As filed with the Securities and Exchange Commission on September 18, 1996
Registration No. 333-11103
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------
SAKS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 5311 52-1685667
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification No.)
organization) Code Number)
</TABLE>
------------
12 EAST 49TH STREET
NEW YORK, NEW YORK 10017
(212) 940-4048
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------
JOAN F. KREY
GENERAL COUNSEL
SAKS HOLDINGS, INC.
12 EAST 49TH STREET
NEW YORK, NEW YORK 10017
(212) 940-4048
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------
Copies to:
<TABLE>
<S> <C>
CHARLES K. MARQUIS PATRICIA A. CERUZZI
STEVEN R. FINLEY SULLIVAN & CROMWELL
GIBSON, DUNN & CRUTCHER LLP 125 BROAD STREET
200 PARK AVENUE NEW YORK, NEW YORK 10004
NEW YORK, NEW YORK 10166 (212) 558-4000
(212) 351-4000
</TABLE>
------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Registrant's expenses in connection with the offering described in this
registration statement are set forth below. All amounts except the Securities
and Exchange Commission registration fee, the NASD filing fee and the NYSE
listing fee are estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........... 109,260
NASD filing fee............................................... 30,500
Printing expenses............................................. 500,000
Accounting fees and expenses.................................. 50,000
Legal fees and expenses....................................... 100,000
Fees and expenses (including legal fees) for qualifications
under state securities laws................................... 30,000
Transfer agent's fees and expenses............................ 50,000
Miscellaneous................................................. 130,240
----------
Total..................................................... $1,000,000
----------
----------
</TABLE>
ITEM 14. IDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
registrant under certain circumstances from liabilities (including reimbursement
of expenses incurred) arising under the Securities Act of 1933, as amended (the
"Act").
As permitted by the DGCL, the registrant's Certificate of Incorporation (the
"Charter") provides that, to the fullest extent permitted by the DGCL, no
director shall be liable to the registrant or to its stockholders for monetary
damages for breach of his fiduciary duty as a director. Delaware law does not
permit the elimination of liability (i) for any breach of the director's duty of
loyalty to the registrant or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or stock redemptions
or repurchases, or (iv) for any transaction from which the director derives an
improper personal benefit. The effect of this provision in the Charter is to
eliminate the rights of the registrant and its stockholders (through
stockholders' derivative suits on behalf of the registrant) to recover monetary
damages against a director for breach of fiduciary duty as a director thereof
(including breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i)-(iv), inclusive, above. These
provisions will not alter the liability of directors under federal securities
laws.
The registrant's Bylaws (the "Bylaws") provide that the registrant may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the registrant) by reason of the fact that he is or was a director,
officer, employee or agent of the registrant or is or was serving at the request
of the registrant as a director, officer, employee or agent of any other
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of
II-1
<PAGE>
the registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful.
The Bylaws also provide that the registrant may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the registrant to procure
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the registrant unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine that despite the adjudication of liability but in view of all the
circumstances of the case, such person if fairly and reasonably entitled to be
indemnified for such expenses which the Court of Chancery of the State of
Delaware or the court in which such action was brought shall deem proper.
The Bylaws also provide that to the extent a director or officer of the
registrant has been successful in the defense of any action, suit or proceeding
referred to in the previous paragraphs or in the defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for in the Bylaws shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
registrant may purchase and maintain insurance on behalf of a director or
officer of the registrant against any liability asserted against him or incurred
by him in any such capacity or arising out of his status as such whether or not
the registrant would have the power to indemnify him against such liabilities
under such Bylaws.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The registrant has not issued or sold securities within the past three years
pursuant to offerings that were not registered under the Securities Act of 1933,
as amended (the "Securities Act"), except as follows:
<TABLE>
<C> <S>
(a) In August 1993, Saks Holdings sold 260 of its Class C Shares to Robert Ramsden for
an aggregate of $26,000. These shares have since been repurchased by Saks Holdings.
(b) In December 1994, Saks Holdings sold 357 of its Class C Shares to Owen Dorsey for
an aggregate of $35,700.
(c) In December 1994, Saks Holdings sold 260 of its Class C Shares to Richard Zannino
for an aggregate of $26,000.
(d) In November 1995, Saks Holdings sold 97 of its Class C Shares to Stephen Bock for
an aggregate of $9,700.
(e) In December 1995, Saks Investments Limited, Saks Equity Limited and Saks Capital
Limited each converted 2,400 Class D Shares into 2,400 Class C Shares pursuant to
Section 6(d) of the Certificate of Designations of Saks Holdings.
(f) In January 1996, Saks Holdings sold 357 of its Class C Shares to Gail Pisano for an
aggregate of $35,700.
(g) In February 1996, Saks Holdings sold 357 of its Class C Shares to Dan Smith for an
aggregate of $35,700.
(h) In February 1996, Saks Holdings sold 357 of its Class C Shares to Wayne Meichner
for an aggregate of $35,700.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
(i) In February 1996, Saks Holdings sold 357 of its Class C Shares to Barbara Lynne
Ronon for an aggregate of $35,700.
(j) In February 1996, Saks Holdings sold 357 of its Class C Shares to Sheri Wilson-Gray
for an aggregate of $35,700.
(k) In February 1996, Saks Holdings sold 260 of its Class C Shares to Mark Hood for an
aggregate of $26,000.
(l) On various dates from January 30, 1993 through February 28, 1996, pursuant to the
Old Incentive Plan, Saks Holdings awarded to key employees of Saks (i)
Non-qualified Options, exercisable in whole or in part at $100.00 ($20.00 giving
effect to the stock split in the form of a dividend effected on April 26, 1996 (the
"Stock Split")) per share to purchase an aggregate of 129,313 (646,565 giving
effect to the Stock Split) Class C Shares and (ii) ISOs, exercisable in whole or in
part at $100.00 ($20.00 giving effect to the Stock Split) per share to purchase an
aggregate of 47,557 (237,785 giving effect to the Stock Split) Class C Shares.
(m) On February 28, 1996, pursuant to the New Incentive Plan, Saks Holdings issued
ISOs, exercisable in whole or in part at $80.00 ($16.00 giving effect to the Stock
Split) per share, to purchase 324,171 (1,620,855 giving effect to the Stock Split)
Class C Shares in exchange for the cancellation of Options issued pursuant to the
Old Incentive Plan to purchase an identical number of Class C Shares.
(n) On various dates from February 29, 1996 through April 19, 1996, pursuant to the New
Incentive Plan, Saks Holdings issued ISOs, exercisable in whole or in part at
$80.00 ($16.00 giving effect to the Stock Split) per share, to purchase 51,068
(255,340 giving effect to the Stock Split) Class C Shares.
(o) On May 22, 1996, Saks Holdings granted ISOs, pursuant to the New Incentive Plan, to
purchase 1,199,750 shares of Common Stock, exercisable in whole or in part at
$25.00 per share.
</TABLE>
The transactions set forth above were undertaken in reliance upon the
exemptions from the registration requirements of the Securities Act afforded by
(i) Section 4(2) thereof and/or Regulation D promulgated thereunder, as sales
not involving a public offering, and/or (ii) Rule 701 promulgated thereunder, as
sales by an issuer to employees, directors, officers, consultants or advisors
pursuant to written compensatory benefit plans or written contracts relating to
the compensation of such persons. The purchases of the securities described
above acquired them for their own account not with a view to any distribution
thereof to the public. The certificates evidencing the securities bear legends
stating that the shares may not be offered, sold or transferred other than
pursuant to an effective registration statement under the Securities Act or an
exemption from such registration requirements.
With respect to the transaction described in paragraphs (l) through (o)
above, on June 10, 1996, Saks Holdings registered on Form S-8 under the
Securities Act the exercise of options granted under the Plans as well as any
further grants of options granted under the New Incentive Plan.
Upon the closing of Saks Holdings' initial public offering on May 28, 1996,
all of Saks Holdings' capital stock, including all Class C Shares, was converted
into Common Stock.
II-3
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ----------- -------------------------------------------------------------------------------
<S> <C>
1.01 Form of Underwriting Agreement
1.02 Form of International Underwriting Agreement
3.01* Amended and Restated Certificate of Incorporation of Saks Holdings, as filed
with the Delaware Secretary of State on May 28, 1996
3.02* Bylaws of Saks Holdings, as adopted on August 6, 1990
4.01* See Exhibits 3.01 and 3.02 as to the rights of holders of Saks Holdings' Common
Stock
4.02* Form of Stock Certificate of the Common Stock of Saks Holdings
4.03.1* Amended and Restated Credit Agreement, dated as of July 1, 1993, among Saks,
Chemical Bank and Bankers Trust Company as managing agents, Chemical Bank,
Bankers Trust Company, the CIT Group/Business Credit, Inc. and Barclays Bank
PLC as co-agents, and Chemical Bank as administrative agent (the "Credit
Facility")
4.04.2* First Amendment to the Credit Facility, dated as of March 1, 1995
4.04.3* Second Amendment to the Credit Facility, dated as of October 24, 1995
4.04.4* Third Amendment to the Credit Facility, dated as of March 5, 1996
4.04.5* Fourth Amendment to the Credit Facility, dated as of April 10, 1996
4.04.6* Fifth Amendment to the Credit Facility, dated as of April 18, 1996
4.04.7** Sixth Amendement and Consent to the Credit Facility, dated as of August 28,
1996
4.05* Amended and Restated Loan and Security Agreement dated as of
May 12, 1995 between Fifth Avenue Capital Trust ("FACT") and certain direct and
indirect wholly-owned subsidiaries of Saks (the "Borrowers")
4.06* Trust and Servicing Agreement dated as of May 12, 1995 among FACT, Bankers
Trust Company, as servicer, and Marine Midland Bank, as trustee
4.07* Amended and Restated Trust Agreement, dated as of May 12, 1995, among Saks,
HNY, Inc. and Wilmington Company, as owner trustee
4.08* Indenture, dated as of July 1, 1993, between Saks and AIBC Services N.V., as
trustee
4.09* First Supplemental Indenture, dated as of April 22, 1996, between Saks and AIBC
Services N.V., as trustee
4.10 Second Supplemental Indenture, dated as of September , 1996, between Saks and
AIBC Services N.V. as trustee
4.11 Registration Rights Agreement, dated as of August 16, 1996, among Saks Holdings
and certain stockholders of Saks
5.01 Opinion of Gibson, Dunn & Crutcher LLP
10.01.1* Amended and Restated Pooling & Servicing Agreement, dated as of December 16,
1991, among SFA Finance Company, Saks and Bankers Trust Company, as trustee
(the "1991 P&S")
10.01.2* First Amendment to the 1991 P&S, dated as of November 5, 1992
10.01.3* Second Amendment to the 1991 P&S, dated as of October 26, 1993
10.02.1* Second Amended and Restated Receivables Purchase Agreement, dated as of
December 16, 1991, between Saks and SFA Finance Company (the "Receivables
Purchase Agreement")
10.02.2* First Amendment to the 1991 Receivables Purchase Agreement, dated as of
November 5, 1992
10.02.3* Second Amendment to the 1991 Receivables Purchase Agreement, dated as of
October 26, 1993
10.03.1* Series 1991-2 Supplement, dated as of December 16, 1991, among SFA Finance
Company, Saks, MHTC, as administrative agent, and Bankers Trust Company, as
trustee (the "1991-2 Supplement")
10.03.2* First Amendment to the 1991-2 Supplement, dated as of July 22, 1992
10.03.3* Second Amendment to the 1991-2 Supplement, dated as of August 20, 1992
10.03.4* Third Amendment to the 1991-2 Supplement, dated as of November 5, 1992
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ----------- -------------------------------------------------------------------------------
<S> <C>
10.03.5* Fourth Amendment to the 1991-2 Supplement, dated as of May 20, 1993
10.03.6* Fifth Amendment to the 1991-2 Supplement, dated as of October 28, 1993
10.03.7* Sixth Amendment to the 1991-2 Supplement, dated as of September 30, 1994
10.04.1* Class C Supplement to Series 1991-2 Supplement, dated as of
November 5, 1992, among SFA Finance Company, Saks and Bankers Trust Company, as
trustee (the "1991-2(C) Supplement")
10.04.2* First Amendment to the 1991-2(C) Supplement, dated as of September 30, 1994
10.05* Class B Supplement to Series 1991-2 Supplement, dated as of September 30, 1994,
among SFA Finance Company, Saks and Bankers Trust Company, as trustee
10.06* Series 1995-1 Supplement, dated as of November 13, 1995, among SFA Finance
Company, Saks, Swiss Bank Corporation, New York Branch, as administrative
agent, and Bankers Trust Company, as trustee
10.07* Transition Supplement to the 1991 P&S, dated as of April 25, 1996, among SFA
Finance Company, Saks and Bankers Trust Company, as trustee
10.08* Pooling and Servicing Agreement, dated as of April 25, 1996, among SFA Finance
Company, Saks and Bankers Trust Company, as trustee (the "1996 P&S")
10.09* Series 1996-1 Supplement to the 1996 P&S, dated as of April 25, 1996, among SFA
Finance Company, Saks and Bankers Trust Company, as trustee
10.10* Third Amended and Restated Receivables Purchase Agreement, dated as of April
25, 1996, between Saks and SFA Finance Company
10.11* Series 1996-2 Supplement to the 1996 P&S, dated as of April 25, 1996, among SFA
Finance Company, Saks and Bankers Trust Company, as trustee
10.12* Purchase Agreement, dated May 4, 1995 among Saks, FACT, the Borrowers, Goldman,
Sachs & Company and Chemical Securities, Inc., with respect to the sale of
Commercial Mortgage Pass-Through Certificates due May 12, 2002
10.13* Saks Fifth Avenue Supplemental Pension Plan, effective July 2, 1990
10.14* Saks Holdings, Inc. Senior Management Stock Incentive Plan, dated as of October
17, 1990 (the "Old Incentive Plan")
10.15* Standard Form of Stock Option Agreement Pursuant to the Old Incentive Plan
10.16.1* Saks Holdings, Inc. 1996 Management Stock Incentive Plan, dated as of February
1, 1996 (the "New Incentive Plan")
10.16.2* Amendment to the New Incentive Plan
10.17* Standard Form of Stock Option Agreement Pursuant to the New Incentive Plan
10.18* Amended and Restated Employment Agreement, dated as of March 1, 1996, between
Saks and Philip B. Miller
10.19* Amended and Restated Employment Agreement, dated as of March 1, 1996, between
Saks and Rose Marie Bravo
10.20* Amended and Restated Employment Agreement, dated as of March 1, 1996, between
Saks and Owen E. Dorsey
10.21* Employment Agreement, dated as of March 1, 1996, between Saks and Brian E.
