Warburg Dillon Read, and Chase Manhattan International Limited 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
2
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 certain
substitute pages. Although the Shares will be registered in the United States
under a registration statement, the international form of prospectus will not be
included in such filing. Except as used in Sections 2, 4, 5, 11 and 13 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. (a) The Company and New LLC, jointly and severally, represent and
warrant to, and agree with, each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-50681) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits thereto, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, each as amended at the time such part of the
Initial Registration Statement became effective, are hereinafter
collectively called the "Registration Statement"; and such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act,
is hereinafter called the "Prospectus";
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, except that the preliminary prospectuses,
3
included in the Initial Registration Statement filed on April 22, 1998 and
May 15, 1998, did not include an estimated range of the maximum offering
price and share and per share data and did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Xxxxxxx, Xxxxx & Co. expressly for use therein or by a Selling Stockholder
expressly for use in the preparation of the answers therein to Items 7 and
11(m) of Form S-1;
(iii) As of the applicable effective date as to the Registration
Statement and any amendment thereto, and as of the applicable filing date
as to the Prospectus and any amendment or supplement thereto, the
Registration Statement conformed, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus
will conform, in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement
and any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein or by a
Selling Stockholder expressly for use in the preparation of the answers
therein to Items 7 and 11(m) of Form S-1;
(iv) Neither any Predecessor nor the Company or any subsidiary of
the Company has sustained since the date of the latest audited financial
statements included in the 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, which loss or interference is material to the
business, financial condition, or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock or long-term debt of the
Company or any subsidiary of the Company or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(v) The Company and its subsidiaries have, and after giving effect
to the consummation of the Merger will have, good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property to the Company
and its Subsidiaries, taken as a whole, and such as do not interfere with
the use
4
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(vi) The Company has been duly incorporated and is, and after
giving effect to consummation of the Merger will be, validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority 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
except where the failure to be so qualified would not, either individually
or in the aggregate with such other failures, have a material adverse
effect on the business, financial condition, or results of operations of
the Company and its subsidiaries, taken as a whole; as of the date hereof,
each subsidiary of the Company has been duly incorporated or organized, as
the case may be, and is validly existing as a corporation or limited
liability company, as the case may be, in good standing under the laws of
its jurisdiction of incorporation or organization, as the case may be; and
after giving effect to consummation of the Mergers, the Company does not
have any subsidiaries;
(vii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and conform to the description of the Stock contained in
the Prospectus; as of the date hereof, all of the issued shares of capital
stock of each corporate subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except for directors' qualifying shares) are, owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(viii) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder and under the International Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(ix) The issue and sale of the Shares to be sold by the Company
hereunder and under the International Underwriting Agreement and the
compliance by the Company with all of the provisions of this Agreement and
the International Underwriting Agreement and the consummation by the
Company and New LLC 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 the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject except for
such conflicts, breaches, violations or defaults that individually or in
the aggregate would not have a material adverse effect on the business,
financial condition, or
5
results of operations of the Company and its subsidiaries, taken as a
whole, nor will such action result in any violation of the provisions of
the Certificate of Incorporation or By-laws of the Company or any existing
United States federal or state statute (excluding for purposes of this
paragraph (ix) United States federal or state securities laws) or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their 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 issue and sale of the Shares or the
consummation by the Company of the 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 securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the International
Underwriters;
(x) Neither any Predecessor nor the Company or any subsidiary of
the Company has violated any existing foreign, federal, state or local law
or regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), any provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which,
singly 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;
(xi) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any Authorization, any related constraints on
operating activities and any potential liabilities to third parties) for
which the Company or any of its subsidiaries could reasonably be expected
to be responsible which would, singly or in the aggregate, have a material
adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole;
(xii) Each of the Company and its subsidiaries has, and after giving
effect to the Merger will have, such concessions, permits, licenses,
consents, exemptions, franchises, authorizations, orders, registrations,
qualifications and other approvals (each, an "Authorization") of, and has
made all filings with and notices to, all governments, governmental or
regulatory authorities and self-regulatory organizations and all courts and
other tribunals, including, without limitation, under any applicable
Environmental Laws and under any rules and regulations promulgated by the
U.S. Food and Drug Administration (the "FDA"), as are necessary to own,
lease, license and operate its properties and to conduct its business as
described in the Prospectus and to consummate the Reorganization and the
Merger, except where the failure to have any such Authorization or to make
any such filing or notice would not, singly or in the aggregate, (i) 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 (ii)
adversely effect the validity, performance or consummation of the
Reorganization or the Merger or the transactions contemplated by this
