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XXX XXXXXXXX XXXXXXX
10,000,000 SHARES OF COMMON STOCK, $1.00 PAR VALUE
Underwriting Agreement
_______________, 1998
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "SELLING
STOCKHOLDERS") of Xxx Xxxxxxxx Xxxxxxx, a Delaware corporation (the "COMPANY"),
propose to sell to the several Underwriters listed in Schedule I hereto (the
"UNDERWRITERS"), an aggregate of 10,000,000 shares of Common Stock, par value
$1.00 per share, of the Company (the "UNDERWRITTEN SHARES") and, for the sole
purpose of covering over-allotments in connection with the sale of the
Underwritten Shares, at the option of the Underwriters, up to an additional
1,500,000 shares of Common Stock of the Company (the "OPTION SHARES"). The
Underwritten Shares and the Option Shares are herein referred to as the
"SHARES". The outstanding shares of Common Stock of the Company are herein
referred to as the "STOCK". The Stock, including the Shares, has attached
thereto rights (the "RIGHTS") to purchase one ten-thousandth of a share of
Series A Junior Participating Preferred Stock for $.225 per share exercisable
only upon the occurrence of certain events. The Rights have been issued pursuant
to a Rights Agreement (the "RIGHTS AGREEMENT") dated as of December 14, 1995
between the Company and The First National Bank of Boston, as Rights Agent.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
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statement, including a prospectus, relating to the Shares and the attached
Rights. The registration statement as amended at the time when it shall become
effective including information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act, is referred to in this Agreement as the "REGISTRATION
STATEMENT", and the prospectus in the form first used to confirm sales of Shares
is referred to in this Agreement as the "PROSPECTUS". If the Company has filed
an abbreviated registration statement to register additional shares of Stock
pursuant to Rule 462(b) and under the Securities Act (the "Rule 462 Registration
Statement"), then any reference to the term "Registration Statement" shall be
deemed to include such Rule 462 Registration Statement. Any reference in this
Agreement to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
to "amend", "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "EXCHANGE ACT") that are deemed to be
incorporated by reference therein.
The Company and each of the Selling Stockholders hereby agrees with the
Underwriters as follows:
1. Each of the Selling Stockholders agrees, severally and not jointly, to
sell the Underwritten Shares to the several Underwriters as hereinafter
provided, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees to purchase, severally and not jointly, from each of the Selling
Stockholders at a purchase price per share of $____ (the "Purchase Price) the
number of Underwritten Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of
Underwritten Shares to be sold by each of the Selling Stockholders as set forth
opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Underwritten Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto and the denominator of which is the aggregate number of
Underwritten Shares to be purchased by all the Underwriters from all the Selling
Stockholders hereunder.
In addition, each of the Selling Stockholders agrees to, severally and not
jointly, sell the Option Shares to the several Underwriters as hereinafter
provided, and each Underwriter on the basis of the representations and
warranties herein
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contained, but subject to the conditions hereinafter stated, shall have the
option to purchase, severally and not jointly, from each of the Selling
Stockholders at the Purchase Price that portion of the number of Option Shares
set forth opposite such Selling Stockholder's name in Schedule II hereto as to
which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the number of Option
Shares set forth opposite such Selling Stockholder's name in Schedule II by a
fraction, the numerator of which is the product of (i) the aggregate number of
Underwritten Shares to be purchased by such Underwriter as set forth opposite
the name of such Underwriter in Schedule I hereto and (ii) the total number of
Option Shares to be purchased by the Underwriters and the denominator of which
is the product of (i) the number of Underwritten Shares to be purchased by all
the Underwriters from all the Selling Stockholders hereunder and (ii) the total
number of Option Shares set forth in Schedule II. Any such election to purchase
Option Shares shall be made in proportion to the number of Option Shares to be
sold by each Selling Stockholder.
The Underwriters may exercise the option to purchase the Option Shares at
any time (but not more than once) on or before the thirtieth day following the
date of this Agreement, by written notice from the Representatives to the
Selling Stockholders. Such notice shall set forth the aggregate number of Option
Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for which may be the same date and
time as the Closing Date (as hereinafter defined) but shall not be earlier than
the Closing Date nor later than the tenth full Business Day (as hereinafter
defined) after the date of such notice (unless such time and date are postponed
in accordance with the provisions of Section 9 hereof). Any such notice shall be
given at least two Business Days prior to the date and time of delivery
specified therein.
