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EXHIBIT 1.1
UTi WORLDWIDE INC.
(A British Virgin Islands company)
____________ Ordinary Shares
UNDERWRITING AGREEMENT
_______________, 2000
BEAR, STEARNS & CO. INC.
LAZARD FRERES & CO. LLC
BB&T CAPITAL MARKETS/SCOTT & STRINGFELLOW, INC.
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, N.Y. 10167
Dear Sirs,
UTi Worldwide Inc., a corporation organized and existing under the laws
of the British Virgin Islands (the "Company"), proposes, subject to the terms
and conditions stated herein, to issue and sell to the several underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of __________
shares (the "Firm Shares") of its Ordinary Shares, no par value per share (the
"Ordinary Shares") and, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares, at the option of the Underwriters,
up to an additional ____________ shares (the "Additional Shares") of the
Ordinary Shares. The Firm Shares and any Additional Shares purchased by the
Underwriters are referred to herein as the "Shares." The Shares are more fully
described in the Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form F-1 (No. 333-_____), for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Act"). Such registration statement, including the prospectus, financial
statements and schedules, exhibits and all other documents filed as a part
thereof, as amended at the time of effectiveness of the registration statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A or Rule 434 of the Rules
and Regulations of the Commission under the Act (the "Regulations"), is herein
called the "Registration Statement" and the prospectus, in the form first filed
with the Commission pursuant to Rule 424(b) of the Regulations or filed as part
of the
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Registration Statement at the time of effectiveness if no Rule 424(b) or Rule
434 filing is required, is herein called the "Prospectus". The term "preliminary
prospectus" as used herein means a preliminary prospectus as described in Rule
430 of the Regulations. The Company is entitled, under the Regulations, to
utilize Form F-1 to register the Shares.
(b) At the time of the effectiveness of the Registration Statement
or the effectiveness of any post-effective amendment to the Registration
Statement, when the Prospectus is first filed with the Commission pursuant to
Rule 424(b) or Rule 434 of the Regulations, when any supplement to or amendment
of the Prospectus is filed with the Commission and at the Closing Date and the
Additional Closing Date, if any, (as hereinafter respectively defined), the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
applicable provisions of the Act and the Regulations and does not or will not
contain an untrue statement of a material fact and does not or will not omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein (i) in the case of the Registration Statement, not
misleading and (ii) in the case of the Prospectus, in light of the circumstances
under which they were made, not misleading. When any related preliminary
prospectus was first filed with the Commission (whether filed as part of the
registration statement for the registration of the Shares or any amendment
thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
preliminary prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the Act and
the Regulations and did not contain an untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein in light of the circumstances
under which they were made not misleading. No representation and warranty is
made in this subsection (b), however, with respect to any information contained
in or omitted from the Registration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through you as herein stated
expressly for use in connection with the preparation thereof. If Rule 434 is
used, the Company will comply with the requirements of Rule 434.
(c) Deloitte & Touche, who have audited the financial statements and
supporting schedules included in the Registration Statement, are independent
public accountants with respect to the Company as required by the Act and the
Regulations.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, there has been no material
adverse change or any development reasonably likely to result in a prospective
material adverse change in the business, prospects, properties, operations,
condition (financial or other) or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business, and since the date of the latest
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balance sheet presented in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has incurred or undertaken any
liabilities or obligations, direct or contingent, which are material to the
Company and its subsidiaries taken as a whole, except for liabilities or
obligations which are described in or reflected in the Registration Statement
and the Prospectus.
(e) This Agreement and the transactions contemplated herein have
been duly and validly authorized by the Company and this Agreement has been duly
and validly executed and delivered by the Company.
(f) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby do not and will not (i)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any agreement, instrument, franchise,
license or permit to which the Company or any of its subsidiaries is a party or
by which any of such corporations or their respective properties or assets may
be bound or (ii) violate or conflict with any provision of the Memorandum and
Articles of Association of the Company or the articles or certificate of
incorporation, by-laws or similar governing documents of any of its subsidiaries
or any judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties or
assets. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, including the issuance,
sale and delivery of the Shares to be issued, sold and delivered by the Company
hereunder, except the registration under the Act of the Shares and the approval
of the Shares for quotation on the NASDAQ National Market, and such consents,
approvals, authorizations, orders, registrations, filings, qualifications,
licenses and permits as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters.