Kendrick
10.22* Agreement for Management Advisory and Consulting Services, dated as of July 2,
1995, between Saks and III
10.23* Acquisitions Advisory Agreement, dated as of January 29, 1995, between Saks and
III
10.24* Public Company Expenses Agreement, dated as of April 27, 1996, between Saks
Holdings and Saks.
10.25* Form of Common Stock Purchase Agreement between Saks Holdings and Investcorp,
S.A.
21.01* Subsidiaries of Saks Holdings
23.01** Consent of Coopers & Lybrand L.L.P.
23.02 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.01)
24.01** Power of Attorney (included on signature page of Registration Statement)
</TABLE>
- ------------
* Incorporated herein by reference to Saks Holdings' registration statement on
Form S-1 (File No. 333-2426)
** Previously filed.
II-5
<PAGE>
ITEM 17. UNDERTAKINGS
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(b) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 2 to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in The
City of New York, State of New York, on September 17, 1996.
SAKS HOLDINGS, INC.
By /s/ PHILIP B. MILLER
................................
Philip B. Miller
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 2 to the Registration Statement has been signed by the following
persons in the capacity indicated on September 17, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ---------------------------------------- ------------------------------------------------
<S> <C>
/s/ PHILIP B. MILLER Chairman of the Board and
........................................ Chief Executive Officer
Philip B. Miller (Principal Executive Officer)
/s/ BRIAN E. KENDRICK Vice Chairman of the Board and
........................................ Chief Operating Officer
Brian E. Kendrick
* President and Director
........................................
Rose Marie Bravo
* Executive Vice President,
........................................ Chief Financial Officer and Treasurer
Richard F. Zannino (Principal Financial Officer)
* Director
........................................
Savio W. Tung
* Director
........................................
Jon P. Hedley
* Director
........................................
E. Garrett Bewkes III
* Director
........................................
Charles J. Philippin
* Director
........................................
Stephen I. Sadove
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ---------------------------------------- ------------------------------------------------
* Director
........................................
Brian Ruder
<S> <C>
/s/ MARK E. HOOD Senior Vice President--Finance
........................................ (Principal Accounting Officer)
Mark E. Hood
</TABLE>
*By: /s/ MARK E. HOOD
....................................
Mark E. Hood
Attorney in Fact
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ----------- ------------------------------------------------------------------------ ----
<S> <C> <C>
1.01 Form of Underwriting Agreement
1.02 Form of International Underwriting Agreement
3.01* Amended and Restated Certificate of Incorporation of Saks Holdings, as
filed with the Delaware Secretary of State on May 28, 1996
3.02* Bylaws of Saks Holdings, as adopted on August 6, 1990
4.01* See Exhibits 3.01 and 3.02 as to the rights of holders of Saks Holdings'
Common Stock
4.02* Form of Stock Certificate of the Common Stock of Saks Holdings
4.03.1* Amended and Restated Credit Agreement, dated as of July 1, 1993, among
Saks, Chemical Bank and Bankers Trust Company as managing agents,
Chemical Bank, Bankers Trust Company, the CIT Group/Business Credit,
Inc. and Barclays Bank PLC as co-agents, and Chemical Bank as
administrative agent (the "Credit Facility")
4.04.2* First Amendment to the Credit Facility, dated as of March 1, 1995
4.04.3* Second Amendment to the Credit Facility, dated as of October 24, 1995
4.04.4* Third Amendment to the Credit Facility, dated as of March 5, 1996
4.04.5* Fourth Amendment to the Credit Facility, dated as of April 10, 1996
4.04.6* Fifth Amendment to the Credit Facility, dated as of April 18, 1996
4.04.7** Sixth Amendement and Consent to the Credit Facility, dated as of August
28, 1996
4.05* Amended and Restated Loan and Security Agreement dated as of
May 12, 1995 between Fifth Avenue Capital Trust ("FACT") and certain
direct and indirect wholly-owned subsidiaries of Saks (the "Borrowers")
4.06* Trust and Servicing Agreement dated as of May 12, 1995 among FACT,
Bankers Trust Company, as servicer, and Marine Midland Bank, as trustee
4.07* Amended and Restated Trust Agreement, dated as of May 12, 1995, among
Saks, HNY, Inc. and Wilmington Company, as owner trustee
4.08* Indenture, dated as of July 1, 1993, between Saks and AIBC Services
N.V., as trustee
4.09* First Supplemental Indenture, dated as of April 22, 1996, between Saks
and AIBC Services N.V., as trustee
4.10 Second Supplemental Indenture, dated as of September , 1996, between
Saks and AIBC Services N.V. as trustee
4.11 Registration Rights Agreement, dated as of August 16, 1996, among Saks
Holdings and certain stockholders of Saks
5.01 Opinion of Gibson, Dunn & Crutcher LLP
10.01.1* Amended and Restated Pooling & Servicing Agreement, dated as of December
16, 1991, among SFA Finance Company, Saks and Bankers Trust Company, as
trustee (the "1991 P&S")
10.01.2* First Amendment to the 1991 P&S, dated as of November 5, 1992
10.01.3* Second Amendment to the 1991 P&S, dated as of October 26, 1993
10.02.1* Second Amended and Restated Receivables Purchase Agreement, dated as of
December 16, 1991, between Saks and SFA Finance Company (the
"Receivables Purchase Agreement")
10.02.2* First Amendment to the 1991 Receivables Purchase Agreement, dated as of
November 5, 1992
10.02.3* Second Amendment to the 1991 Receivables Purchase Agreement, dated as of
October 26, 1993
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ----------- ------------------------------------------------------------------------ ----
<S> <C> <C>
10.03.1* Series 1991-2 Supplement, dated as of December 16, 1991, among SFA
Finance Company, Saks, MHTC, as administrative agent, and Bankers Trust
Company, as trustee (the "1991-2 Supplement")
10.03.2* First Amendment to the 1991-2 Supplement, dated as of July 22, 1992
10.03.3* Second Amendment to the 1991-2 Supplement, dated as of August 20, 1992
10.03.4* Third Amendment to the 1991-2 Supplement, dated as of November 5, 1992
10.03.5* Fourth Amendment to the 1991-2 Supplement, dated as of May 20, 1993
10.03.6* Fifth Amendment to the 1991-2 Supplement, dated as of October 28, 1993
10.03.7* Sixth Amendment to the 1991-2 Supplement, dated as of September 30, 1994
10.04.1* Class C Supplement to Series 1991-2 Supplement, dated as of
November 5, 1992, among SFA Finance Company, Saks and Bankers Trust
Company, as trustee (the "1991-2(C) Supplement")
10.04.2* First Amendment to the 1991-2(C) Supplement, dated as of September 30,
1994
10.05* Class B Supplement to Series 1991-2 Supplement, dated as of September
30, 1994, among SFA Finance Company, Saks and Bankers Trust Company, as
trustee
10.06* Series 1995-1 Supplement, dated as of November 13, 1995, among SFA
Finance Company, Saks, Swiss Bank Corporation, New York Branch, as
administrative agent, and Bankers Trust Company, as trustee
10.07* Transition Supplement to the 1991 P&S, dated as of April 25, 1996, among
SFA Finance Company, Saks and Bankers Trust Company, as trustee
10.08* Pooling and Servicing Agreement, dated as of April 25, 1996, among SFA
Finance Company, Saks and Bankers Trust Company, as trustee (the "1996
P&S")
10.09* Series 1996-1 Supplement to the 1996 P&S, dated as of April 25, 1996,
among SFA Finance Company, Saks and Bankers Trust Company, as trustee
10.10* Third Amended and Restated Receivables Purchase Agreement, dated as of
April 25, 1996, between Saks and SFA Finance Company
10.11* Series 1996-2 Supplement to the 1996 P&S, dated as of April 25, 1996,
among SFA Finance Company, Saks and Bankers Trust Company, as trustee
10.12* Purchase Agreement, dated May 4, 1995 among Saks, FACT, the Borrowers,
Goldman, Sachs & Company and Chemical Securities, Inc., with respect to
the sale of Commercial Mortgage Pass-Through Certificates due May 12,
2002
10.13* Saks Fifth Avenue Supplemental Pension Plan, effective July 2, 1990
10.14* Saks Holdings, Inc. Senior Management Stock Incentive Plan, dated as of
October 17, 1990 (the "Old Incentive Plan")
10.15* Standard Form of Stock Option Agreement Pursuant to the Old Incentive
Plan
10.16.1* Saks Holdings, Inc. 1996 Management Stock Incentive Plan, dated as of
February 1, 1996 (the "New Incentive Plan")
10.16.2* Amendment to the New Incentive Plan
10.17* Standard Form of Stock Option Agreement Pursuant to the New Incentive
Plan
10.18* Amended and Restated Employment Agreement, dated as of March 1, 1996,
between Saks and Philip B. Miller
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ----------- ------------------------------------------------------------------------ ----
<S> <C> <C>
10.19* Amended and Restated Employment Agreement, dated as of March 1, 1996,
between Saks and Rose Marie Bravo
10.20* Amended and Restated Employment Agreement, dated as of March 1, 1996,
between Saks and Owen E. Dorsey
10.21* Employment Agreement, dated as of March 1, 1996, between Saks and Brian
E. Kendrick
10.22* Agreement for Management Advisory and Consulting Services, dated as of
July 2, 1995, between Saks and III
10.23* Acquisitions Advisory Agreement, dated as of January 29, 1995, between
Saks and III
10.24* Public Company Expenses Agreement, dated as of April 27, 1996, between
Saks Holdings and Saks.
10.25* Form of Common Stock Purchase Agreement between Saks Holdings and
Investcorp, S.A.
21.01* Subsidiaries of Saks Holdings
23.01** Consent of Coopers & Lybrand L.L.P.
23.02 Consent of Gibson, Dunn & Crutcher LLP (contained in Exhibit 5.01)
24.01** Power of Attorney (included on signature page of Registration Statement)
</TABLE>
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* Incorporated herein by reference to Saks Holdings' registration statement on
Form S-1 (File No. 333-2426)
** Previously filed.
EXHIBIT 1.01
Draft of September 14, 1996
Saks Holdings, Inc.
Common Stock
(par value $0.01 per share)
Underwriting Agreement
(U.S. Version)
September , 1996
Goldman, Sachs & Co.,
CS First Boston Corporation,
Morgan Stanley & Co. Incorporated,
Salomon Brothers Inc,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Saks Holdings, Inc., a Delaware corporation (the "Company"),
propose, 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
6,400,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 960,000 additional shares (the "Optional Shares") of Common Stock, par
value $0.01 per share ("Stock") of the Company (the Firm Shares and the Optional
Shares that the Underwriters elect to purchase pursuant to Section 2 hereof
being collectively called the "Shares").