2. The Company and the Selling Stockholders understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
(A) the Registration Statement has become effective and (B) the parties hereto
have executed and delivered this Agreement, as in the judgment of the
Representatives is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Selling Stockholders, to you in
the case of the Underwritten Shares, on ___________, 1998, or at such other time
on the same or such other date, not later than the fifth Business Day
thereafter, as you and the Selling Stockholders may agree upon in writing or, in
the case of the Option Shares, on the date and time specified by you in the
written notice of the Underwriters' election to purchase such Option Shares. The
time and date of such payment for the Underwritten Shares are referred to herein
as the "CLOSING DATE" and the time and date for such payment for the Option
Shares, if
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other than the Closing Date, are herein referred to as the "ADDITIONAL CLOSING
DATE". As used herein, the term "BUSINESS DAY" means any day other than a day on
which banks are permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
you for the respective accounts of the several Underwriters of the Shares to be
purchased on such date registered in such names and in such denominations as you
shall request in writing not later than two full Business Days prior to the
Closing Date or the Additional Closing Date, as the case may be, with any
transfer taxes payable in connection with the transfer to the Underwriters of
the Shares duly paid by the Selling Stockholders. The certificates for the
Shares will be made available for inspection and packaging by you at the office
of X.X. Xxxxxx Securities Inc. not later than 1:00 P.M., New York City time, on
the Business Day prior to the Closing Date or the Additional Closing Date, as
the case may be.
4. (a) The Company represents and warrants to each Underwriter and the
Selling Stockholders that:
(i) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the
Securities Act and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as
of the date of the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as amended or
supplemented, if applicable, at the Closing Date or Additional Closing
Date, as the case may be, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; except that the foregoing representations
and warranties shall not apply to statements or omissions in the
Registration Statement and any amendment thereto or the Prospectus and
any amendment or supplement thereto made in reliance upon and in
conformity with information relating to (x) any Underwriter furnished
to the Company in writing by such Underwriter through you expressly
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for use therein and (y) contained the letter dated __, 1998 from the
Selling Stockholder to the Company (the "Selling Stockholder
Information");
(ii) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Exchange Act, and none of such documents when they became
effective or were filed with the Commission contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, and will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(iii) except as noted therein, the consolidated financial
statements, and the related notes thereto, incorporated by reference
in the Registration Statement and the Prospectus present fairly in all
material respects the consolidated financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the
results of their operations and changes in their consolidated cash
flows for the periods specified; and said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules
incorporated by reference in the Registration Statement present fairly
in all material respects the information required to be stated
therein; [and the pro forma financial information, and the related
notes thereto, incorporated by reference in the Registration Statement
and the Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable;
(iv) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any material change in the capital stock of the Company or long-term
debt of the Company and its consolidated subsidiaries taken as a
whole or any material adverse change,
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or any known development involving the reasonable likelihood of a
prospective material adverse change, in the business, operations or
financial condition, of the Company and its consolidated subsidiaries,
taken as a whole, otherwise, in each case, than as set forth or
contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Company nor any of the
consolidated subsidiaries listed on Appendix A hereto (the
"SIGNIFICANT SUBSIDIARIES") has entered into any transaction or
agreement (whether or not in the ordinary course of business) material
to the Company and its consolidated subsidiaries taken as a whole;
(v) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(vi) each of the Company's Significant Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus, and each of the Company's Significant
Subsidiaries that is incorporated under the laws of the United States
or any state or other political subdivision thereof (a "SIGNIFICANT U.