Agreement and the International Underwriting Agreement. Each such
Authorization is valid
6
and in full force and effect and each of the Company and its subsidiaries
is in compliance with all the terms and conditions thereof and with the
rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including,
without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both,
would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and other than as disclosed in the Prospectus, such
Authorizations contain no restrictions that are materially burdensome to
any of the Company or any of its subsidiaries; except in each case
described in this sentence where such failure to be valid and in full force
and effect or to be in compliance or the occurrence of any such event or
the presence of any such restriction would not, singly or in the aggregate
with all such failures, have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole;
(xiii) All agreements of any of the Predecessors or the Company that
are necessary to consummate the Reorganization or the Merger, as the case
may be, have been duly and validly authorized, executed and delivered by
the parties thereto and are valid and legally binding agreements of the
parties thereto, and enforceable in accordance with their terms, each
Predecessor and the Company have all corporate or limited liability company
power and authority necessary to consummate the Reorganization and the
Merger, and no circumstance exists which would allow or cause any party to
any agreements that are necessary to consummate the Merger to terminate or
fail to perform its obligations thereunder. All stockholder and limited
liability company member approvals necessary to consummate the
Reorganization and the Merger have been obtained and are in full force and
effect. The consummation of the Reorganization and the Merger will not
(i) conflict with or constitute a breach of any of the terms or provisions
of, or a default under, (A) the certificate of incorporation, by-laws or
other constituent documents of any of the Predecessors or the Company or
any of its subsidiaries, or (B) any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which any Predecessor or the
Company or any of its subsidiaries is a party or by which any of the
Predecessors or the Company or any of its subsidiaries or any of their
respective property is bound, (ii) violate or conflict with any applicable
law or any rule, regulation, judgment, order or decree of any governments
or court or any governmental body or agency having jurisdiction over any of
the Predecessors or the Company or any of its subsidiaries or any of their
respective property, or (iii) result in the suspension, termination or
revocation of, or result in the imposition of fines or penalties pursuant
to, or result in any other impairment of any Authorization, rights, assets
or properties of any of the Company or any of its subsidiaries; except in
the case of clauses (i)(B), (ii), or (iii) for such conflicts, breaches,
defaults, violations, suspensions, terminations, revocations, fines and
penalties as would not in the aggregate with such other conflicts,
breaches, defaults, violations, suspensions, terminations, revocations,
fines and penalties be expected to (x) 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 (y) adversely effect the
validity, performance or consummation of the Reorganization, the Merger or
the transactions contemplated by this Agreement or the International
Underwriting Agreement;
7
(xiv) The Company and its subsidiaries own or possess, or have
adequate rights to use, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and /or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"Intellectual Property") currently used, or that after the Merger will be
used by them in connection with their business as described in the
Prospectus and as proposed to be operated by them (including the trademarks
"Xxxxxx Xxxxx", "Log Cabin", "Country Kitchen", "Xxx. Xxxxxxxxxxx'x", "Aunt
Jemima", "Wigwam", "Xxx xx Xxxx'x", "Mrs. Xxxx's" and "Xxxxxxx"), and,
except as disclosed in the Prospectus, neither any of the Predecessors nor
the Company or any of its subsidiaries has received any notice of
infringement of or conflict with (or knows of any such infringement or
conflict with) asserted rights of others with respect to such Intellectual
Property except with respect to any alleged infringement or conflict which
would not, individually or in the aggregate, reasonably be expected to have
a material adverse effect on the business, financial condition or results
of operations of the Company;
(xv) Neither the Company nor any subsidiary of the Company is in
violation of its Certificate of Incorporation, By-laws or other constituent
documents or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties
may be bound;
(xvi) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, under the captions "Risk
Factors--Mandatory Offer to Purchase VDK Notes Upon Change of Control",
"--Governmental Regulation "--Environmental Matters","Business--Certain
Legal and Regulatory Matters", "Principal Stockholders--Securityholders
Agreement", "Certain Relationships and Related Transactions", "Certain
United States Federal Tax Consequences to Non-United States Holders of
Common Stock" and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, present in all
material respects a fair description of such provisions and documents;
(xvii) Other than as set forth in the 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 be
determined adversely and, if so determined, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xviii) The Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
8
(xix) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(xx) Price Waterhouse LLP, who have certified certain financial
statements of the Predecessors and of the Company, Deloitte and Touche LLP,
who have certified certain financial statements included in the
Registration Statement, and Coopers & Xxxxxxx L.L.P., who have certified
certain financial statements included in the Registration Statement, are
each independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder;
(xxi) The filing of the Initial Registration Statement has been duly
authorized by Aurora Maryland;
(xxii) The Reorganization has been duly consummated in accordance
with all applicable law and upon the filing of the Certificate of Merger
with and by the Secretary of State of the State of Delaware, the Merger
shall have been consummated in accordance with the Agreement of Merger and
the laws of the State of Delaware;
(xxiii) The Shares have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance;
(xxiv) Except as described in the Prospectus, there are no contracts,
agreements, or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company;
(xxv) There are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus
which are not filed or described as required;
(xxvi) The PRO FORMA balance sheets and PRO FORMA statements of
income and the related notes thereto set forth in the Registration
Statement and the Prospectus have been prepared in accordance with the
applicable requirements of Rule 11-02 of Regulation S-X promulgated by the
Commission, have been compiled on the pro forma basis described therein,
and in the opinion of the Company, the assumptions used in the preparation
thereof and the adjustments used therein are reasonable; and
(xxvii) This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company.