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement (the
"International Underwriting Agreement") providing for the sale by the Selling
Stockholders of up to a total of 1,840,000 shares of Stock (the "International
Shares"), including the overallotment option thereunder, through arrangements
with certain underwriters outside the United States (the "International
Underwriters"), for whom Goldman Sachs International, CS First Boston Limited,
Morgan Stanley & Co. International Limited and Salomon Brothers International
Limited are acting as lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
International Agreement are hereby expressly made conditional on one another.
The Underwriters hereunder and the International Underwriters are simultaneously
entering into an Agreement between U.S. and International Underwriting
Syndicates (the "Agreement between Syndicates") which provides, among other
<PAGE>
things, for the transfer of shares of Stock between the two syndicates. Two
forms of prospectus are to be used in connection with the offering and sale of
shares of Stock contemplated by the foregoing, one relating to the Shares
hereunder and the other relating to the International Shares. The latter form
of prospectus will be identical to the former except for the front cover page,
back cover page, and the text under the caption "Underwriting" and for the
addition of a section captioned "Certain United States Tax Consequences to Non-
U.S. Holders". Except as used in Sections 2, 3, 4, 9 and 12 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 represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-11103) (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, to the knowledge of the Company, 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 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 and did not contain an untrue statement
-2-
<PAGE>
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
Goldman, Sachs & 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(l) 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 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 light of the circumstances under which they were
made in the case of the Prospectus and any amendment or supplement thereto,
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 Goldman, Sachs & 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(l) of Form S-1;
(iv) Neither the Company nor any of its subsidiaries listed on
Schedule III hereto (its "Subsidiaries"), which listing includes each of
the Company's "significant subsidiaries" as such term is defined in Rule
405 under the Act, 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 financial position 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 (other than pursuant to
the exercise of existing options and other than as described in or referred
to in the Prospectus) or increase in the long-term debt (other than
pursuant to the Company's accounts receivable sale program) of the Company
or any of its Subsidiaries, any material revaluation of inventories, 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 own all real property and personal
property as set forth in the Prospectus other than as described in or
referred to in the Prospectus in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in the
-3-
<PAGE>
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use 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 described or referred to in the Prospectus or 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 validly existing as a
corporation in good standing under the laws 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 result in a material adverse
change to the financial position or results of operations of the Company
and its subsidiaries taken as a whole; and each Subsidiary 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, 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 result in a material adverse change to the financial
position or results of operations of the Company and its subsidiaries taken
as a whole, or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction;
(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; and all of the issued shares of capital stock of each
Subsidiary have been duly and validly authorized and issued, are fully paid
and (except, with respect to any Subsidiary incorporated in the State of
New York, as provided in Section 630 of the Business Corporations Law of
the State of New York) 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 except as otherwise set forth
in or contemplated by the Prospectus;
(viii) The compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the consummation
by the Company of the transactions to be performed by the Company herein
and therein contemplated will not conflict with or result in a breach or
violation of or constitute a default under, any of the existing terms or
provisions of, 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
-4-
<PAGE>
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 result in a
material adverse change to the financial position or 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
(viii) United States federal or state securities laws) or any existing
order, rule or regulation of any United States federal or state court or
governmental agency or body having jurisdiction over the Company or any of
its Subsidiaries or any of their properties except for such violations
(other than any relating to the Certificate of Incorporation or By-Laws of
the Company) that individually or in the aggregate would not result in a
material adverse change to the financial position or results of operations
of the Company and its subsidiaries taken as a whole; and no consent,
approval, authorization, order, registration or qualification of or with
any such United States federal or state court or governmental agency or
body is required to be obtained by the Company on the date hereof or at any
Time of Delivery for the sale of the Shares or for the sale of the
International Shares or the consummation by the Company of the transactions
to be performed by the Company contemplated by this Agreement and the
International Underwriting Agreement, except the registration under the Act
of the Shares and such consents, approvals, authorizations, registrations
or qualifications as may be required under state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters and the International Underwriters;
(ix) Neither the Company nor any of its Subsidiaries is in violation of
its Certificate of Incorporation or By-laws; and neither the Company nor
any of its Subsidiaries is 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 except for such violations and defaults as would
not result in a material adverse change to the financial position or
results of operations of the Company and its
-5-
<PAGE>
subsidiaries taken as a whole;
(x) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to describe the
terms of the Stock and under the caption "Certain United States Tax
Consequences to Non-U.S. Holders" in the International Prospectus, 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;
(xi) Other than as set forth or contemplated 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 to the Company and any of its
subsidiaries 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 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;
(xii) The Company and its subsidiaries own, or possess adequate rights to
use, all trademarks, service marks, trade names, copyrights and licenses
(including the names, "Saks Fifth Avenue", "SFA", "Off 5th", "S5A" and
"Folio") necessary to conduct their businesses currently and as proposed to
be conducted, and neither the Company nor 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 trademarks, service marks, tradenames, copyrights or licenses;
(xiii) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be (i) an "investment company" or (ii) an
entity "controlled" by an "investment company" required to be registered
under the Investment Company Act of 1940, as amended (the "Investment
Company Act") (for purposes of this paragraph (xiii), "investment company"
and "controlled" shall have the meanings ascribed to such terms in the
Investment Company Act);
(xiv) 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;
(xv) Coopers & Lybrand L.L.P., who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xvi) Each of the Company and its Subsidiaries (i) is in compliance with
any and all applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business and (iii) is in compliance with all terms and conditions of any
such permit, license or approval, except in the case of (i), (ii) or (iii)
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(xvii) Except for the Registration Rights Agreement, dated as of August
__, 1996, among the Company and certain stockholders of the Company party
thereto, there are no contracts, agreements, or understandings between the
Company and any person granting such person the right to require the
Company to include any securities of the Company in the Registration
Statement for sale by such person; and
-6-
<PAGE>
(xviii) 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.
(b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters that:
(i) All consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement,
the International Agreement, the Power of Attorney and the Custody
Agreement hereinafter referred to, and for the sale and delivery of the
Shares to be sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement, have been obtained; and such Selling
Stockholder has full right, power and authority to enter into this
Agreement, the International Underwriting Agreement, the Power of Attorney
and the Custody Agreement and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement;
(ii) The sale of the Shares to be sold by such Selling Stockholder
hereunder and under the International Underwriting Agreement and the
compliance by such Selling Stockholder with all of the provisions of this
Agreement, the International Underwriting Agreement, the Power of Attorney
and the Custody Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, 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 provisions of the Certificate of
Incorporation or By-laws of such Selling Stockholder if such Selling
Stockholder is a corporation, the Partnership Agreement of such Selling
Stockholder if such Selling Stockholder is a partnership 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, and immediately prior to each
Time of Delivery (as defined in Section 4 hereof) such Selling Stockholder
will have, good and valid title to the Shares to be sold by such Selling
Stockholder hereunder and under the International Underwriting Agreement,
free and clear of all liens, encumbrances, equities or claims except such
as may be imposed by the terms of this Agreement, the International
Underwriting Agreement, the Power of Attorney and the Custody Agreement;
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
-7-
<PAGE>
to sell or otherwise dispose of, except as provided hereunder or under the
International Underwriting Agreement, any 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 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) 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;
(vi) 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 written information furnished to the Company by such Selling
Stockholder expressly for use 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 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, such Selling Stockholder 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-8 (or other
applicable form or statement specified by Treasury Department regulations
in lieu thereof), whereby such Selling Stockholder certifies as to its non-
U.S. status;
(viii) Certificates in negotiable form representing all of the Shares
to be sold by such Selling Stockholder hereunder and under the
International Underwriting Agreement have been placed in custody under a
Custody Agreement, in the form heretofore furnished to you (the "Custody
Agreement"), duly executed and delivered by such Selling Stockholder to
ChaseMellon Shareholder Services LLC, as custodian (the "Custodian"), and
such Selling Stockholder has duly executed and delivered a Power of
Attorney, in the form heretofore furnished to you (the "Power of
Attorney"), appointing the persons indicated in Schedule II hereto, and
each of them, as such Selling Stockholder'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
such Selling Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in
-8-
<PAGE>
connection with the transactions contemplated by this Agreement, the
International Underwriting Agreement and the Custody Agreement; and
(ix) The Shares represented by the certificates held in custody for
such Selling Stockholder under the Custody Agreement are subject to the
interests of the Underwriters hereunder and the International Underwriters
under the International Underwriting Agreement; the arrangements made by
such Selling Stockholder for such custody, and the appointment by such
Selling Stockholder of the Attorneys-in-Fact by the Power of Attorney, are
to that extent irrevocable; the obligations of the Selling Stockholders
hereunder shall not be terminated by operation of law, whether by the death
or incapacity of any individual Selling Stockholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by
the occurrence of any other event; if any individual Selling Stockholder or
any such executor or trustee should die or become incapacitated, or if any
such estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other event should occur, before
the delivery of the Shares hereunder, certificates representing the Shares
shall be delivered by or on behalf of the Selling Stockholders in
accordance with the terms and conditions of this Agreement, of the
International Underwriting Agreement and of the Custody Agreements; and
actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney
shall be valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the Custodian,
the Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, 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 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 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 all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from each of
the Selling Stockholders, 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.
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<PAGE>
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 960,000 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares shall be made in proportion to the maximum number of
Optional Shares to be sold by each Selling Stockholder set forth in Schedule II
hereto. 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, 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 4 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. Upon the authorization by the Attorneys-in-Fact 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.
4. (a) Certificates representing the Shares to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized denominations
and registered in such names as Goldman, Sachs & Co. may request upon at least
forty-eight hours' prior notice to the Selling Stockholders, shall be delivered
by or on behalf of the Selling Stockholders to Goldman, Sachs & Co. for the
account of such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer of same day funds payable to the
order of the Custodian. 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 Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004
(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
September __, 1996 or such other time and date as Goldman, Sachs & Co. and the
Selling Stockholders may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York time, on the date specified by Goldman,
Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as Goldman, Sachs & Co. and the Selling Stockholders 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 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 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(l) hereof, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York
City time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be
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available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Company agrees 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 to transmit such Prospectus by
a means reasonably calculated to result in filing with the Commission by
such date), 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 prior to the last Time of Delivery
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 with the
Commission or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission and to furnish you
with copies of any such amendment or supplement; 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 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 reasonable 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 within the United States 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) 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 event 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
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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 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 90 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder and under the International Underwriting Agreement, and under the
underwriting agreement of even date herewith regarding the offering of __%
Convertible Subordinated Notes due 2006 by the Company, any 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
that represent the right to receive, Stock or any such substantially
similar securities (other than (i) in connection with the acquisition of or
merger with any other corporation or other entity or the acquisition of any
assets or properties thereof or (ii) pursuant to employee stock option,
stock purchase or other employee benefit plans existing on the date hereof,
provided that in the case of (i) above, prior to the issuance of such
securities, the Company obtains and delivers to the Underwriters executed
copies of an agreement from any such corporation or entity substantially to
the effort set forth in this Section 5(e) in form satisfactory to you),
without your prior written consent;
(f) 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
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or other) generally 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 pursuant to the Securities
Exchange Act of 1934; and (ii) such additional information, which
additional information shall be kept confidentially by you, 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); and
(h) 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.
6. The Company and each of the Selling Stockholders, jointly and
severally, covenant and agree with the several Underwriters that (a) the Company
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 Agreement, the Blue Sky Memorandum,
closing documents and any other documents that the Company may request 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 5(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;
(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; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to the performance by the Company of its obligations hereunder
which are not otherwise specifically provided for in this Section and (b) such
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) such Selling
Stockholder's pro rata share of the fees and expenses of the Attorneys-in-Fact
and the Custodian and (iii) all other costs, expenses and taxes incident to the
sale and delivery of the Shares to be sold by such Selling Stockholder to the
Underwriters hereunder which are not specifically provided for in this Section.
In connection with clause (b)(iii) of the preceding sentence, Goldman, Sachs &
Co. agrees to pay New York State stock transfer tax, and the Selling Stockholder
agrees to reimburse Goldman, Sachs & Co. for associated carrying costs if such
tax payment is not rebated on the day of payment
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<PAGE>
and for any portion of such tax payment not rebated. It is understood, however,
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 8 and 12 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.