S. SUBSIDIARY") has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole; and, except as set forth in Exhibit 22 to the
Company's Annual Report on Form 10-K for the year ended December 31,
1996, all the outstanding shares of capital stock of each Significant
Subsidiary of the Company have been duly authorized and validly
issued, are fully-paid and non-assessable, and (except, in the case of
foreign subsidiaries, for directors' qualifying shares) are owned by
the
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Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the Company has an authorized capitalization as set forth
in the Prospectus as of the dates provided therein and such authorized
capital stock conforms as to legal matters to the description thereof
set forth in the Prospectus, and all of the outstanding shares of
capital stock of the Company (including the Shares) have been duly
authorized and validly issued, are fully-paid and non-assessable and
are not subject to any pre-emptive or similar rights; and, except as
described in or expressly contemplated by the Prospectus, there are no
outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity
interest in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company or any
such subsidiary, any such convertible or exchangeable securities or
any such rights, warrants or options;
(ix) the Rights Agreement has been duly authorized, executed and
delivered by the Company; the Rights have been duly authorized and
validly issued by the Company; and the Series A Junior Participating
Preferred Stock has been duly authorized by the Company and validly
reserved for issuance upon the exercise of the Rights and, when issued
in accordance with the terms of the Rights Agreement, will be validly
issued, fully paid and non-assessable;
(x) neither the Company nor any of its Significant Subsidiaries
is, or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the
Company or any of its Significant Subsidiaries is a party or by which
it or any of them or any of their respective properties is bound,
except for violations and defaults which individually and in the
aggregate are not material to the Company and its consolidated
subsidiaries taken as a whole; the performance by the Company of its
obligations under this Agreement and the
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consummation of the transactions contemplated herein will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party or
by which the Company or any of its Significant Subsidiaries is bound
or to which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will any such action result
in any violation of the provisions of the Certificate of Incorporation
or the By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its Significant Subsidiaries or
any of their respective properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except such consents, approvals, authorizations, orders,
registrations or qualifications as have been obtained under the
Securities Act and as may be required under state securities or Blue
Sky Laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(xi) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of
its Significant Subsidiaries is or may be a party or to which any
property of the Company or any of its Significant Subsidiaries is or
may be the subject which, if determined adversely to the Company or
any of its Significant Subsidiaries, could individually or in the
aggregate reasonably be expected to have a material adverse effect on
the business, operations, or financial condition of the Company and
its consolidated subsidiaries, taken as a whole, and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
there are no contracts or other documents that are required to be
described in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement that are not described or
filed as required;
(xii) no person has the right to require the Company to register
any securities for offering and sale under the Securities Act by
reason of the filing of the Registration Statement with the
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Commission or the sale of the Shares by the Selling Stockholders
pursuant hereto; and
(xiii) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the stock.
(b) Each of the Selling Stockholders severally represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) all consents, approvals, authorizations and orders necessary
for the execution and delivery by such Selling Stockholder of this
Agreement and for the sale and delivery of the Shares to be sold by
such Selling Stockholder hereunder, have been obtained; and such
Selling Stockholder has full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the Shares to
be sold by such Selling Stockholder hereunder; this Agreement has been
duly authorized, executed and delivered by such Selling Stockholder;
(ii) the sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder
with all of the provisions of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
such Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in any
violation of the Partnership Agreement of such Selling Stockholder or
any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or the property of such Selling Stockholder;
(iii) such Selling Stockholder has good and valid title to the
Shares to be sold at the Closing Date or Additional Closing Date, as
the case may be, by such Selling Stockholder hereunder, free and clear
of all liens, encumbrances, equities or adverse claims other than
those related to this Agreement; such Selling Stockholder will have,
immediately prior to the Closing Date or
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Additional Closing Date, as the case may be, good and valid title to
the Shares to be sold at the Closing Date or Additional Closing Date,
as the case may be, by such Selling Stockholder, free and clear of all
liens, encumbrances, equities or adverse claims other than those
related to this Agreement; and, upon delivery of the certificates
representing such Shares and payment therefor pursuant hereto, good
and valid title to such Shares, free and clear of all liens,
encumbrances, equities or adverse claims, will pass to the several
Underwriters;
(iv) such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares; and
(v) the Selling Stockholder Information does not and will not, as
of the applicable effective date of the Registration Statement and any
amendment thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Selling Stockholder Information included in the Prospectus, as amended
or supplemented, if applicable, furnished to the Company in writing by
such Selling Stockholder expressly for use therein at the Closing Date
or Additional Closing Date, as the case may be, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Each of the Selling Stockholders specifically agrees that the obligations
of such Selling Stockholder hereunder shall not be terminated by operation of
law, whether by dissolution of its partnership, or by the occurrence of any
other event. If any such partnership should be dissolved, or if any other such
event should occur, before the delivery of the Shares by it hereunder,
certificates representing such Shares shall be delivered by or on behalf of such
Selling Stockholder in accordance with the terms and conditions of this
Agreement.