(b) New LLC represents and warrants to, and agrees with, each of the
Underwriters and the Company that:
(i) All Authorizations necessary for the execution and delivery by
New LLC of this Agreement, and the International Underwriting Agreement,
and by New LLC of the Power of Attorney and the Custody Agreement
hereinafter referred to, and for the sale and delivery of the Shares to be
sold by New LLC hereunder and under the International
9
Underwriting Agreement, have been obtained; New LLC has full right, power
and authority to enter into this Agreement and the International
Underwriting Agreement; and New LLC has full right, power and authority to
enter into the Power of Attorney and the Custody Agreement and to sell,
assign, transfer and deliver the Shares to be sold by it hereunder and
under the International Underwriting Agreement;
(ii) The sale of the Shares to be sold by New LLC hereunder and
under the International Underwriting Agreement and the compliance by New
LLC with all of the provisions of this Agreement and the International
Underwriting Agreement, and by New LLC with all of the provisions of 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 statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which New LLC or
any of its subsidiaries is a party or by which New LLC or any of its
subsidiaries is bound, or to which any of its property or assets is
subject, nor will such action result in any violation of the provisions of
the limited liability company agreement and certificate of limited
liability of New LLC, or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over New LLC
or its property;
(iii) New LLC has, and immediately prior to each Time of Delivery
(as defined in Section 4 hereof) will have, good and valid title to the
Shares to be sold by it 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 and
thereto, 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;
(iv) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell, file a registration
statement with respect to (other than a registration statement on Form S-8
with respect to an employee benefit plan of the Company) or otherwise
dispose of, directly or indirectly, except as provided hereunder and under
the International Underwriting Agreement, any Stock or securities of the
Company that are substantially similar to the Stock, including but not
limited to any securities that are convertible into or exchangeable for, or
whose exercise or settlement price is derived from, or that represent the
right to receive, Stock or any such substantially similar securities (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 your prior written
consent;
(v) New LLC 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;
(vi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement
10
thereto are made in reliance upon and in conformity with information
furnished in writing or otherwise to the Company by or on behalf of New LLC
expressly for use therein or otherwise relate to New LLC, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and any
further amendments or supplements to the Registration Statement and the
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
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;
(vii) 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, New LLC will deliver to you prior to or at the First Time of
Delivery (as hereinafter defined) a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof);
(viii) Certificates in negotiable form representing all of the Shares
to be sold by New LLC 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 New LLC to [NAME OF CUSTODIAN], as custodian (the
"Custodian"), and New LLC has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and
each of them, as such New LLC's attorneys-in-fact (the "Attorneys-in-Fact")
with authority to execute and deliver this Agreement and the International
Underwriting 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 New LLC hereunder and
otherwise to act on behalf of New LLC in connection with the transactions
contemplated by this Agreement, the International Underwriting Agreement
and the Custody Agreement;
(ix) The Shares represented by the certificates held in custody for
New LLC 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 New LLC for
such custody, and the appointment by New LLC of the Attorneys-in-Fact by
the Power of Attorney, are to that extent irrevocable; the obligations of
New LLC hereunder shall not be terminated by operation of law, whether by
the dissolution of New LLC or by the occurrence of any other event; 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
New LLC 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 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
termination, dissolution or other event;
11
(x) All agreements of New LLC that are necessary to consummate the
Reorganization or the Merger, as the case may be, have been duly and
validly authorized, executed and delivered by New LLC and are valid and
legally binding agreements of such New LLC, enforceable against such New
LLC in accordance with their terms. The execution, delivery and
performance of any of such agreements by such New LLC will not (i) conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, (A) its certificate of incorporation, by-laws or other
constituent documents, or (B) any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which it or any of its
subsidiaries is a party or by which it or any of its subsidiaries or any
of their respective property is bound, (ii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any
governments or court or any governmental body or agency having jurisdiction
over it or any of its subsidiaries or any of their respective property, or
(iii) result in the suspension, termination or revocation of, or result in
the imposition of fines or penalties pursuant to, or result in any other
impairment of any Authorization, rights, assets or properties of any of
the Company or any of its subsidiaries; except in the case of clauses
(i)(B), (ii), or (iii) for such conflicts, breaches, defaults, violations,
suspensions, terminations, revocations, fines and penalties as xxxx not in
the aggregate with such other conflicts, breaches, defaults, violations,
suspensions, terminations, revocations, fines and penalties be expected to
(x) 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 (y) adversely effect the validity, performance or consummation of
the Reorganization, the Merger or the transactions contemplated by this
Agreement or the International Underwriting Agreement;
(xi) New LLC has been duly organized and is validly existing as a
limited liability company in good standing under the laws of its
jurisdiction of organization, with power and authority to own its
properties and conduct its business as described in the Prospectus and to
perform all of the transactions contemplated by this Agreement and the
International Underwriting Agreement; and
(xii) The Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by New LLC.