7. 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 of 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:
(a) The Prospectus shall have been filed, or transmitted by a means
reasonably calculated to result in filing, 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 5(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) Sullivan & Cromwell, counsel for the Underwriters, shall have
furnished to you such opinion or opinions (a draft of each such opinion is
attached as Annex II(a) hereto), dated such Time of Delivery, with respect
to the matters covered in paragraphs (i), (ii), (vii), (xi) and (xiii) of
subsection (c) below 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) Gibson, Dunn & Crutcher LLP, special counsel for the Company,
shall have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(b) hereto), dated such Time of Delivery, 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 the state
of Delaware with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii)The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of
Delivery) have been duly
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authorized and validly issued and are fully paid and nonassessable;
and the Shares conform to the description of the Stock contained in
the Prospectus;
(iii)This Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(iv)The compliance by the Company with all of the provisions of
this Agreement and the International Underwriting Agreement and the
consummation by the Company of the transactions to be performed by the
Company herein and therein contemplated will not conflict with or
result in a breach or violation of, or constitute a default under, any
of the existing terms or provisions of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument filed as an
exhibit to the Registration Statement, 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 statute or any existing order,
rule or regulation (other than foreign and state securities laws, as
to which such counsel expresses no opinion and other than federal
securities laws, as to which such counsel expresses no opinion except
as otherwise set forth herein) known to such counsel of any United
States federal or state court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries;
(v)No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required to be obtained by the Company for the sale of the Shares
to the Underwriters and the International Underwriters or the
consummation by the Company of the transactions to be performed by the
Company contemplated by this Agreement and the International
Underwriting Agreement, except the registration under the Act of the
Shares, and such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities or
Blue Sky laws;
(vi)The Company is not, and after giving effect to the sale of
the Shares, will not be (i) an "investment company" or (ii) an entity
"controlled" by an "investment company" required to be registered
under the Investment Company Act (for purposes of this paragraph
(vi),"investment company" and "controlled" shall have the meanings
ascribed to such terms in the Investment Company Act); and
In addition, such counsel shall state that such counsel has
participated in the preparation of the Registration Statement and the Prospectus
and in conferences with officers and other representatives of the Company,
counsel for the Company, representatives of the independent auditors of the
Company and your representatives at which the contents of the Registration
Statement and Prospectus and related matters were discussed. Such counsel may
also state that because the purpose of their professional engagement was not to
establish or confirm factual matters and because the scope of their examination
of the affairs of the Company did not permit them to verify the accuracy,
completeness or fairness of the statements set forth in the Registration
Statement or Prospectus, they are not passing upon
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<PAGE>
and do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or Prospectus, except
to the extent set forth in the last sentence of this paragraph. Such counsel
also shall state that, on the basis of the foregoing, except for the financial
statements and schedules and other financial data included therein, as to which
such counsel need express no opinion or belief, (a) such counsel is of the
opinion that the Registration Statement at the time it became effective, and the
Prospectus as of the date thereof and as of the date of such opinion, appeared
on their face to be appropriately responsive in all material respects to the
relevant requirements of the Securities Act and the General Rules and
Regulations promulgated thereunder and (b) no facts have come to such counsel's
attention that lead such counsel to believe that the Registration Statement at
the time it became effective contained an untrue statement of a material fact or
omits or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or the Prospectus as of
its date and as of the date of such opinion contained or contains an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such counsel also
shall state that, insofar as the statements contained in the Registration
Statement and the Prospectus under the caption "Description of Capital Stock"
constitute a summary of the documents and legal matters referred to therein,
such counsel is of the opinion that such statements fairly present the
information called for with respect to such documents and legal matters by the
Securities Act and the applicable rules and regulations of the Commission
thereunder relating to registration statements on Form S-1 and prospectuses,
and, insofar as the statements contained in the Prospectus under the caption
"Certain United States Tax Consequences to Non-U.S. Holders" purport to describe
the legal matters referred to therein, such counsel is of the opinion that such
description of legal matters is accurate in all material respects.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the States of New York and
California, the General Corporation Law of the State of Delaware and the federal
law of the United States.
(d) Counsel for the Selling Stockholders listed in Schedule II hereto
shall have furnished to you their written opinion (a draft of each such
opinion is attached as Annex II(c) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute
valid and binding agreements of such Selling Stockholder in accordance
with their terms;
(ii) This Agreement and the International Underwriting Agreement
have been duly executed and delivered by or on behalf of such Selling
Stockholder; and the sale of the Shares to be sold by such Selling
Stockholder hereunder and thereunder and the compliance by such
Selling Stockholder with all of the provisions of this Agreement and
the International Underwriting Agreement, the Power of Attorney and
the Custody Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in
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a breach or violation of any terms or provisions of, or constitute a
default under, any statute, indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which such Selling Stockholder is a party or by which such Selling
Stockholder is bound, or to which any of the property or assets of
such Selling Stockholder is subject, nor will such action result in
any violation of the provisions of the Certificate of Incorporation or
By-laws of such Selling Stockholder if such Selling Stockholder is a
corporation, the Partnership Agreement of such Selling Stockholder if
such Selling stockholder is a partnership or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder;
(iii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement and the International
Underwriting Agreement in connection with the Shares to be sold by
such Selling Stockholder hereunder or thereunder, except [name any
such consent, approval, authorization or order] which has been duly
obtained and is in full force and effect, such as have been obtained
under the Act and such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of such
Shares by the Underwriters or the International Underwriters;
(iv) Immediately prior to each Time of Delivery such Selling
Stockholder had good and valid title to the Shares to be sold at such
Time of Delivery by such Selling Stockholder under this Agreement and
the International Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and authority
to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder and thereunder; and
(v) Good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to each
of the several Underwriters or International Underwriters, as the case
may be.
In rendering the opinion in subparagraph (iv) such counsel may rely
upon a certificate of such Selling Stockholder in respect of matters of
fact as to ownership of, and liens, encumbrances, equities or claims on the
Shares sold by such Selling Stockholder, provided that such counsel shall
state that they believe that both you and they are justified in relying
upon such certificate;
(e) Joan F. Krey, general counsel of the Company, shall have
furnished to you her written opinion (a draft of such opinion is attached
as Annex II(d) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i)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 jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of failure to be so
qualified in any such jurisdiction (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company or State officials);
(ii)Each Subsidiary of the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation 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, or is subject to no material liability or disability
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by reason of the failure to be so qualified in any such jurisdiction;
and all of the issued shares of capital stock of each such Subsidiary
have been duly authorized and validly issued, are fully paid and
(except, with respect to any Subsidiary incorporated in the State of
New York, as provided in Section 630 of the Business Corporations Law
of the State of New York) 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 and
except as otherwise described or referred to in the Prospectus (such
counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect to matters of
fact upon certificates of officers of the Company or its subsidiaries
and state officials, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such
opinions and certificates);
(iii)To such counsel's knowledge and 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 to the
Company and any of its subsidiaries 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 such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(iv)The compliance by the Company with all of the provisions of
this Agreement and the International Underwriting Agreement and the
consummation by the Company of the transactions to be performed by the
Company herein and therein contemplated will not conflict with or
result in a breach or violation of, or constitute a default under, any
of the existing terms or provisions of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument filed as an
exhibit to the Registration Statement, 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 statute or any existing order,
rule or regulation (other than foreign and state securities laws, as
to which such counsel expresses no opinion and other than federal
securities laws, as to
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which such counsel expresses no opinion except as otherwise set forth
herein) known to such counsel of any United States federal or state
court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries; and
(v)Neither the Company nor any of its Subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in any material respect 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.
(f) 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, Coopers &
Lybrand shall 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
Annex I(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 Annex I(b)
hereto);
(g)(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 covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, which loss or interference is material to the financial position
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
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock (other
than pursuant to the exercise of existing options and other than as
described in or referred to in the Prospectus) or increase in the long-term
debt (other than pursuant to the accounts receivable sale program and other
than the issuance of the __% Convertible Subordinated Notes due 2006
referred to in the Prospectus) of the Company or any of its Subsidiaries,
any material revaluation of inventories, or any change, or any development
involving a prospective 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, 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;
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(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) 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;
(i) The Shares to be sold by the Selling Stockholders at such Time of
Delivery shall have been duly listed, subject to notice of issuance, on the
Exchange;
(j) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from Investcorp S.A. ("Investcorp")
covering all shares of Common Stock beneficially owned by Investcorp that
were not purchased in the Company's initial public offering, substantially
to the effect set forth in Subsection 5(e) hereof and in form and substance
satisfactory to you;
(k) The Company shall have complied with the provisions of Section
5(c) hereto with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(l) 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 of the Selling Stockholders, respectively,
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders, respectively,
herein at and as of such Time of Delivery, as to the performance by the
Company and the Selling Stockholders of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsections (a) and (g) of this Section and as to such
other matters as you may reasonably request.
8. (a) The Company 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 shall not be liable in any
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<PAGE>
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 Goldman,
Sachs & Co. expressly for use therein.
(b) Each of the Selling Stockholders 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 written information furnished to the Company by such
Selling Stockholder expressly for use 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 Goldman, Sachs & Co. expressly for use therein.
(c) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company 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 Goldman, Sachs & Co. expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such action or claim as such expenses are incurred.
-21-
<PAGE>
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party (which consent shall not be
unreasonably withheld), 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. The indemnifying party shall
not be liable for any settlement of an action or claim for monetary damages
which an indemnified party may effect without the consent of the
indemnifying party which consent will not be unreasonably withheld. 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.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) 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
(d) 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
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<PAGE>
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 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 (e) 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 (e). 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 (e) 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 (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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 (e) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section 8 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 8 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
and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act.
9. (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 Selling Stockholders
shall be entitled to a further period of thirty-six hours within which to
-23-
<PAGE>
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 Selling Stockholders that you have so arranged for
the purchase of such Shares, or the Selling Stockholders notify you that
they have so arranged for the purchase of such Shares, you or the Selling
Stockholders 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
Selling Stockholders 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 the Shares to be purchased at
such Time of Delivery, then the Selling Stockholders 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
Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Selling Stockholders 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 the Selling Stockholders to sell the
Optional Shares) shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Company or the Selling
Stockholders, except for the expenses to be borne by the Company and the
Selling Stockholders and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for
its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth 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, or any officer
-24-
<PAGE>
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.
11. If this Agreement shall be terminated pursuant to Section 9 hereof or
as a result of the failure of a condition set forth in Section 7(i) hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the
Selling Stockholders as provided herein, each of the Selling Stockholders pro
rata (based on the number of Shares to be sold by such Selling Stockholder
hereunder) 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
the Selling Stockholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 6 and 8 hereof.
12. 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 Goldman, Sachs & Co. on behalf of you as the
representatives.
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 Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule II hereto; 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 8(d) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company or the Selling Stockholders by you upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
13. 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 8 and 11 hereof, the officers and directors of the
Company, 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.
14. 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.
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<PAGE>
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. 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.
If the foregoing is in accordance with your understanding, please sign and
return to eight 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 between 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.
-26-
<PAGE>
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Saks Holdings, Inc.
By:
------------------------------------------
Name:
Title:
SFA Saudi Holdings Limited
SFA Saudi Investments Limited
Fifth Avenue Equity Limited
Fifth Avenue Holdings Limited
Fifth Avenue Investments Limited
Saks Fifth Avenue Holdings II Limited
Saks Fifth Avenue Investments II Limited
Saks Fifth Avenue Equity Limited
Real Clothes Equity Limited
Real Clothes Holdings Limited
Real Clothes Investments Limited
SFA Equity Limited
SFA Holdings Limited
SFA Investments Limited
SFA Label Investments Limited
Works Holdings Limited
Macro International Ltd.
Government of Kuwait
Trustees of the Estate of Bernice
Pauahi Bishop
By:
------------------------------------------
Name:
Title:
As Attorney-in-Fact on behalf of each of the
Selling Stockholders named in Schedule II to
this Agreement.
-27-
<PAGE>
Accepted as of the date hereof:
Goldman, Sachs & Co.
CS First Boston Corporation
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
By:
-----------------------------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
-28-
<PAGE>
SCHEDULE I
<TABLE><CAPTION>
Number of Optional
Total Number of Shares to be Purchased
Firm Shares to if Maximum Option
Underwriter be Purchased Exercised
----------- --------------- ----------------------
<S> <C> <C>
Goldman, Sachs & Co. . . . . . . . . .
CS First Boston Corporation . . . . . .
Morgan Stanley & Co. Incorporated . . .
Salomon Brothers Inc . . . . . . . . .