5. (a) The Company covenants and agrees with each of the several
Underwriters as follows:
(i) to use its reasonable efforts to cause the Registration
Statement to become effective at the earliest possible time and, if
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required, to file the final Prospectus with the Commission within the
time periods specified by Rule 424(b) and Rule 430A under the
Securities Act and to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Shares; and to furnish copies of the
Prospectus to the Underwriters in New York City prior to 10:00 a.m.,
New York City time, on the Business Day next succeeding the date of
this Agreement in such quantities as the Representatives may
reasonably request;
(ii) to deliver, at the expense of the Company, to you five
copies of the Registration Statement (as originally filed) and each
amendment thereto, in each case including one signed copy and all
exhibits and documents incorporated by reference therein and, during
the period mentioned in Section 5(a)(v) below, to each of the
Underwriters as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by
reference therein as you may reasonably request;
(iii) during the period mentioned in Section 5(a)(v) below,
before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to you a copy of
the proposed amendment or supplement for review and not to file any
such proposed amendment or supplement to which the Representatives
reasonably object;
(iv) during the period mentioned in Section 5(a)(v)below, to
advise you promptly, and to confirm such advice in writing (A) when
the Registration Statement has become effective, (B) when any
amendment to the Registration Statement has been filed or becomes
effective, (C) when any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you with copies thereof, (D)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (E) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose, and (F) of the receipt by the Company of
any
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notification with respect to any suspension of the qualification of
the Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order, or of any
order preventing or suspending the use of any preliminary prospectus
or the Prospectus, or of any order suspending any such qualification
of the Shares, or notification of any such order thereof and, if
issued, to obtain as soon as possible the withdrawal thereof;
(v) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to
be delivered in connection with sales by the Underwriters or any
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law provided that the preparation and furnishing of any
such amendment or supplement shall be at the expense of the
Underwriters if such amendment or supplement is required more than __
days after the first date of public offering of the Shares;
(vi) to use reasonable efforts to qualify the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions
as you shall reasonably request and to continue such qualification in
effect so long as reasonably required for distribution of the Shares;
provided that the Company shall not be required to file a general
consent to service of process in any jurisdiction;
(vii) to make generally available to its security holders and to
you as soon as practicable an earnings statement covering a period of
at least twelve months beginning with the first fiscal quarter of the
Company occurring after the effective date of the
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Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder;
(viii) for a period of ten years after the date hereof, to
furnish to you copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
(ix) for a period of 90 days after the date of the initial public
offering of the Shares not to (A) sell, pledge, assign or transfer or
dispose of any equity securities of the Company or any option, right,
warrant or contract to purchase any equity securities of the Company
or any securities convertible into or exercisable or exchangeable for
any equity security of the Company or (B) enter into any swap or
other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Stock, whether any such
transaction described in clause (A) or (B) above is to be settled by
delivery of Stock or such other securities, in cash or otherwise
without the prior written consent of X.X. Xxxxxx Securities Inc.,
other than (u) any issuances of Stock, options, phantom stock or
other securities or rights pursuant to any employee or director
compensation, option, savings, benefit or other plan of the Company,
(v) hedging transactions and programs in connection with any such
plan, (w) any issuances upon exercise, conversion or exchange of any
securities or obligations outstanding on the date of this Agreement,
(x) any issuances of equity securities as consideration for an
acquisition, (y) and purchases of stock or uses of put options or
other derivative securities pursuant to the previously announced
stock repurchase program, and (z) any issuances of Stock, and
securities or agreements with respect to, in the aggregate not
greater than 1,000,000 shares of Stock;
(x) to pay or cause to be paid all costs and expenses incident to
the performance of its obligations hereunder, including without
limiting the generality of the foregoing, all costs and expenses (A)
incident to the preparation, reregistration, execution and delivery of
the Shares (other than transfer taxes), (B) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (C) incurred in connection with the
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registration or qualification of the Shares under the laws of such
jurisdictions as you may designate (including reasonable fees of
counsel for the Underwriters and its disbursements), (D) related to
the filing with, and clearance of the offering by, the National
Association of Securities Dealers, Inc., (E) in connection with the
printing (including word processing and duplication costs) and
delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and the furnishing to the Underwriters and dealers of copies
of the Registration Statement and the Prospectus, including mailing
and shipping, as herein provided, (F) any expenses incurred by the
Company in connection with a "road show" presentation to potential
investors, (G) the cost of preparing stock certificates and (H) the
cost and charges of any transfer agent and any registrar.