(c) Fenway represents and warrants to, and agrees with, each of the
Underwriters and the Company that:
(i) All Authorizations necessary for the execution and delivery by
such Selling Stockholder of this Agreement, and the International Underwriting
Agreement, have been obtained; and such Selling Stockholder has full limited
partnership right, power and authority to enter into this Agreement and the
International Underwriting Agreement;
(ii) The compliance by such Selling Stockholder with its
obligations under this Agreement and the International Underwriting Agreement
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, indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which such
Selling Stockholder or any of its subsidiaries is a party or by which such
Selling Stockholder or any of its subsidiaries is bound, or to which any of its
property or assets is subject, nor will such action result in any violation of
the provisions of the partnership agreement of such Selling Stockholder, or any
12
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the property of such
Selling Stockholder;
(iii) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to offer, sell, contract to sell, file a registration statement with respect
to, or otherwise dispose of, directly or indirectly, except as provided
hereunder and under the International Underwriting Agreement, any Stock or
securities of the Company that are substantially similar to the Stock, including
but not limited to any securities that are convertible into or exchangeable for,
or whose exercise price is derived from, or that represent the right to receive,
Stock or any such substantially similar securities (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 your prior written consent;
(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;
(v) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
information furnished in writing to the Company by such Selling Stockholder
expressly for use under the caption "Principal Stockholders and Selling
Stockholder" therein, such Preliminary Prospectus and the Registration Statement
did, and the Prospectus and any further amendments or supplements to the
Registration Statement and the 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 Form S-1 and 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;
(vi) Such Selling Stockholder has been duly organized and is
validly existing as a limited partnership in good standing under the laws of its
jurisdiction of organization with power and authority to perform its obligation
under this Agreement and the International Underwriting Agreement; and
(vii) The Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by such Selling Stockholder.
(d) Each MDC Entity severally, as to itself, represents and warrants to,
and agrees with, each of the Underwriters and the Company that:
(i) All Authorizations necessary for the execution and delivery by
such Selling Stockholder of this Agreement, and the International Underwriting
Agreement, have been obtained; and each such Selling Stockholder has the
requisite partnership or limited liability company right, power and authority to
enter into this Agreement and the International Underwriting Agreement;
(ii) The compliance by each such Selling Stockholder with its
obligations under this Agreement and the International Underwriting Agreement,
will not conflict with or result in a
13
breach or violation of any of the terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which such Selling Stockholder or any of its
subsidiaries is a party or by which such Selling Stockholder or any of its
subsidiaries is bound, or to which any of its property or assets is subject, nor
will such action result in any violation of the provisions of the limited
partnership agreement if such Selling Stockholder is a limited partnership, or
the limited liability company agreement and certificate of limited liability if
such Selling Stockholder is a limited liability company, or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such Selling
Stockholder;
(iii) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to offer, sell, contract to sell, file a registration statement with respect
to, or otherwise dispose of, directly or indirectly, except as provided
hereunder and under the International Underwriting Agreement, any Stock or
securities of the Company that are substantially similar to the Stock, including
but not limited to any securities that are convertible into or exchangeable for,
or whose exercise price is derived from, or that represent the right to receive,
Stock or any such substantially similar securities (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 your prior written consent;
(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;
(v) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity with
information furnished in writing to the Company by such Selling Stockholder
expressly for use under the caption "Principal Stockholders and Selling
Stockholders", such Preliminary Prospectus and the Registration Statement did,
and the Prospectus and any further amendments or supplements to the Registration
Statement and the 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 Form S-1 and 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;
(vi) If such Selling Stockholder is a limited partnership, it has
been duly organized and is validly existing as a limited partnership in good
standing under the laws of its jurisdiction of organization, with power and
authority to perform its obligations under this Agreement and the International
Underwriting Agreement;
(vii) If such Selling Stockholder is a limited liability company, it
has been duly organized and is validly existing as a limited liability company
in good standing under the laws of its jurisdiction of organization, with power
and authority to perform its obligations under this Agreement and the
International Underwriting Agreement; and
14
(viii) The Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by such Selling Stockholder.