(g) All of the outstanding Ordinary Shares are duly and validly
authorized and issued, fully paid and nonassessable and were not issued and are
not now in violation of or subject to any preemptive rights. The Shares, when
issued, delivered and sold in accordance with this Agreement, will be duly and
validly issued and outstanding, fully paid and nonassessable, and will not have
been issued in violation of or be subject to any preemptive rights. The Company
had, at __________, 2000, an authorized and outstanding capitalization as set
forth in the Registration Statement and the Prospectus. The Ordinary Shares, the
Firm Shares, and the Additional Shares conform to the descriptions thereof
contained in the Registration Statement and the Prospectus. Except as described
in the Registration Statement and the Prospectus, all outstanding equity
securities of any subsidiary of the Company have been duly and validly issued
and are fully paid and non-assessable and are owned of record and beneficially
by the Company or another subsidiary of the Company.
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(h) Each of the Company and its subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and its subsidiaries is duly
qualified and in good standing as a foreign corporation in each jurisdiction in
which the character or location of its properties (owned, leased or licensed) or
the nature or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing which will not in the
aggregate have a material adverse effect on the Company and its subsidiaries
taken as a whole. Each of the Company and its subsidiaries has all requisite
power and authority, and all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses and permits of and from all
public, regulatory or governmental agencies and bodies, to own, lease and
operate its properties and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus (except for those the
absence of which individually or in the aggregate would not be reasonably likely
to have a material adverse effect on the Company and its Subsidiaries taken as a
whole), and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome restriction
not adequately disclosed in the Registration Statement and the Prospectus.
(i) Except as described in the Prospectus, there is no litigation or
governmental proceeding to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its subsidiaries is
subject or which is pending or, to the knowledge of the Company, contemplated
against the Company or any of its subsidiaries which might result in any
material adverse change or any development involving a material adverse change
in the business, prospects, properties, operations, condition (financial or
other) or, results of operations of the Company and its subsidiaries taken as a
whole or which is required to be disclosed in the Registration Statement and the
Prospectus.
(j) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which constitutes or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Ordinary Shares to facilitate the sale or
resale of the Shares.
(k) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the Prospectus
present fairly the financial position of the Company as of the dates indicated
and the results of its operations for the periods specified; except as otherwise
stated in the Registration Statement, said financial statements have been
prepared in accordance with International Accounting Standards ("IAS") applied
on a consistent basis; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein. The
selected financial data and the summary financial data included in the
Prospectus present fairly the information shown therein and have been compiled
on a basis consistent with that of the financial statements included in the
Registration Statement. No other financial statements are required by Form F-1
or otherwise to be included in the Registration Statement or the Prospectus
other than those included therein.
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(l) Except as described in the Prospectus, no holder of securities
of the Company has any rights to the registration of securities of the Company
because of the filing of the Registration Statement or otherwise in connection
with the sale of the Shares contemplated hereby.
(m) The Company is not, and upon consummation of the transactions
contemplated hereby will not be, subject to registration as an "investment
company" under the Investment Company Act of 1940 or classified as a passive
foreign investment company for United States federal income tax purposes.
(n) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other hand, which is required by the Act to be described in
the Registration Statement and the Prospectus which is not so described.
(o) The Company is in compliance with all environmental, safety or
similar laws or regulations applicable to them or their business or property
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants and the
disposal of hazardous or toxic substances, wastes, pollutants and contaminants
except where non-compliance would not have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(p) Neither the Company nor any subsidiary is in violation or breach
of, or in default under (nor has an event occurred that with notice, lapse of
time or both, would constitute a default under), any material contract, and each
such material contract is in full force and effect, and is the legal, valid and
binding obligation of the Company or its subsidiary, as the case may be, and
(subject to (i) applicable bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or similar laws affecting the enforceability of creditors'
rights generally and (ii) general principles of equity, including without
limitation, standards of materiality, good faith, fair dealing and
reasonableness and limits on the availability of equitable remedies) is
enforceable by the Company or its subsidiary, as the case may be, in accordance
with its terms.
(q) The Company and its subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with IAS and to maintain accountability
for assets; (iii) the access to the respective assets of the Company and its
subsidiaries is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
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(r) There are no existing or, to the knowledge of the Company,
threatened material labor disputes with the employees of the Company or any
subsidiary and there are no existing, or to the knowledge of the Company and its
subsidiaries, threatened disputes with any material independent contractor of
the Company or any subsidiary.