(b) Each of the Selling Stockholders covenants and agrees with each of
the several Underwriters as follows:
(i) for a period of 90 days after the date of the initial public
offering of the Shares not to (A) sell, pledge, assign or transfer or
dispose of any equity security of the Company or any option, right,
warrant or contract to purchase any equity security of the Company or
any securities convertible into or exercisable or exchangeable for any
equity security of the Company or (B) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Stock, whether any such transaction
described in clause (A) or (B) above is to be settled by delivery of
Stock or such other securities, in cash or otherwise or (C) make any
written demand for the registration of any shares of Stock or any
security convertible into or exercisable or exchangeable for Stock
without the prior written consent of X.X. Xxxxxx Securities Inc. or
announce an intention to do so, in each case other than (x) the Shares
to be sold by such Selling Stockholder hereunder (y) distribution of
Stock by the Selling Stockholders to their respective partners and (z)
donations of Stock to charitable organizations provided that, in the
case of clauses )y) and (z) the recipient of such Stock agrees to be
bound by the foregoing lock-up; and
(ii) to pay or cause to be paid all taxes, if any, on the
transfer and sale of the Shares being sold by such Selling
Stockholder.
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6. The several obligations of the Underwriters hereunder to purchase the
Shares on the Closing Date or the Additional Closing Date, as the case may be,
are subject to the performance by the Company and each of the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) the Registration Statement shall have become effective (or if
a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective) not later than 5:00 P.M., New York City time, on the date
hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under
the Securities Act and in accordance with Section 5(a)(i) hereof; and
all requests for additional information shall have been complied with
to your satisfaction;
(b) the respective representations and warranties of the Company
and the Selling Stockholders contained herein are true and correct on
and as of the Closing Date or the Additional Closing Date, as the case
may be, as if made on and as of the Closing Date or the Additional
Closing Date, as the case may be, and each of the Company and the
Selling Stockholders shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date or the Additional Closing Date, as the case
may be;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date or the Additional Closing Date, as the
case may be, there shall not have occurred any downgrading, nor shall
any notice have been given of (i) any downgrading, (ii) any intended
or potential downgrading or (iii) any review or possible change that
does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any material change in the
capital stock of the Company or long-term debt of the Company and its
consolidated subsidiaries taken as a whole or any material adverse
change, or any known development involving the reasonable likelihood
of
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a prospective material adverse change, in the business, operations or
financial condition of the Company and its consolidated subsidiaries,
taken as a whole, otherwise, in each case, than as set forth or
contemplated in the Prospectus, the effect of which in your reasonable
judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the Closing Date or
the Additional Closing Date, as the case may be, on the terms and in
the manner contemplated in the Prospectus;
(e) you shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, (i) a certificate of an
executive officer of the Company satisfactory to you to the effect set
forth in Sections 6(a), 6(b) and 6(c) (with respect to the respective
representations, warranties, agreements and conditions of the Company)
and to the further effect that there has not occurred any material
adverse change, or any known development involving the reasonable
likelihood of a prospective material adverse change, in the business,
operations or financial condition, of the Company and its consolidated
subsidiaries, taken as a whole, from that set forth or contemplated in
the Prospectus and (ii) a certificate of the Selling Stockholders,
satisfactory to you to the effect set forth in Section 6(b) (with
respect to the respective representations, warranties, agreements and
conditions of the Selling Stockholders);
(f) Xxxxxx X. Xxxxxxxx, Vice Chairman of the Board of Directors
of the Company, shall have furnished to you his written opinion, dated
the Closing Date or the Additional Closing Date, as the case may be,
in form and substance satisfactory to you, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority
to own its properties and conduct its business as described in
the Prospectus as then amended or supplemented;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
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(iii) each of the Company's Significant U.S. Subsidiaries
has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of incorporation
with corporate power and authority to own its properties and
conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than
where the failure to be so qualified and in good standing would
not have a material adverse effect on the Company and its
consolidated subsidiaries taken as a whole; and except as set
forth in Exhibit 22 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1996, all of the outstanding
shares of capital stock of each Significant U.S. Subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge, threatened
to which the Company or any of its Significant U.S. Subsidiaries
is or may be a party or to which any property of the Company or
its Significant U.S. Subsidiaries is or may be the subject which,
if determined adversely to the Company or such Significant U.S.