2. Subject to the terms and conditions herein set forth, (a) the Company
and New LLC agree, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company and New LLC, at a purchase price per share of
$............., 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 be sold by the Company and New LLC as set forth opposite their
respective names in Schedule II 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 I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from the Company and New LLC hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, New LLC agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from New LLC at the purchase price per share set forth in
clause (a) of this Section 2, 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 I hereto and the denominator of which is
the maximum number of Optional Shares that all of the Underwriters are entitled
to purchase hereunder.
New LLC hereby grants to the Underwriters the right to purchase at their
election up to 1,848,750 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 only by written notice from you to the Attorneys-in-Fact, given
within a period of 30 calendar days after the date of this Agreement 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 earlier than the First Time of Delivery (as defined in Section 5 hereof)
or, unless you and the Attorneys-in-Fact otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. The Company hereby confirms its engagement of Xxxxxxx, Xxxxx & Co. as,
and Xxxxxxx, Xxxxx & Co. hereby confirms its agreement with the Company to
render services as, a "qualified independent underwriter" within the meaning of
Section 2(o) of Rule 2720 of the National Association of Securities Dealers,
Inc. (the "NASD") with respect to the offering and sale of the Shares. Xxxxxxx,
Xxxxx & Co., in its capacity as qualified independent underwriter and not
otherwise, is referred to herein as the "QIU". As compensation for the services
of the QIU hereunder, the Company agrees to pay the QIU $10,000 at the First
Time of Delivery.
4. 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 Prospectus.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company and New LLC shall
15
be delivered by or on behalf of the Company and New LLC to Xxxxxxx, Xxxxx & Co.,
through the facilities of The Depository Trust Company ("DTC"), for the account
of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company and New LLC to Xxxxxxx, Xxxxx & Co. at least
forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on ............., 1998, or at
such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon
in writing, and, with respect to the Optional Shares, 9:30 a.m., New York City
time, on the date specified by Xxxxxxx, Xxxxx & Co. in the written notice given
by Xxxxxxx, Xxxxx & Co. of the Underwriters' election to purchase such Optional
Shares, or such other time and date as Xxxxxxx, Xxxxx & Co. and the
Attorney-in-Fact may agree upon in writing. Such time and date for delivery of
the Firm Shares is herein called the "First Time of Delivery", such time and
date for delivery of the Firm Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 8(l) hereof, will be delivered at the offices
of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Closing Location"), and the Shares will be delivered at the Designated Office,
all at each Time of Delivery. A meeting will be held at the Closing Location at
2:30 p.m., New York City time, on the New York Business Day next preceding each
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 5, "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.
6. The Company and New LLC, jointly and severally, agree with each of the
Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the
16
issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) 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, to furnish the Underwriters with copies of the Prospectus in New York
City in such quantities as you may reasonably request, and, if the delivery
of a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon your
request to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus
in connection with sales of any of the Shares at any time nine months or
more after the time of issue of the Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such Underwriter
as many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell, file a registration
statement with respect to (other than a registration statement with respect
to an employee benefit plan of the Company), or otherwise dispose of,
directly or indirectly, except as provided hereunder and under the
International Underwriting Agreement, any Stock or securities of the
Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or
whose exercise or settlement price is derived from, or that represent the
right to
17
receive, Stock or any such substantially similar securities (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 your prior written consent;
(f) For so long as there are stockholders of the Company other
than the persons listed in the Prospectus under the caption "Principal and
Selling Stockholders" (such persons that are not so listed, the "Public
Holders") or until such time as each Public Holder has directed the Company
in writing not to provide such Public Holder with an annual report, to
furnish to its stockholders as soon as practicable after the end of each
fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Company and its subsidiaries for such quarter
in reasonable detail;
(g) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to
time reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to the
Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement and the International Underwriting
Agreement in the manner specified in the Prospectus under the caption "Use
of Proceeds";
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the New York Stock Exchange (the "Exchange");
(j) To file with the Commission such information on Form 10-Q or
Form 10-K as may be required by Rule 463 under the Act;
(k) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act; and
(l) To take, or cause to be taken, prior to the First Time of
Delivery, all actions necessary to cause the Merger to occur concurrently
with the First Time of Delivery and not to amend, modify or terminate, or
permit any of its subsidiaries to amend, modify or
18
terminate, any provision of the Agreement of Merger prior to the First Time
of Delivery without the prior written consent of the Representatives.