---------------- ----------------
Total . . . . . . . . . . . . . . 6,400,000 960,000
=========== ==========
</TABLE>
-29-
<PAGE>
SCHEDULE II
<TABLE><CAPTION>
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
--------------- ------------------
<S> <C> <C>
The Selling Stockholders:
SFA Saudi Holdings Limited(a) . . . . 731,694 109,754
SFA Saudi Investments Limited(a) . . 90,434 13,565
Fifth Avenue Equity Limited(a) . . . 411,786 61,768
Fifth Avenue Holdings Limited(a) . . 298,562 44,784
Fifth Avenue Investments Limited(a) . 319,115 47,867
Saks Fifth Avenue Holdings II
Limited(a) . . . . . . . . . . . . . 335,188 50,278
Saks Fifth Avenue Investments II
Limited(a) . . . . . . . . . . . . . 335,188 50,278
Saks Fifth Avenue Equity Limited(a) . 367,932 55,190
Real Clothes Equity Limited(a) . . . 339,669 50,950
Real Clothes Holdings Limited(a) . . 293,514 44,027
Real Clothes Investments Limited(a) . 298,562 44,784
SFA Equity Limited(a) . . . . . . . . 257,456 38,618
SFA Holdings Limited(a) . . . . . . . 298,562 44,784
SFA Investments Limited(a) . . . . . 271,843 40,777
SFA Label Investments Limited(a) . . 345,294 51,794
Works Holdings Limited(a) . . . . . . 345,086 51,763
Macro International Ltd.(a) . . . . . 288,466 43,270
Government of Kuwait(a) . . . . . . . 360,582 54,087
Trustees of the Estate of Bernice
Pauahi Bishop(a) . . . . . . . . . . 411,064 61,660
------------- ------------
Total . . . . . . . . . . . . . . . .
6,400,000 960,000
============ ===========
</TABLE>
(a) This Selling Stockholder is represented by [__________________] and
has appointed __________ and __________ Jon P. Hedley and Charles J. Philippin,
and each of them, as the Attorneys-in-Fact for such Selling Stockholder.
-30-
<PAGE>
SCHEDULE III
SIGNIFICANT SUBSIDIARIES
------------------------
1. Saks & Company
2. Win Realty Holdings II, Inc.
3. Calwin Realty II, Inc.
4. SFA Folio Collections, Inc.
5. Fifth Win, Inc.
6. SFA Finance Company
-31-
<PAGE>
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
Pursuant to Section 7(f) 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 copies of which have been
separately furnished to the Representatives 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;
(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 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
<PAGE>
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 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
-2-
<PAGE>
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.
-3-
<PAGE>
ANNEX I(a)
ANNEX I(a) COMFORT LETTER OF COOPERS & LYBRAND L.L.P.
<PAGE>
ANNEX I(b)
FORM OF ANNEX I(b) BRING DOWN COMFORT LETTER OF COOPERS & LYBRAND L.L.P.
<PAGE>
ANNEX II(a)
FORM OF ANNEX II(a) OPINION OF SULLIVAN & CROMWELL
<PAGE>
ANNEX II(b)
FORM OF ANNEX II(b) OPINION OF GIBSON, DUNN & CRUTCHER LLP
as counsel to the Company
<PAGE>
ANNEX II(c)
FORM OF ANNEX II(c) OPINION OF [__________________________]
as counsel to the Selling Stockholders
<PAGE>
ANNEX II(d)
FORM OF ANNEX II(d) OPINION OF JOAN F. KREY,
GENERAL COUNSEL OF SAKS HOLDINGS, INC.
EXHIBIT 1.02
Draft of September 14, 1996
Saks Holdings, Inc.
Common Stock
(par value $0.01 per Share)
Underwriting Agreement
(International Version)
September , 1996
Goldman Sachs International,
CS First Boston Limited,
Morgan Stanley & Co. International Limited,
Salomon Brothers International Limited,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman Sachs International,
Peterborough Court,
133 Fleet Street,
London EC4A 2BB, England.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders') of Saks Holdings, Inc., a Delaware corporation (the "Company"),
propose, 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
1,600,000 shares (the "Firm Shares") and, at the election of the Underwriters,
up to 240,000 additional shares (the "Optional Shares") of Common Stock, par
value $0.01 per share (the "Stock") of the Company (the Firm Shares and the
Optional Shares which the Underwriters elect to purchase pursuant to Section 2
hereof being collectively called the "Shares").
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement, a copy of
which is attached hereto (the "U.S. Underwriting Agreement"), providing for the
offering by the Selling Stockholders of up to a total of 7,360,000 shares of
Stock (the "U.S. Shares") including the overallotment option thereunder through
arrangements with certain underwriters in the United States (the
"U.S. Underwriters"), for whom Goldman, Sachs & Co., CS First Boston
Corporation, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc are
acting as representatives. Anything herein and therein to the contrary
notwithstanding, the respective closings under this Agreement and the
U.S. Underwriting Agreement are hereby expressly made conditional on one
another. The Underwriters hereunder and the U.S. 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
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shares of Stock between the two syndicates and for consultation by the Lead
Managers hereunder with Goldman, Sachs & Co. prior to exercising the rights of
the Underwriters under Section 7 hereof. 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
U.S. Shares. The latter form of prospectus will be identical to the former
except for the front cover page, back cover page, and the text under the caption
"Underwriting" and for the elimination of a section captioned "Certain United
States Tax Consequences to Non-U.S. Holders". Except as used in Sections 2, 3,
4, 9 and 11 herein, and except as the context may otherwise require, references
hereinafter to the Shares shall include all of the shares of Stock which may be
sold pursuant to either this Agreement or the U.S. Underwriting Agreement, and
references herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both of the U.S. and the
international versions thereof.
In addition, this Agreement incorporates by reference certain provisions
from the U.S. Underwriting Agreement (including the related definitions of
terms, which are also used elsewhere herein) and, for purposes of applying the
same, references (whether in these precise words or their equivalent) in the
incorporated provisions to the "Underwriters" shall be to the Underwriters
hereunder, to the "Shares" shall be to the Shares hereunder as just defined, to
"this Agreement" (meaning therein the U.S. Underwriting Agreement) shall be to
this Agreement (except where this Agreement is already referred to or as the
context may otherwise require) and to the representatives of the Underwriters or
to Goldman, Sachs & Co. shall be to the addressees of this Agreement and to
Goldman Sachs International ("GSI"), and, in general, all such provisions and
defined terms shall be applied mutatis mutandis as if the incorporated
provisions were set forth in full herein having regard to their context in this
Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Stockholders hereby make
to the Underwriters the same respective representations, warranties and
agreements as are set forth in Section 1 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a) each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, 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 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 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 all of the Selling Stockholders hereunder and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, each of the Selling Stockholders
agrees, severally and not jointly, to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from each of
the Selling Stockholders, at the purchase price per share set forth in clause
(a) of this Section 2, that
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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.
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 240,000 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares shall be made in proportion to the maximum number of
Optional Shares to be sold by each of the Selling Stockholders set forth in
Schedule II hereto. 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, 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 4 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. Upon the authorization by the Attorneys-in-Fact 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 and in the forms of
Agreement among Underwriters (International Version) and Selling Agreements,
which have been previously submitted to the Company by you. Each Underwriter
hereby makes to and with the Company and the Selling Stockholders the
representations and agreements of such Underwriter as a member of the selling
group contained in Sections 3(d) and 3(e) of the form of Selling Agreements.
4. (a) Certificates representing the Shares to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized denominations
and registered in such names as GSI may request upon at least forty-eight hours'
prior notice to the Selling Stockholders shall be delivered by or on behalf of
the Selling Stockholders to GSI for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of same day funds payable to the order of the Custodian. 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 GSI, 85 Broad
Street, New York, New York 10004 (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 May 28, 1996 or such other time and date as GSI and
the Selling Stockholders 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 GSI in
the written notice given by GSI of the Underwriters' election to purchase such
Optional Shares, or such other time and date as GSI and the Selling Stockholders
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 Optional Shares, if not the First Time of
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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 7 of the U.S. Underwriting Agreement,
including the cross receipt for the Shares and any additional documents
requested by the Underwriters pursuant to Section 7(l) of the U.S. Underwriting
Agreement hereof, will be delivered at the offices of Sullivan & Cromwell,
125 Broad Street, New York, New York 10004 (the "Closing Location"), and the
Shares will be delivered at the Designated Office, all at such Time of Delivery.
A meeting will be held at the Closing Location at 2:00 p.m., New York City time,
on the New York Business Day next preceding such 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 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company hereby makes to the Underwriters the same agreements as
are set forth in Section 5 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
6. The Company, each of the Selling Stockholders, and the Underwriters
hereby agree with respect to certain expenses on the same terms as are set forth
in Section 6 of the U.S. Underwriting Agreement, which Section is incorporated
herein by this reference.
7. Subject to the provisions of the Agreement between Syndicates, the
obligations of the Underwriters hereunder shall be subject, in their discretion,
at each Time of Delivery, 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
obligations hereunder theretofore to be performed, and additional conditions
identical to those set forth in Section 7 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
8. (a) The Company 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 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
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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 GSI expressly
for use therein.
(b) Each of the Selling Stockholders 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 looses, 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 such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use 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 GSI expressly
for use therein.
(c) 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 Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through GSI 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 Stockholder in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party (which consent shall not be
unreasonably withheld), 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
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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. The indemnifying party shall not be liable for any settlement of
an action or claim for monetary damages which an indemnified party may effect
without the consent of the indemnifying party which consent will not be
unreasonably withheld. 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.
(e) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) 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 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 (d) 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 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 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 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 relating to such Shares. 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
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 and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (e)
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
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account of the equitable considerations referred to above in this subsection
(e). 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 (e) 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 (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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 (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section 8 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 8 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 and to each person, if
any, who controls the Company or any Selling Stockholder within the meaning of
the Act.
9. (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 Selling Stockholders 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 Selling Stockholders
that you have so arranged for the purchase of such Shares, or the Selling
Stockholders notify you that they has so arranged for the purchase of such
Shares, you or the Selling Stockholders 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 Selling
Stockholders 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 the Shares to be purchased at such Time of Delivery, then the
Selling Stockholders 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
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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 Selling
Stockholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds one-eleventh of the aggregate number of
all the Shares to be purchased at such Time of Delivery, or if the Selling
Stockholders 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 obligation of the Underwriters to purchase and of the
Selling Stockholders to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholders, except for the expenses to be borne by the Company
and the Selling Stockholders and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth 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, or any officer
or director or controlling person of the Company or any Selling Stockholder, and
shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof or
as a result of the failure of a condition set forth in Section 7(g) of the U.S.
Underwriting Agreement, neither the Company nor the Selling Stockholders shall
not then be under any liability to any Underwriter except as provided in Section
6 and Section 8 hereof, but, if for any other reason any Shares are not
delivered by or on behalf of the Company and the Selling Stockholders as
provided herein, each of the Selling Stockholders pro rata (based on the number
of Shares to be sold by such Selling Stockholder hereunder) will reimburse the
Underwriters through GSI for all out-of-pocket expenses approved in writing by
GSI, 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 the Selling Stockholders shall then
be under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. 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 GSI on behalf of you as the representatives of the
Underwriters; and in all dealings with any Selling Stockholder
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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 the Underwriters in care of GSI, Peterborough Court,
133 Fleet Street, London EC4A 2BB, England, Attention: Equity Capital Markets,
Telex No. 94012165, facsimile transmission No. (071) 774-1550; if to any Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to counsel for such Selling Stockholder at its address set forth in Schedule II
hereto; and if to the Company shall be delivered or sent by registered 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 8(d) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Stockholders by GSI upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. 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 8 and 10 hereof, the officers and directors of the
Company 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.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, United States of America.
16. 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.
If the foregoing is in accordance with your understanding, please sign and
return to eight 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 (International Version), the
form of which shall be furnished 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.
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Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Saks Holdings, Inc.
By:
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Name:
Title:
SFA Saudi Holdings Limited
SFA Saudi Investments Limited
Fifth Avenue Equity Limited
Fifth Avenue Holdings Limited
Fifth Avenue Investments Limited
Saks Fifth Avenue Holdings II Limited
Saks Fifth Avenue Investments II Limited
Saks Fifth Avenue Equity Limited
Real Clothes Equity Limited
Real Clothes Holdings Limited
Real Clothes Investments Limited
SFA Equity Limited
SFA Holdings Limited
SFA Investments Limited
SFA Label Investments Limited
Works Holdings Limited
Macro International Ltd.
Government of Kuwait
Trustees of the Estate of Bernice
Pauahi Bishop
By:
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Name:
Title:
As Attorney-in-Fact on behalf of each of the
Selling Stockholders named in Schedule II to
this Agreement.