Subsidiaries, could individually or in the aggregate reasonably
be expected to have a material adverse effect on the business,
operations or financial condition of the Company and its
consolidated subsidiaries taken as a whole; to the best of such
counsel's knowledge, no such proceedings are contemplated by
governmental authorities or threatened by others; and such
counsel does not know of any contracts or other documents of a
character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the
Prospectus;
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(vii) the outstanding shares of capital stock of the Company
(including the Shares) have been duly authorized and are validly
issued, fully paid and non-assessable;
(viii) the statements in the Prospectus under "Description
of Capital Stock", in the Prospectus incorporated by reference
from Item 3 of Part 1 of the Company's Annual Report on Form 10-K
for the year ended December 31, 1996 and in the Registration
Statement in Item 15 [other], insofar as such statements
constitute a summary of the terms of the Stock, legal matters,
documents or proceedings referred to therein, fairly present the
information called for with respect to such terms, legal matters,
documents or proceedings;
(ix) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (except for the financial statements and related
schedules therein, as to which such counsel need express no
opinion) complied as to form when filed with the Commission in
all material respects with the requirements of the Securities Act
and believes that (except for the financial statements and
related schedules therein, as to which such counsel need express
no belief) each part of the Registration Statement (including the
documents incorporated by reference therein) and the prospectus
included therein when such part of the Registration Statement
became effective did not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or supplemented,
if applicable, does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(x) neither the Company nor any of its Significant U.S.
Subsidiaries is, or with the giving of notice or lapse of time or
both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any material
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to which
the Company or any of its Significant U.S. Subsidiaries is a
party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company
and its consolidated subsidiaries
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taken as a whole; and the performance by the Company of its
obligations under this Agreement and the consummation of the
transactions contemplated herein will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known to
such counsel to which the Company or any of its Significant U.S.
Subsidiaries is a party or by which the Company or any of its
Significant U.S. Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant U.S.
Subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation
or the By-Laws of the Company or any applicable law or statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, its subsidiaries or
any of their respective properties;
(xi) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, orders,
registrations or qualifications as have been obtained under the
Securities Act and as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters;
(xii) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Company prior to the Closing Date or the Additional Closing
Date, as the case may be (except for the financial statements and
related schedules therein, as to which such counsel need express
no opinion), when they were filed with the Commission, complied
as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; and
(xiii) the Rights Agreement has been duly authorized,
executed and delivered by the Company; the Rights have been duly
authorized and issued by the Company, and the Series A Junior
Participating Preferred Stock has been duly authorized by the
Company and validly reserved for issuance upon the exercise of
the Rights and, when issued upon such exercise in accordance with
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the terms of the Rights Agreement, will be validly issued, fully
paid and non-assessable.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Delaware and Massachusetts, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable
laws and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel upon which they
relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon.
With respect to the matters to be covered in Section 6(f)(ix) and
Section 6(f)(xii) above counsel may state his opinion and belief is
based upon his participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto
and review and discussion of the contents thereof but is without
independent check or verification except as specified.