7. The Company and New LLC, jointly and severally, covenant and agree
with one another and with the several Underwriters that (a) the Company and such
Selling Stockholder will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the International Underwriting
Agreement, the Agreement between Syndicates, the Selling Agreements, the Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Shares; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section
6(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky survey; (iv) all fees and expenses in connection with listing the
Shares on the New York Stock Exchange; and (v) the filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Shares; (b) the Company will pay or cause
to be paid (i) the cost of preparing stock certificates; (ii) the cost and
charges of any transfer agent or registrar; and (iii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section and (c) each Selling
Stockholder will pay or cause to be paid all costs and expenses incident to the
performance of such Selling Stockholder's obligations hereunder which are not
otherwise specifically provided for in this Section, including (i) any fees and
expenses of counsel for such Selling Stockholder, (ii) New LLC's fees and
expenses of the Attorneys-in-Fact and the Custodian and (iii) all expenses and
taxes incident to the sale and delivery of the Shares to be sold by New LLC to
the Underwriters hereunder. In connection with Xxxxxx (c) (iii) of the
preceding sentence, Xxxxxxx, Xxxxx & Co. agrees to pay New York State stock
transfer tax, and New LLC agrees to reimburse Xxxxxxx, Xxxxx & Co. for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is understood,
however, that the Company shall bear and the Selling Stockholders shall not be
required to pay or to reimburse the Company for, the cost of any other matters
not directly relating to the sale and purchase of the Shares pursuant to this
Agreement, and that, except as provided in this Section, and Sections 9 and 13
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, stock transfer taxes on resale of any of the Shares
by them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and the Selling Stockholders herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
19
(a) 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 Act and in accordance
with Section 6(a) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such written opinion or opinions (a draft of each such
opinion is attached as Xxxxx XX(a) hereto), dated such Time of Delivery,
with respect to the incorporation of the Company, the validity of the
Shares being delivered at such Time of Delivery, the Registration Statement
and the Prospectus as well as such other related matters as you 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;
(c) Xxxxxxxx & X'Xxxx, LLP, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Xxxxx XX(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you.
(x) Xxxxxxxx & X'Xxxx, LLP, counsel for New LLC, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Xxxxx XX(c) hereto), dated the First Time of Delivery, in form and
substance satisfactory to you;
(e) Xxxxx & Xxxx, counsel for Fenway, shall have furnished to you
their written opinion (a draft of such opinion is attached as Xxxxx XX(d)
hereto), dated the First Time of Delivery, in form and substance
satisfactory to you;
(f) Godward LLP, counsel for each of the MDC Entities, shall have
furnished to you their written opinion (a draft of such opinion is attached
as Xxxxx XX(e) hereto), dated the First Time of Delivery, in form and
substance satisfactory to you;
(g) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective date
of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement and also at each Time of Delivery,
Price Waterhouse LLP, Deloitte & Touche LLP and Coopers & Xxxxxxx L.L.P.,
shall each have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to
the effect set forth in Annex I hereto (the executed copy of the letter
delivered prior to the execution of this Agreement is attached as Xxxxx
X(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Xxxxx I(b)
hereto);
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
20
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
Prospectus, and since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the
general affairs, management, financial condition, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives 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 in the Prospectus;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(j) 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 general
moratorium on commercial banking activities declared by either Federal or
New York State authorities; or (iii) 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 (iii) in the judgment of the Representatives makes
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 in the Prospectus;
(k) The Shares to be sold by the Company and New LLC at such Time
of Delivery shall have been duly listed, subject to notice of issuance, on
the New York Stock Exchange;
(l) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from all parties to the Securityholders
Agreement (as defined in the Prospectus) to the effect set forth in Section
6(e) hereof in form and substance satisfactory to you;
(m) The Company shall have complied with the provisions of Section
6(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(n) The Company and the Selling Stockholders shall have furnished
or caused to be furnished to you at such Time of Delivery certificates of
officers of the Company and the Selling Stockholders, 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
21
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 certificates as to the matters set forth in subsections (a) and
(h) of this Section, and as to such other matters as you may reasonably
request; and
(o) The Merger shall have been consummated and evidence of the
filing of the executed Certificate of Xxxxxx with the Secretary of State of
the State of Delaware, satisfactory to the Representatives, shall have been
provided to the Representatives.
9. (a) The Company and New LLC, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment 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 will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and New LLC shall 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 an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxxx, Xxxxx &
Co. expressly for use therein.
(b) Fenway will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment 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 any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with information furnished in writing to the Company by such Selling
Stockholder expressly for use under the caption "Principal Stockholders and
Selling Stockholder" therein; and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that such Selling Stockholder shall 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 an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein; PROVIDED, FURTHER, that the liability of Fenway pursuant to this
subsection
22
(b) shall not exceed the product of (i) the number of Shares deemed sold by such
Selling Stockholder (based on the allocation of proceeds to Fenway as set forth
in the Custody Agreement) consistent with the data set forth in the Prospectus
under the caption "Principal Stockholders and Selling Stockholder" including any
Optional Shares and (ii) the initial public offering price of the Shares as set
forth in the Prospectus.