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Accepted as of the date hereof:
Goldman Sachs International
CS First Boston Limited
Morgan Stanley & Co. International Limited
Salomon Brothers International Limited
By: Goldman Sachs International
By:
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(Attorney-in-fact)
On behalf of each of the Underwriters
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SCHEDULE I
<TABLE><CAPTION>
Number of Optional
Total Number of Shares to be Purchased
Firm Shares if Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ----------------------
<S> <C> <C>
Goldman Sachs International . . . .
CS First Boston Limited . . . . . .
Morgan Stanley & Co. International
Limited . . . . . . . . . . . . . .
Salomon Brothers International
Limited . . . . . . . . . . . . .
--------------- -----------------
Total . . . . . . . . . . . . 1,600,000 240,000
========== ===========
</TABLE>
-12-
<PAGE>
SCHEDULE II
<TABLE><CAPTION>
Number of Optional
Shares to be
Total Number of Sold if
Firm Shares Maximum Option
to be Sold Exercised
--------------- ------------------
<S> <C> <C>
The Selling Stockholders:
SFA Saudi Holdings Limited(a) . . . . 182,924 27,439
SFA Saudi Investments Limited(a) . . 22,609 3,391
Fifth Avenue Equity Limited(a) . . . 102,946 15,442
Fifth Avenue Holdings Limited(a) . . 74,641 11,196
Fifth Avenue Investments Limited(a) . 79,779 11,967
Saks Fifth Avenue Holdings II 83,797 12,570
Limited(a) . . . . . . . . . . . . .
Saks Fifth Avenue Investments II 83,797 12,570
Limited(a) . . . . . . . . . . . . .
Saks Fifth Avenue Equity Limited(a) . 91,983 13,797
Real Clothes Equity Limited(a) . . . 84,917 12,738
Real Clothes Holdings Limited(a) . . 73,379 11,007
Real Clothes Investments Limited(a) . 74,641 11,196
SFA Equity Limited(a) . . . . . . . . 64,364 9,655
SFA Holdings Limited(a) . . . . . . . 74,641 11,196
SFA Investments Limited(a) . . . . . 67,961 10,194
SFA Label Investments Limited(a) . . 86,323 12,949
Works Holdings Limited(a) . . . . . . 86,272 12,941
Macro International Ltd.(a) . . . . . 72,117 10,817
Government of Kuwait(a) . . . . . . . 90,146 13,522
Trustees of the Estate of Bernice 102,766 15,415
---------- ------------
Pauahi Bishop(a) . . . . . . . . . .
Total . . . . . . . . . . . . . . . . 1,600,000 240,000
========== ===========
</TABLE>
(a) This Selling Stockholder is represented by [_________________________]
and has appointed __________ and __________ Jon P. Hedley and Charles J.
Philippin, and each of them, as the Attorneys-in-Fact for such Selling
Stockholder.
-13-
Exhibit 4.10
SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental
Indenture") is dated as of September , 1996 between SAKS & COMPANY, a New
York corporation (the "Company"), and AIBC SERVICES, N.V., a Netherlands
Antilles corporation, as trustee (the "Trustee") under the Indenture (as
hereinafter defined).
R E C I T A L S
- - - - - - - -
A. The Company has heretofore executed and delivered to the
Trustee a certain Indenture dated as of July 1, 1993, providing for the issuance
of $50,000,000 principal amount of its 9% Subordinated Notes due May 31, 2001
(the "Notes"), which Indenture has been amended by the First Supplemental
Indenture thereto dated as of April 22, 1996 (as so amended, the "Indenture").
All terms used in this Second Supplemental Indenture which are defined in the
Indenture shall have the same meanings assigned to them in the Indenture.
B. Pursuant to Section 8.02 of the Indenture, a supplemental
indenture to amend the Indenture may be entered into by the Company and the
Trustee with the consent of each of the Holders of the Outstanding Notes.
C. All things necessary to make this Second Supplemental
Indenture when executed by the parties hereto a valid and binding amendment of
and supplement to the Indenture have been done and performed.
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, for and in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby mutually covenant and agree as
follows:
SECTION 1. Amendment to Indenture. The Indenture shall be
----------------------
amended as follows:
(a) The First Recital shall be amended by deleting therefrom the
date "May 31, 2001" and substituting therefor the date "December 29, 1997".
(b) Section 1.01 shall be amended by inserting the following new
definition in its appropriate alphabetic location:
"SINKING FUND PAYMENT DATE MEANS A SINGLE BUSINESS DAY
-------------------------
AFTER AUGUST 31, 1996 AND ON OR PRIOR TO SEPTEMBER 16, 1996 THAT IS
SPECIFIED IN A WRITTEN NOTICE FROM THE COMPANY TO THE TRUSTEE;
PROVIDED THAT IF THE COMPANY DOES NOT PROVIDE SUCH NOTICE TO THE
--------
TRUSTEE ON OR PRIOR TO SEPTEMBER 15, 1996, SUCH DATE SHALL BE
SEPTEMBER 16, 1996."
(c) Section 2.02 shall be amended by deleting therefrom the date
"May 31, 2001" and substituting therefor the date "December 29, 1997".
(d) Section 2.03 shall be amended by deleting from the first
paragraph thereof the date "May 31, 2001" and substituting therefor the date
"December 29, 1997".
- ----------------------
[Footnote continued from previous page]
<PAGE>
(e) Section 10.04 shall be amended by deleting clause (a)
thereof in its entirety and substituting the following in its place:
"(a) (i) The particular Notes to be redeemed pursuant to
Section 10.01, if less than all the Outstanding Notes are to be
redeemed pursuant thereto, shall be selected by the Company not more
than 60 days nor less than 30 days prior to the Redemption Date, from
the Outstanding Notes not previously called for redemption and,
subject to Section 10.04(c) hereof, shall be redeemed pro rata among
the Holders in the proportion that the aggregate amount of Notes held
by a Holder bears to the aggregate amount of Notes Outstanding,
provided Notes shall be selected for redemption in denomination of
$1,000 or integral multiples thereof.
(ii) The particular Notes to be redeemed pursuant to
Section 10.09 shall be selected by the Company from the Outstanding
Notes not previously called for redemption and, subject to
Section 10.04(c) hereof, shall be redeemed pro rata among the Holders
in the proportion that the aggregate amount of Notes held by a Holder
bears to the aggregate amount of Notes Outstanding, provided Notes
shall be selected for redemption in denomination of $1,000 or integral
multiples thereof."
(f) A new Section 10.09 shall be inserted immediately following
Section 10.08:
"SECTION 10.09. Mandatory Redemption.
--------------------
If any of the Notes remain outstanding on such date, the
Company shall redeem on the Sinking Fund Payment Date Notes having an
aggregate principal amount equal to 70% of the aggregate principal
amount of Notes outstanding on the Sinking Fund Payment Date, at 100%
of the principal amount thereof, together with all accrued interest to
such Sinking Fund Payment Date."
SECTION 2. Amendment to Exhibit A. Exhibit A (9%
----------------------
Subordinated Note Due May 31, 2001) shall be amended as follows:
(a) The title of the Note shall be amended by deleting therefrom
the date "May 31, 2001" and substituting therefor the date "December 29, 1997".
(b) The last paragraph on the first page of the Note shall be
amended by deleting therefrom the date "May 31, 2001" and substituting therefor
the date "December 29, 1997" in the first sentence thereof.
(c) The first paragraph on the Reverse of Note shall be amended
by deleting therefrom the date "May 31, 2001" and substituting therefor the date
"December 29, 1997".
(d) A new paragraph shall be inserted on the Reverse of Note
immediately following the Optional Redemption Price chart:
"SUBJECT TO THE TERMS OF ARTICLES TEN AND ELEVEN OF THE
INDENTURE, 70% OF THE AGGREGATE PRINCIPAL AMOUNT OF THE NOTES THEN
OUTSTANDING ARE
<PAGE>
REQUIRED TO BE REDEEMED BY THE COMPANY, AS PROVIDED IN THE INDENTURE,
ON A DAY AFTER AUGUST 31, 1996 AND ON OR PRIOR TO SEPTEMBER 16, 1996
THAT IS SPECIFIED BY THE COMPANY TO THE TRUSTEE, AT A PRICE EQUAL TO
100% OF THE PRINCIPAL AMOUNT REDEEMED, PLUS ACCRUED INTEREST THEREON
TO THE DATE OF SUCH REDEMPTION ON THE AMOUNT REDEEMED."
SECTION 3. Severability. In case any provision in this
------------
Second Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 4. No Third Party Beneficiaries. Nothing in this
----------------------------
Second Supplemental Indenture, express or implied, shall give to any Person
other than the parties hereto and their successors under the Indenture, the
Senior Lenders and the Holders of the Notes, any benefit or any legal or
equitable right, remedy or claim under the Indenture.
SECTION 5. Effect of Second Supplemental Indenture. This
---------------------------------------
Second Supplemental Indenture supplements the Indenture and shall be a part and
subject to all the terms thereof. Except as supplemented hereby, the Indenture
shall continue in full force and effect.
SECTION 6. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE
-------------
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 7. Counterparts. This Second Supplemental Indenture
------------
may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed and their respective corporate seals,
if any, to be hereunto affixed and attested, all as of the day and year first
above written.
SAKS & COMPANY
By:
-------------------------------
Name:
Title:
Attest:
By:
-------------------------
Name:
Title:
AIBC SERVICES N.V.
By: AMACO (Curacao) N.V.
By:
-----------------------------
Name:
Title:
<PAGE>
ACT OF HOLDER
The foregoing Second Supplemental Indenture is hereby consented and
agreed to as of the date first above written by Act of the Holder of each
Outstanding Note in accordance with Section 8.02 of the Indenture. Pursuant to
Section 1.06 of the Indenture, the Holder hereby irrevocably waives any notice
from the Company that may be required under Section 10.05 with respect to the
Sinking Fund Payment Date.
TOCADE S.A.
By:
-----------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
Exhibit 4.11
===============================================================================
REGISTRATION RIGHTS AGREEMENT
among
SAKS HOLDINGS, INC.
a Delaware corporation
and
the SHAREHOLDERS
listed on the signature pages hereof
---------------
Dated as of August 16, 1996
===============================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Incidental Registration . . . . . . . . . . . . . . . . . . . . . 3
Section 3. Limitations on Incidental Registration . . . . . . . . . . . . . 4
Section 4. Registration on Request . . . . . . . . . . . . . . . . . . . . . 5
Section 5. Underwritten Offerings . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Registration Procedures . . . . . . . . . . . . . . . . . . . . . 7
Section 7. Expenses of Registration . . . . . . . . . . . . . . . . . . . . 7
Section 8. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 9. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Exhibit A Sample IPO Lock-Up Agreement
Exhibit B Schedule of Registrable Stock
<PAGE>
1
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of August
16, 1996, among SAKS HOLDINGS, INC., a Delaware corporation (the "Company"), and
the entities listed on the signature pages of this Agreement as the
"SHAREHOLDERS" (the "Shareholders").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, in connection with the Company's initial public offering of
its Common Stock on May 21, 1996 (the "IPO"), the Shareholders agreed with the
representatives of the underwriters, pursuant to certain lock-up agreements (the
"IPO Lock-Up Agreements"), for the benefit of the Company, not to offer, sell,
transfer or otherwise dispose of any shares of Common Stock for a period of 180
days after the date of the Initial Public Offering without the prior written
consent of the representatives of the underwriters (the "IPO Lock-Up Period");
WHEREAS, upon expiration of the IPO Lock-Up Period, the 44,785,365
shares of Common Stock held by the Shareholders are eligible for sale in the
public market in compliance with Rule 144 or Regulation S, each promulgated
under the Securities Act of 1933, as amended (the "Act");W
WHEREAS, the Company believes that unorganized sales of shares of
Common Stock by the Shareholders in the public market could have an adverse
effect on prevailing market prices for the Common Stock and could adversely
impact the Company's ability to participate in the capital markets;
WHEREAS, in order to provide for the orderly distribution of the
shares of Common Stock held by the Shareholders, the Company has agreed to grant
registration rights to the Shareholders with respect to the shares of Common
Stock as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions.
-----------
(a) As used in this Agreement the following terms shall have the
following meanings:
"Act": as defined in the preamble.
---
"Commission": the Securities and Exchange Commission or any
----------
other federal agency at the time administering the Act.
<PAGE>
2
"Common Stock": the common stock, $0.01 par value, of the
------------
Company.
"Company": as defined in the preamble.
-------
"Effective Date": August 16, 1996.
--------------
"Exchange Act": the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations of the Commission thereunder.
"GAAP": generally accepted accounting principles in the United
----
States of America in effect from time to time.