The opinion described above shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
(g) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Selling
Stockholders, shall have furnished to the Representatives their
written opinion, dated the Closing Date, or the Additional Closing
Date, as the case may be, in form and substance satisfactory to the
Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Stockholders;
(ii) each Selling Stockholder is the sole record owner of
all of the Underwritten Shares or Option Shares then to be sold
by such Selling Stockholder, each Selling Stockholder has full
partnership power, right and authority to sell the applicable
Shares; upon payment for and delivery of the Shares in accordance
with this Agreement, the Underwriters will acquire all of the
rights of each Selling Stockholder in the applicable Shares; and
(assuming that the Underwriters do not have notice of any adverse
claim to
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the Shares) the Underwriters will acquire their interest in such
Shares free of any adverse claim (within the meaning of the
Uniform Commercial Code as in effect in the State of New York);
(h) on the date hereof and also on the Closing Date or Additional
Closing Date, as the case may be, KPMG Peat Marwick LLP shall have
furnished to you letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus;
(i) the Representatives shall have received on and as of the
Closing Date or Additional Closing Date, as the case may be, an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, with
respect to the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters; and
(j) on or prior to the Closing Date or Additional Closing Date,
as the case may be, the Company and the Selling Stockholders shall
have furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Selling
Stockholder and each Underwriter and each person, if any, who controls any
Selling Stockholder or any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
the legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein and except in the case of any Selling Stockholder or any person
controlling such Selling Stockholder for the Selling Stockholder Information,
provided that the
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foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) and, if
required by law, a copy of the Prospectus (as so amended or supplemented) shall
not have been furnished to such person at or prior to the written confirmation
of the sale of such Shares to such person.
Each of the Selling Stockholders severally in proportion to the number of
Shares to be sold by such Selling Stockholder hereunder agrees to indemnify and
hold harmless the Company and each Underwriter and each person, if any, who
controls the Company or any Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to the Selling Stockholder Information in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any preliminary
prospectus, provided that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Shares if
such untrue statement or omission or alleged untrue statement or omission made
in such preliminary prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Shares to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act and each of the
Selling Stockholders to the same extent as the foregoing indemnity from the
Company and the Selling Stockholders to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to the preceding paragraphs
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of this Section 7, such person (the "INDEMNIFIED PERSON") shall promptly notify
the person or persons against whom such indemnity may be sought (each an
"INDEMNIFYING PERSON") in writing provided that the failure of an Indemnified
Person to give notice as provided herein shall not relieve the Indemnifying
Person of its obligations under this Section 7, and such Indemnifying Persons,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Persons may designate in such proceeding and shall
pay the fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person and not the Indemnifying Persons unless (i) the
Indemnifying Persons and the Indemnified Person shall have mutually agreed to
the contrary, (ii) the Indemnifying Persons have failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both an Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that no
Indemnifying Person shall, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for the Underwriters and such control persons
of Underwriters shall be designated in writing by X.X. Xxxxxx Securities Inc.
and any such separate firm for the Company, its directors, its officers who sign
the Registration Statement and such control persons of the Company shall be
designated in writing by the Company and any such separate firm for the Selling
Stockholders shall be designated in writing by the Selling Stockholders. No
Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, each Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in the first four paragraphs of this
Section 7 is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one
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hand and the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Stockholders on the one hand and the Underwriters
on the other hand shall be deemed to be in the same respective proportions as
the net proceeds from the offering (before deducting expenses) received by the
Selling Stockholders and the total underwriting discounts and the commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus bear to the aggregate public offering price of the
Shares. The relative fault of the Company and the Selling Stockholders on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Selling Stockholders or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Selling Stockholders or the
Underwriters were treated as one entity for such purposes) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective number of Shares set forth
opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity, except that the indemnity and contribution agreements
contained in this Section 7 shall supersede the rights and remedies of the
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Company and the Selling Stockholders under the Registration Rights Agreement
dated as of September 12, 1996 among such parties solely with respect to the