(c) Each MDC Entity will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment 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 any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with information furnished in writing to the Company by such Selling
Stockholder expressly for use under the caption "Principal Stockholders and
Selling Stockholder" therein; and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that such Selling Stockholder shall 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 an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein; PROVIDED, FURTHER, that the liability of such MDC Entity pursuant to
this subsection (c) shall not exceed the product of (i) the number of Shares
deemed sold by such Selling Stockholder (based on the allocation of proceeds to
such Selling Stockholder as set forth in the Custody Agreement) consistent with
the data set forth in the Prospectus under the caption "Principal Stockholders
and Selling Stockholder" including any Optional Shares and (ii) the initial
public offering price of the Shares as set forth in the Prospectus.
(d) Each Underwriter will indemnify and hold harmless the Company and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment 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 any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling
23
Stockholder in connection with investigating or defending any such action or
claim as such expenses are incurred.
(e) Promptly after receipt by an indemnified party under subsection (a),
(b), (c) or (d) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify 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 satisfactory to such indemnified party (which 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. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(f) If the indemnification provided for in this Section 9 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b), (c) or (d) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) 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 the other from the offering of the Shares. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (e) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party 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 the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), 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 shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Shares purchased under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus. The
relative fault 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
24
omission to state a material fact relates to information supplied 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. The Company, each of the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (f) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (f). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (f) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (f), 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. 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. The Underwriters'
obligations in this subsection (f) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(g) The obligations of the Company and the Selling Stockholders under this
Section 9 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 9 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company or any Selling Stockholder within the meaning of the Act.
10. (a) The Company and New LLC, jointly and severally, will indemnify
and hold harmless Xxxxxxx, Xxxxx & Co., in its capacity as QIU, against any
losses, claims, damages or liabilities, joint or several, to which the QIU may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment 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 will reimburse the QIU for any legal or other expenses reasonably incurred
by the QIU in connection with investigating or defending any such action or
claim as such expenses are incurred.
(b) Promptly after receipt by the QIU under subsection (a) above of notice
of the commencement of any action, the QIU shall, if a claim in respect thereof
is to be made against the Company under such subsection, notify the Company in
writing of the commencement thereof; but the omission so to notify the Company
shall not relieve it from any liability which it may have to the QIU otherwise
than under such subsection. In case any such action shall be brought against
the QIU and it shall notify the Company of the commencement thereof, the Company
shall be entitled
25
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 satisfactory to the QIU (who shall not, except with the consent of the
QIU, be counsel to the Company or New LLC), and, after notice from the
indemnifying party to the QIU of its election so to assume the defense thereof,
the indemnifying party shall not be liable to the QIU under such subsection for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the QIU, in connection with the defense thereof other
than reasonable costs of investigation. Neither the Company nor New LLC shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the QIU is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the QIU from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
the QIU.
(c) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless Xxxxxxx, Xxxxx & Co., in its capacity as
QIU, under subsection (a) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then the
Company and New LLC shall contribute to the amount paid or payable by the QIU as
a result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and New LLC on the one hand and the QIU on the other
from the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the QIU
failed to give the notice required under subsection (b) above, then the Company
and New LLC shall contribute to such amount paid or payable by the QIU in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and New LLC on the one hand and the QIU on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and New LLC on the one hand and the QIU on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company, as set forth in the table
on the cover page of the Prospectus, bear to the fee payable to the QIU pursuant
to Section 3 hereof. The relative fault 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 New LLC on the one hand or the QIU on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, New
LLC and the QIU agree that it would not be just and equitable if contributions
pursuant to this subsection (c) were determined by PRO RATA allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (c). The amount paid or
payable by the QIU as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (c) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. 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.
26
(d) The obligations of the Company and New LLC under this Section 10 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the QIU within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and New LLC shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company and New LLC notify
you that they have so arranged for the purchase of such Shares, you or the
Company and New LLC shall have the right to postpone such Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
New LLC as provided in subsection (a) above, the aggregate number of such Shares
which remains unpurchased does not exceed one-eleventh of the aggregate number
of all of the Shares to be purchased at such Time of Delivery, then the Company
and New LLC shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
New LLC as provided in subsection (a) above, the aggregate number of such Shares
which remains unpurchased exceeds one-eleventh of the aggregate number of all of
the Shares to be purchased at such Time of Delivery, or if the Company and New
LLC shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of New LLC to sell
the Optional Shares shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company or New LLC, except for the
expenses to be borne by the Company and New LLC and the Underwriters as provided
in Section 7 hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
12. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth
27
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any of the Selling Stockholders, any officer or director or controlling
person of the Company, or any controlling person of any Selling Stockholder, and
shall survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company and New LLC as provided herein, the Company will reimburse the
Underwriters through you 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, but the Company and New LLC shall then be under no
further liability to any Underwriter in respect of the Shares not so delivered
except as provided in Sections 7 and 9 hereof.