"Holder": a Shareholder or a Permitted Transferee.
------
"Initiating Shareholder": means Investcorp S.A., so long as such
----------------------
entity or one or more of its affiliates is holding Registrable Stock outstanding
at the time and initiating a request for registration pursuant to Section 4(a).
"IPO": as defined in the preamble.
---
"IPO Lock-Up Agreements": as defined in the preamble and a copy
----------------------
of which is attached hereto as Exhibit A.
"IPO Lock-Up Period": as defined in the preamble.
------------------
"Permitted Transfer": any transfer of the Common Stock that is
------------------
permitted under the terms of the IPO Lock-Up Agreements.
"Permitted Transferee": any transferee that receives Common
--------------------
Stock in a transfer of the Common Stock which is permitted under the terms of
the IPO Lock-Up Agreements, and who agrees in writing to become bound by the
terms of this Agreement.
"Person": an individual, partnership, joint venture,
------
corporation, trust, unincorporated organization or a government or any
department or agency thereof.
"Piggyback Notice": as defined in Section 2.
----------------
"Prospective Seller": with respect to any registration, a Holder
------------------
that proposes to include shares of Registrable Stock in such registration.
"register," "registered" and "registration": a registration
-------- ---------- ------------
effected by preparing and filing a registration statement in compliance with the
Act, the declaration or ordering of effectiveness of such registration statement
by the Commission and the compliance with all applicable state securities or
blue sky laws which will permit the sale of Registrable Stock to the public.
<PAGE>
3
"Registrable Stock": (i) those shares of Common Stock held by
-----------------
Shareholders that were received by such Shareholders upon conversion of shares
of the Company's Class A Stock, Class B Stock, Class C Stock or Class D Stock to
Common Stock upon the consummation of the IPO pursuant to the Company's
Certificate of Designations and (ii) any Common Stock issued or issuable with
respect to or in exchange for such shares of Common Stock by reason of a stock
dividend or other distribution on such shares or stock split or in connection
with a combination of shares, recapitalization, reclassification, exchange,
offer, merger, consolidation or other reorganization. Each share of Registrable
Stock shall cease to be Registrable Stock when (a) a registration statement with
respect to the sale of such stock shall have become effective under the Act and
such stock shall have been disposed of in accordance with such registration
statement, (b) such stock ceases to be outstanding, (c) such stock is no longer
held by a Holder or (d) the fourth anniversary of the IPO has occurred. A
schedule of the number of shares of Registrable Stock held by each Shareholder
as of the date of this Agreement is attached hereto as Exhibit B.
"Registration Expenses": as defined in Section 7.
---------------------
"Underwritten Offering": a registration in which securities of
---------------------
the Company are sold to an underwriter for reoffering to the public.
(b) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in any certificate or
document made or delivered pursuant hereto.
(c) As used herein and in any certificate or other documents
made or delivered pursuant hereto, accounting terms not defined in Section 1(a)
and accounting terms partly defined in Section 1(a) to the extent not defined,
shall have the respective meanings given to them under GAAP.
(d) Any reference to any provision of or rule under the Act
shall encompass any successor provision or rule.
(e) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
section, subsection, schedule and exhibit references are to this
Agreement unless otherwise specified.
(f) The meanings given to terms defined herein shall be equally
applicable to the singular and plural forms of such terms.
2. Incidental Registration. If the Company proposes to register any
-----------------------
of its securities for sale (other than a registration relating to the sale of
securities to employees of the Company pursuant to a stock option, stock
purchase or similar plan including a registration statement on Form S-8, an
exchange offer, a Rule 145 transaction or in connection with the acquisition of
the assets or shares of or merger or consolidation with another company), and
the
<PAGE>
4
registration form to be used may also be used for the registration of the
Registrable Stock, then it shall give written notice (a "Piggyback Notice"), at
its expense, to all Holders then holding Registrable Stock of its intention to
do so at least 10 business days prior to the filing of a registration statement
with respect to such registration with the Commission. The Company shall
specify in the Piggyback Notice the form and manner of, and the other relevant
facts involved in, such proposed registration. If any Holder desires to dispose
of all or part of its Registrable Stock in such registration, it shall deliver
to the Company, within 10 business days after receipt of the Piggyback Notice,
written notice of such request stating the number of shares of Registrable Stock
so proposed to be sold by such Holder. Any Holder may withdraw its request for
inclusion at any time prior to five days prior to the effective date of the
registration statement for such registration. The Company shall use its
commercially reasonable efforts (and, in any event, shall comply with the
provisions of Section 6) to cause all shares of Registrable Stock specified in
such written notice to be included in such registration, subject, however, to
the limitations set forth in Section 3 and provided that, for purposes of this
sentence, commercially reasonable efforts shall not require the Company or any
other seller of securities of the Company (other than a Holder of Registrable
Stock), to reduce the amount or sale price of such securities proposed to be so
registered. No registration of Registrable Stock effected under this Section 2
shall relieve the Company of its obligation to effect registration of
Registrable Stock upon the request of the Initiating Shareholder pursuant to
Section 4.
3. Limitations on Incidental Registration.
--------------------------------------
(a) If the registration of which the Company gives notice
pursuant to Section 2 is for the purpose of permitting a disposition of
securities pursuant to an Underwritten Offering, the Piggyback Notice shall so
state, and, if requested to do so by the managing underwriter of the offering,
the Company shall have the right to limit the aggregate size of the offering or
the number of shares of Registrable Stock to be included therein by the Holders
in accordance with the provisions of Section 3(b) below.
(b) Whenever the number of shares that may be registered
pursuant to Section 2 is limited by the provisions of Section 3(a) above, the
Company shall have priority as to sales over the Holders, and each Holder hereby
agrees that he or she shall withdraw his or her securities from such
registration to the extent necessary to allow the Company or any other seller of
securities of the Company (other than a Holder of Registrable Stock) to include
all the shares it desires to include in such registration, and thereafter the
number of shares of Registrable Stock to be included in such registration shall
be allocated pro rata among holders of Registrable Stock with such allocation to
be made on the basis of the number of shares requested to be included in such
registration by such holders.
(c) Nothing herein shall be construed as creating an obligation
on the part of the Company to register Registrable Stock if the Board of
Directors of the Company shall have determined in its sole discretion not to
proceed with a registration of its securities whether or not a Piggyback Notice
shall have previously been sent by the Company.
<PAGE>
5
4. Registration on Request.
-----------------------
(a) At any time following the expiration of the IPO Lock-Up
Period, the Initiating Shareholder may make by written notice a request that the
Company effect the registration under the Act of all or part of such Initiating
Shareholder's Registrable Stock, specifying the intended method or methods of
disposition thereof; provided that the Initiating Shareholder is entitled to an
aggregate of four such registrations pursuant to this Section 4(a).
(b) Upon receipt of the request of the Initiating Shareholder
under Section 4(a), the Company shall give written notice of the requested
registration within 15 days of receipt of such request to all Holders of
Registrable Stock and thereupon shall use its commercially reasonable efforts to
effect the registration under the Act of:
(i) the Registrable Stock that the Company has been so
requested to register by the Initiating Shareholder, for disposition in
accordance with the intended method or methods of disposition stated in
such request; and
(ii) all other Registrable Stock that the Company has been
requested to register by the Holders thereof by written request delivered
to the Company within 15 days after the giving of such written notice by
the Company (which request shall specify the intended method or methods of
disposition of such Registrable Stock);
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Stock so to be
registered, provided that if the Initiating Shareholder shall determine that the
--------
number of shares of Common Stock to be included in such registration should be
limited due to market conditions or otherwise, the Company shall include in such
registration the number of shares of Common Stock which the Company is so
advised by the Initiating Shareholder can be sold in such offering allocated
first pro rata among the shares of Registrable Stock requested to be registered
- ----- --- ----
by the Initiating Shareholder, and the shares of Registrable Stock held by
Holders requesting pursuant to Section 4(b)(ii) that such shares be included in
such registration and second, if and to the extent additional shares may be
------
included, pro rata among the Company and any other holders of shares of Common
--- ----
Stock, in each case such allocation to be made on the basis of the number of
shares requested to be included in such registration by such holders and the
Company.
(c) Each registration requested pursuant to this Section 4 shall
be effected by the filing of a registration statement on the applicable form
agreed to in writing by the Initiating Shareholder.
5. Underwritten Offerings.
----------------------
(a) Selection of Underwriters. Whenever a registration
-------------------------
requested pursuant to Section 4 hereof is for an Underwritten Offering, the
Initiating Shareholder shall select managing underwriter(s) of recognized
standing to administer the offering, subject to approval by the Company with
such approval not to be unreasonably withheld, and each Holder
<PAGE>
6
requesting registration of its Registrable Stock for disposition in an
Underwritten Offering agrees to include such Registrable Stock in such
underwritten offering and shall be bound by the provisions of this Section 5.
(b) Underwriting Agreement. If requested by the underwriters
----------------------
for any Underwritten Offering of Registrable Stock pursuant to a registration
requested under Section 4 hereof, the Company shall enter into an underwriting
agreement with such underwriters for such offering, such agreement to contain
representations and warranties by the Company and other terms and provisions not
inconsistent with this Agreement as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnities to the effect and to the extent provided in Section 8
hereof; and the Company will cooperate with such Holders of Registrable Stock to
the end that the conditions precedent to the obligations of such Holders of
Registrable Stock under such underwriting agreement shall not include conditions
that are not customary in underwriting agreements with respect to secondary
distributions and shall be otherwise satisfactory to such Holders. The Holders
on whose behalf shares of Registrable Stock are to be distributed by such
underwriters shall be parties to any such underwriting agreement and the
representations and warranties by, and the other agreements on the part of the
Company to and for the benefit of such underwriters, shall also be made to and
for the benefit of such Holders selling Registrable Stock. Such Holders shall
not be required by the Company to make any representations or warranties to or
agreements with the Company or the underwriters (including any restrictions on
sales inconsistent with Section 5(c) hereof) other than reasonable
representations, warranties or agreements regarding such Holder, such Holder's
Registrable Stock and such Holder's intended method or methods of disposition
and any other representation required by law. If requested by the underwriters
for any Underwritten Offering of Registrable Stock pursuant to a registration
under Section 2 hereof, the Holders on whose behalf shares of Registrable Stock
are to be distributed by such underwriters shall execute and deliver to such
underwriters and the Company an Underwriting Agreement, subject to the
limitations set forth in the preceding two sentences.
(c) Restrictions on Sales by Holders. If any registration
--------------------------------
subject to Section 2 or 4 shall be in connection with an Underwritten Offering
on a firm commitment basis, each Holder agrees, if and to the extent requested
in writing by the managing underwriter, not to effect any public sales or
distribution (other than as part of such Underwritten Offering pursuant to
Section 2 or 4, respectively) of Common Stock, any securities of the Company
similar to Common Stock or any securities of the Company convertible,
exchangeable or exercisable for Common Stock, including a sale pursuant to
Rule 144 or pursuant to a registered offering not being distributed on a firm
commitment basis by or through one or more underwriters, within the period from
seven days prior to the effective date of such registration statement up to
ninety (90) days after the effective date of such registration statement or such
other period not to exceed one hundred and eighty (180) days after the effective
date of such registration statement as may be required by such managing
underwriter.
(d) Restrictions on Sales by the Company. The Company agrees
------------------------------------
not to effect any public sale or distribution of any Common Stock, any
securities of the Company
<PAGE>
7
similar to Common Stock or any securities of the Company convertible,
exchangeable or exercisable for Common Stock (including pursuant to a registered
offering not being distributed on a firm commitment basis by or through one or
more underwriters) within the period from seven days prior to the effective date
of any registration statement that includes Registrable Stock to be distributed
by or through one or more underwriters on a firm commitment basis up to ninety
(90) days after the effective date of such registration statement or such other
period not to exceed one hundred and eighty (180) days after the effective date
of such registration statement as may be required by such managing underwriter
unless such sale or distribution is pursuant to such registration statement (or
a separate registration statement filed concurrently); provided, however, that
-------- -------
the foregoing shall not prevent the conversion or exchange of any securities
pursuant to their terms into or for other securities or the offer or sale of
securities by the Company pursuant to a dividend reinvestment plan or to its
employees or directors pursuant to an employee benefit plan.
6. Registration Procedures.
-----------------------
(a) Each Prospective Seller shall furnish to the Company such
information as the Company may reasonably require for inclusion in the
registration statement (and the prospectus included therein).
(b) The Prospective Sellers shall not (until further notice)
effect sales of the shares covered by the registration statement after receipt
of telegraphic or written notice from the Company to suspend sales to permit the
Company to correct or update a registration statement or prospectus.