offering of Shares contemplated hereby.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company and the Selling Stockholders
set forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any other person
controlling the Company or the Selling Stockholders and (iii) acceptance of and
payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in your absolute discretion, by notice given to the Selling
Stockholders and the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (or, in the case of the Option Shares,
prior to the Additional Closing Date) (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State or authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
calamity or crisis in financial markets or elsewhere that, in you reasonable
judgment, is material and adverse and which, in your reasonable judgment, makes
it impracticable to market the Shares being delivered at the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in Schedule I bears to the aggregate
number of Underwritten
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Shares set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to Section 1 be increased pursuant
to this Section 9 by an amount in excess of one-tenth of such number of Shares
without the written consent of such Underwriter. If on the Closing Date or the
Additional Closing Date, as the case may be, any Underwriter or Underwriters
shall fail or refuse to purchase Shares which it or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date, and arrangements satisfactory to you and the Selling
Stockholders for the purchase of such Shares are not made within 36 hours after
such default, this Agreement (or the obligations of the several Underwriters to
purchase the Option Shares, as the case may be) shall terminate without
liability on the part of any non-defaulting Underwriter or the Selling
Stockholder. In any such case either you or the Selling Stockholders shall have
the right to postpone the Closing Date (or, in the case of the Option Shares,
the Additional Closing Date), but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Selling Stockholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any of the Company or the
Selling Stockholders shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by the Underwriter in connection with this Agreement or the
offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Selling Stockholders and the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of
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Shares from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly or
by X.X. Xxxxxx Securities Inc. alone on behalf of the Underwriters, and any such
action taken by you jointly or by X.X. Xxxxxx Securities Inc. alone shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representatives, c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax:______); Attention:
Syndicate Department. Notices to the Company shall be given to it at
____________, _____________, ____________, (telefax:________);
Attention:____________. Notices to the Selling Stockholders shall be given to
them at ________________, _______________, _______________, ________________,
(telefax: ___________); Attention: _________________.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
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If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
XXX XXXXXXXX XXXXXXX
By:
------------------------------
Name:
Title:
Selling Stockholders
DI ASSOCIATES L.P.
By:
------------------------------
Name:
Title:
KKR PARTNERS II, L.P.
By:
------------------------------
Name:
Title:
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Accepted:_________, 1998
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
By: X.X. Xxxxxx Securities Inc.
Acting on behalf of itself and the several Underwriters named above..
By:
------------------------------
Title:
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SCHEDULE I
NUMBER OF SHARES
UNDERWRITER TO BE PURCHASED
----------- ----------------
X.X. Xxxxxx Securities Inc..........................
Credit Suisse First Boston Corporation..............
Xxxxxxx, Sachs & Co.................................
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated...............................
Xxxxxx Xxxxxxx & Co. Incorporated ..................
----------
Total 10,000,000
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SCHEDULE II
NUMBER OF NUMBER OF
SELLING STOCKHOLDERS UNDERWRITTEN SHARES OPTION SHARES
--------------------- ------------------- ------------
DI Associates L.P.
KKR Partners II, L.P.
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Exhibit A
, 1998
X.X. Xxxxxx Securities Inc.
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you propose to enter into an Underwriting
Agreement (the "Underwriting Agreement") with Xxx Xxxxxxxx Xxxxxxx, a Delaware
corporation (the "Company"), providing for the public offering (the "Public
Offering") by the several Underwriters named therein (the "Underwriters"), of up
to 11,500,000 shares (the "Shares") of the Common Stock, $1.00 par value, of the
Company (the "Common Stock").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of X.X. Xxxxxx Securities
Inc., it will not, during the period commencing on the date hereof and ending 90
days after the date of the final prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, warrant or right to purchase or otherwise
transfer or dispose of, directly or indirectly, any Common Stock or any
securities that are convertible into or exercisable or exchangeable for Common
Stock or (2) enter into any swap or other agreement that transfers, in whole or
in part, the economic consequences of ownership of Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise or (3)
make any demand for or exercise any right with respect to the registration of
any Common Stock or any security convertible into or exercisable for Common
Stock. The foregoing sentence shall not apply to
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the issuance of Common Stock in connection with the transactions described in
the final prospectus relating to the Public Offering.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
------------------------------
Name:
Title:
2
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Appendix A
LIST OF SIGNIFICANT SUBSIDIARIES
00
Xxxxxxxx X
LIST OF AGREEMENTS
4