14. 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, Xxxxx & Co. on behalf of you as the
representatives and in all dealings with New LLC as a Selling Stockholder
hereunder, you and the Company shall be entitled to act and rely upon any
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 you as the representatives in care of Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; if to New LLC, to [ ] Attention:_________; if to
Fenway, to _______, Attention:________; if to an MDC Entity, to _________,
Attention:__________; 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: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 9 (e) 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 you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
15. 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 Sections 9 and 12 hereof, the officers and directors of the
Company and New LLC 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.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
28
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
18. 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, please sign and
return to us one for the Company, one for each Selling Stockholder and one for
each of the Representatives plus one for each counsel, and the Custodian, if
any, counterparts hereof, and upon the acceptance hereof by you, on behalf of
each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company and the Selling Stockholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Aurora Foods Inc.
By:
--------------------------------
Name:
Title:
Aurora/VDK LLC
By:
--------------------------------
Name:
Title:
Fenway Partners Capital Fund, L.P.
By: Fenway Partners, L.P.,
its General Partner
By: Fenway Partners Management, Inc.,
its General Partner
By:
--------------------------------
Name:
Title:
30
XxXxxx De Leeuw & Co. III, L.P.
By: MCD Management Company III, L.P.
its General Partner
By:
--------------------------------
Name:
Title:
XxXxxx De Leeuw & Co. III (Europe), L.P.
By: MCD Management Company III, L.P.,
its General Partner
By:
--------------------------------
Name:
Title:
XxXxxx De Leeuw & Co. III (Asia), L.P.
By: MCD Management Company IIIA, L.P.,
its General Partner
By:
--------------------------------
Name:
Title:
XxXxxx De Leeuw & Co. IV, L.P.
By: MCD Management Company IV, LLC,
its General Partner
By:
--------------------------------
Name:
Title:
XxXxxx De Leeuw & Co. IV Associates, L.P.
By: MCD Management Company IV, LLC
its General Partner
By:
--------------------------------
Name:
Title:
31
Gamma Fund LLC
By:
--------------------------------
Name:
Title:
Delta Fund LLC
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof ,
Xxxxxxx, Xxxxx & Co.
BT Xxxx. Xxxxx Incorporated
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Credit Suisse First Boston Corporation
SBC Warburg Dillon Read Inc.
Chase Securities Inc.
By:
----------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
32
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES TO MAXIMUM OPTION
UNDERWRITER BE PURCHASED EXERCISED
----------- --------------- ------------------
Xxxxxxx, Xxxxx & Co. . . . . . . . . . .
BT Xxxx. Xxxxx Incorporated
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation . . . . . . . . . . . . . .
Credit Suisse First Boston Corporation. .
SBC Warburg Dillon Read Inc. . . . . . .
Chase Securities Inc. . . . . . . . . . .
[NAMES OF OTHER UNDERWRITERS] . . . . . .
---------- ---------
Total 12,325,000 1,848,750
========== =========
33
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER PURCHASED IF
OF FIRM MAXIMUM OPTION
SHARES TO BE SOLD EXERCISED
----------------- ------------------
The Company. . . . . . . . . . . . . . 11,004,408
Aurora/VDK LLC (a) . . . . . . . . . . 1,320,592 1,848,750
---------- ---------
---------- ---------
Total 12,325,000 1,848,750
========== =========
(a) Aurora/VDK LLC has appointed [NAMES OF ATTORNEYS-IN-FACT (NOT LESS
THAN TWO)], and each of them, as the Attorneys-in-Fact for Aurora/VDK LLC.
34
ANNEX I
FORM OF COMFORT LETTER
Pursuant to Section 8(h) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Prospectus or the Registration Statement comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the unaudited consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus as indicated in their reports thereon; and on the basis of
specified procedures including inquiries of officials of the Company who
have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in
paragraph (vi)(A)(i) below comply as to form in all material respects with
the applicable accounting requirements of the Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
agrees with the corresponding amounts (after restatements where applicable)
in the audited consolidated financial statements for such five fiscal years
which were included or incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures
35
specified in such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this information does
not conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any unaudited
condensed financial statements referred to in Clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied
to the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances
36
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 financial statements included in the 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
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each case for changes, increases
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in Clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated
net income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for decreases or increases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and
(vi) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus, or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
37
XXXXX XX(a)
Opinion of Xxxxxxxx & Xxxxxxxx
38
XXXXX XX(b)
Opinion of Xxxxxxxx & X'Xxxx XXX
(Pursuant to Section 8(c) of the Underwriting Agreement)
39
XXXXX XX(c)
Opinion of Xxxxxxxx & X'Xxxx, LLP
(Pursuant to Section 8(c) of the Underwriting Agreement)
40
XXXXX XX(d)
Opinion of Ropes & Gray
41
ANNEX II(e)
Opinion of Xxxxxx Godward LLP
42