7. Expenses of Registration. All expenses of registration pursuant
------------------------
to either Section 2 or Section 4, including, without limitation, all
registration and filing fees, printing expenses (including reasonable expenses
of printing prospectuses), expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky qualifications or registrations (or the obtaining of exemptions
therefrom) of Registrable Stock), fees and disbursements of counsel, auditors or
experts for the Company, expenses of any audits incidental to or required by any
such registration, expenses of all marketing and promotional efforts requested
by the managing underwriter ("Registration Expenses") shall be borne by the
Company; provided, however, that each Prospective Seller shall bear all
-------
underwriting discounts, commissions or fees and all brokerage fees or
commissions relating to the sale of its Registrable Stock and the fees and
expenses of counsel for such Prospective Seller.
8. Indemnification.
---------------
(a) Indemnification by the Company. In connection with any
registration statement filed pursuant to Section 2 or 4 hereof, the Company
shall indemnify and hold harmless each Holder selling Registrable Stock covered
by such registration statement, its directors, officers, employees, agents, each
other Person who participates as an underwriter in the
<PAGE>
8
offering or sale of such securities and each other Person, if any, who controls
such Holder or such underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each, an "Indemnified Person"), against any
losses, claims, damages, liabilities or expenses (including reasonable costs of
investigation and reasonable legal expenses), joint or several, to which such
Person may become subject, insofar as such losses, claims, damages, liabilities
or expenses (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the Act, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment thereof or supplement
thereto, or any document incorporated by reference therein, or (ii) 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, or (iii) any
violation by the Company of any federal, state or common law rule or regulation
applicable to the Company and relating to action required of or inaction by the
Company in connection with any such registration, and the Company shall
reimburse such Indemnified Person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding, provided that the Company shall not be
--------
liable in any such case to the extent that any such loss, claim, damage,
liability or expense (or action or proceeding in respect thereof) arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such Indemnified Person
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Person
and shall survive the transfer of such securities by such seller. The Company
shall agree to a provision for contribution relating to such indemnity as shall
be reasonably requested by any seller of Registrable Shares or the underwriters.
(b) Indemnification by the Seller. The Company may require, as
-----------------------------
a condition to including any Registrable Stock in any registration statement
filed pursuant to Section 2 or 4 hereof, that the Company shall have received an
undertaking satisfactory to it from each Prospective Seller to indemnify and
hold harmless such Person, each director of such Person, each officer of such
Person who shall sign such registration statement, each Person who participates
as an underwriter (if such underwriter so requests) in the offering or sale of
such securities and each other Person, if any, who controls the Company or any
such underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages, liabilities or expenses
(including reasonable costs of investigation and reasonable legal expenses),
joint or several, to which such Person may become subject, insofar as such
losses, claims, damages, liabilities or expenses (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or
<PAGE>
9
any amendment thereof or supplement thereto, or any document incorporated by
reference therein, or (ii) 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, if such actual or alleged statement or omission
described in (i) or (ii) above was made in reliance upon and in conformity with
written information furnished to such Person through an instrument duly executed
by such Prospective Seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. The indemnification
obligations of any Prospective Seller shall not be greater than the dollar
amount of the net proceeds received by such Prospective Seller upon the sale of
the Registrable Stock giving rise to such obligation. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such Person or any such director, officer, participating Person or
controlling Person and shall survive the transfer of such securities by such
Prospective Seller.
(c) Notice of Claims, etc. Promptly after receipt by an
----------------------
indemnified party of notice of the commencement of any action, proceeding,
investigation or threat involving a claim referred to in Section 8(a) or 8(b),
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, proceeding, investigation or threat; provided that
--------
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 8 except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless a conflict of interest between
such indemnified and indemnifying parties exists in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that it may wish, and after notice from the indemnifying party to such
indemnified party of its elections so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the consent of the indemnified party, which consent shall
not be unreasonably withheld or delayed, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that
---------------------
specified in the preceding subdivisions of this Section 8 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Stock with respect to any required registration or other qualification of such
Registrable Stock under any state securities or blue sky law or regulation of a
governmental authority other than the Act.
(e) Contribution. If the indemnification provided for in
------------
Section 8(a) or 8(b) above is unavailable or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of
<PAGE>
10
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
parties on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. Such relative fault shall be determined by
reference to, among other things, whether any untrue or alleged untrue statement
of a material fact or any omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party, or by the indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 8(e) were determined by pro
---
rata allocation or by any other method of allocation that does not take into
- ----
account the equitable considerations referred to in the immediately preceding
paragraph; provided that the Company and each holder of Registrable Stock shall
--------
agree with each other and the underwriters of the Registrable Stock, if
requested by such underwriters, that the underwriter's portion of such
contribution shall not exceed the underwriting discount. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities or actions in respect thereof referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
The contribution obligations of any Prospective Seller shall not be greater than
the excess of (A) the dollar amount of the net proceeds received by such
Prospective Seller upon the sale of the Registrable Stock giving rise to such
contribution obligation over (B) the dollar amount of any damages that such
Holder has otherwise been required to pay by reason of the untrue or alleged
untrue statement or omission or alleged omission giving rise to such obligation.
No Person guilty of fraudulent misrepresentations (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.
(f) Indemnification Payments. The indemnification required by
------------------------
this Section 8 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
9. Miscellaneous.
-------------
(a) Notices. Any notice or other communication required or
-------
permitted to be given hereunder shall be in writing and shall be sent by
overnight courier service; or delivered (in person or by telecopy) against
receipt, in each case to the party to whom it is given: (i) if to the Company,
to it at 12 East 49th Street, 19th Floor, New York, New York 10017, with a copy
to Gibson, Dunn & Crutcher LLP, 200 Park Avenue, 48th Floor, New York, New York
10016, attention: Charles K. Marquis; and (ii) if to the Holders, to each at
the address set forth on Exhibit B to this Agreement.
<PAGE>
11
Any notice or other communication given hereunder shall be deemed
given when sent, except for a notice changing a party's address, which shall be
deemed given at the time of receipt thereof.
(b) Assignment. Except with respect to Permitted Transferees,
----------
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by the Company or the Holders without the prior written
consent of the other party, and any purported assignment shall be void.
(c) Binding Effect. The provisions of this Agreement shall be
--------------
binding upon and inure to the benefit of the Company and the Holders and their
respective successors and permitted assigns.
(d) Third-Party Beneficiaries. This Agreement does not create,
-------------------------
and shall not be construed as creating, any rights enforceable by any Person not
a party to this Agreement other than any assignee with respect to whom the
respective assignment was made in accordance with the terms hereof.
(e) Effectiveness. This Agreement shall be effective as of the
-------------
Effective Date.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Governing Law. This Agreement and the rights and obligations of
-------------
the parties under this Agreement shall be governed by, and construed and
interpreted in accordance with, the substantive law of the State of New York
without regard to principles of choice or conflicts of laws.
(h) Attorney's Fees. In the event of litigation arising between the
---------------
parties respecting the subject matter hereof, the prevailing party shall be
entitled to recover its reasonable attorney's fees and costs.
(i) Expenses. Except as otherwise specifically set forth herein,
--------
each party shall bear its own costs and expenses incurred in connection with
this Agreement or the transactions herein contemplated.
<PAGE>
12
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement or
caused this Agreement to be executed by their respective officers thereunto duly
authorized as of the day and year first written above.
SAKS HOLDINGS, INC.
By:___________________________________
Name:
Title:
SHAREHOLDERS:
FIFTH AVENUE HOLDINGS LIMITED
By:__________________________________
Name:
Title:
FIFTH AVENUE INVESTMENTS LIMITED
By:___________________________________
Name:
Title:
FIFTH AVENUE EQUITY LIMITED
By:___________________________________
Name:
Title:
SFA HOLDINGS LIMITED
By:___________________________________
Name:
Title:
<PAGE>
13
SFA INVESTMENTS LIMITED
By:___________________________________
Name:
Title:
SFA EQUITY LIMITED
By:___________________________________
Name:
Title:
REAL CLOTHES HOLDINGS LIMITED
By:___________________________________
Name:
Title:
REAL CLOTHES INVESTMENTS LIMITED
By:___________________________________
Name:
Title:
REAL CLOTHES EQUITY LIMITED
By:___________________________________
Name:
Title:
<PAGE>
14
WORKS HOLDINGS LIMITED
By:___________________________________
Name:
Title:
J.C. ORR & CO.
By:___________________________________
Name:
Title:
MACRO INTERNATIONAL LTD
By:___________________________________
Name:
Title:
GOVERNMENT OF KUWAIT
By:___________________________________
Name:
Title:
SAKS FIFTH AVENUE HOLDINGS II LIMITED
By:___________________________________
Name:
Title:
<PAGE>
15
SAKS FIFTH AVENUE INVESTMENTS II LIMITED
By:___________________________________
Name:
Title:
SFA SAUDI INVESTMENTS LIMITED
By:___________________________________
Name:
Title:
SFA SAUDI HOLDINGS LIMITED
By:___________________________________
Name:
Title:
SFA LABEL INVESTMENTS LIMITED
By:___________________________________
Name:
Title:
ESTATE OF BERNICE PAUAHI BISHOP
By:___________________________________
Name:
Title:
<PAGE>
16
SFA FOLIO LIMITED
By:___________________________________
Name:
Title:
SFA LABEL LIMITED
By:___________________________________
Name:
Title:
SFA COLLECTION LIMITED
By:___________________________________
Name:
Title:
SFA DESIGNER LIMITED
By:___________________________________
Name:
Title:
SAKS FIFTH AVENUE EQUITY LIMITED
By:___________________________________
Name:
Title:
FLAIR LIMITED
By:___________________________________
Name:
Title:
<PAGE>
17
CHEMICAL NOMINEES (GUERNSEY) LTD.
By:___________________________________
Name:
Title:
SAKS INVESTMENTS LIMITED
By:___________________________________
Name:
Title:
SAKS EQUITY LIMITED
By:___________________________________
Name:
Title:
SAKS CAPITAL LIMITED
By:___________________________________
Name:
Title:
BALLET LIMITED
By:___________________________________
Name:
Title:
DENARY LIMITED
By:___________________________________
Name:
Title:
<PAGE>
18
GLEAM LIMITED
By:___________________________________
Name:
Title:
HIGHLANDS LIMITED
By:___________________________________
Name:
Title:
NOBLE LIMITED
By:___________________________________
Name:
Title:
OUTRIGGER LIMITED
By:___________________________________
Name:
Title:
QUILL LIMITED
By:___________________________________
Name:
Title:
RADIAL LIMITED
By:___________________________________
Name:
Title:
<PAGE>
SHORELINE LIMITED
By:___________________________________
Name:
Title:
ZINNIA LIMITED
By:___________________________________
Name:
Title:
Exhibit 5.01
September 17, 1996
(212) 351-4000 C 80337-00058
Saks Holdings, Inc.
12 East 49th Street
New York, New York 10017
Re: Registration Statement on Form on Form S-1
-------------------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-1
(the "Registration Statement"), File No. 333-11103, of Saks
Holdings, Inc., a Delaware corporation (the "Company"), filed
with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), in connection with the public offering of up
to 9,200,000 issued and outstanding shares (the "Shares") of the
Company's Common Stock, par value $.01 per share (the "Common
Stock"), by certain holders of the shares (the "Selling
Stockholders"). Capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Registration
Statement.
For the purposes of the opinion set forth below, we
have examined and are familiar with the proceedings taken and
proposed to be taken by the Company in connection with the
authorization and issuance of the Shares, including, among other
things, such corporate records of the Company and certificates of
officers of the Company and of public officials and such other
documents as we have deemed relevant and necessary as the basis
for the opinion set forth below. In such examination, we have
assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to
<PAGE>
____________________
original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of
such copies.
Based upon the foregoing examination and in reliance
thereon, and subject to the assumptions stated and relying on
statements of fact contained in the documents that we have
examined, we are of the opinion that the Shares are validly
issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the
laws of any jurisdiction other than the laws of the United States
of America and the General Corporation Law of the State of
Delaware. In rendering this opinion, we assume no obligation to
revise or supplement this opinion should current laws, or the
interpretations thereof, be changed.
We consent to the filing of this opinion as an exhibit
to the Registration Statement, and we further consent to the use
of our name under the caption "Validity of Shares" in the
Registration Statement and the Prospectus which forms a part
thereof. In giving these consents, we do not thereby admit that
we are within the category of persons whose consent is required
under Section 7 of the Securities Act or the Rules and
Regulations of the Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