(s) The Company and its subsidiaries have filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions therefor and the Company and its subsidiaries have paid all
material taxes required to be paid by it or them and any other assessment, fine
or penalty levied against it or them, to the extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty that is
currently being contested in good faith.
(t) Except as described in the Registration Statement and as shall
be described in the Prospectus, the Company or one of its subsidiaries have (i)
good and marketable title to all material real and personal properties owned by
it or them, free and clear of all liens, security interests, pledges, charges,
encumbrances and mortgages, and (ii) valid, subsisting and enforceable leases
for all material real and personal properties leased by it or them, in each
case, subject to such exceptions as, individually or in the aggregate, do not
and are not reasonably likely to have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(u) The Ordinary Shares of the Company, including the Shares, have
been approved for quotation on the NASDAQ National Market, subject only to
official notice of issuance.
(v) Except as described in the Registration Statement and the
Prospectus, the Company and its subsidiaries own or possess valid and
enforceable licenses or other rights to use all inventions, patents, patent
applications, trademarks, service marks, trade names, copyrights, technology,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) proprietary
techniques (including processes and substances) and other intellectual property
rights necessary in all material respects to conduct, the business now conducted
or presently contemplated to be conducted by the Company and its subsidiaries,
taken as a whole, as described in the Registration Statement and the Prospectus
("Intellectual Property"); other than as described in the Registration Statement
and the Prospectus: (i) there are no third parties who have any rights in the
Intellectual Property that could materially preclude the Company or its
subsidiaries from conducting its business as currently conducted or as presently
contemplated to be conducted as described in the Registration Statement and the
Prospectus; (ii) there are no pending or, to the Company's knowledge, threatened
actions, suits, proceedings, investigations or claims by others challenging the
rights of the Company, its subsidiaries or (if the Intellectual Property is
licensed) to the Company's knowledge, challenging the rights of the licensor
thereof in any material Intellectual Property owned or licensed to the
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Company or its subsidiaries; (iii) the Company, its subsidiaries and (if the
Intellectual Property is licensed) to the Company's knowledge, the licensor
thereof has not infringed, or received any notice of infringement of or conflict
with, any rights of others with respect to any material Intellectual Property;
and (iv) there is, to the knowledge of the Company, no dispute between it or any
licensor with respect to any material Intellectual Property. True and correct
copies of all material licenses and other material agreements between the
Company, its subsidiaries and any third party relating to the Intellectual
Property, and all amendments and supplements thereto, have been provided to you.
(w) Each of the Company and its subsidiaries maintains insurance
with insurers of recognized financial responsibility of the types and in the
amounts (i) generally deemed adequate for its business and consistent with
insurance coverage maintained by similar companies in similar businesses and
(ii) required under any of the Company's or its subsidiaries' agreements,
licenses or other contracts, all of which insurance is in full force and effect;
the Company has no reason to believe that it will not be able to renew its
existing insurance as and when such coverage expires or to obtain similar
insurance adequate and customary for its business and sufficient to satisfy any
requirements of its contracts at a cost that would not have a material adverse
effect.
(x) The Luxembourg Stock Exchange has suspended the Ordinary Shares
from trading thereon and has approved the de-listing thereof effective upon the
Closing Date (as defined below).
(y) Neither the Company nor any subsidiary has engaged in any
conduct which would constitute a violation of any provisions of the Employee
Retirement Income Security Act of 1974, as amended, or any provisions of the
Foreign Corrupt Practices Act, or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a material adverse effect on the business, prospects, financial
condition or results of the operation of the Company and its subsidiaries, taken
as a whole.
(z) Neither the Ordinary Shares, the Firm Shares nor the Additional
Shares are or will be at the Closing Date subject to any transfer taxes, stamp
duties or similar charges under the laws of the British Virgin Islands.
(aa) The Company or its subsidiaries have possession of original
share certificates representing the outstanding capital stock of all of the
subsidiaries of the Company (except as disclosed in the Prospectus, including
the notes to the financial statements included therein, and in the case of
acquisitions of less than 100% of the stock of companies acquired since January
31, 2000, none of which are material to the Company and its subsidiaries taken
as a whole, and except where such are pledged pursuant to arrangements
previously disclosed in writing to you by the Company). Such certificates
reflect as the registered owner thereof either the Company or one of its
subsidiaries (except as disclosed in the Prospectus, including the notes to the
financial statements included therein, and in the case of acquisitions of less
than 100% of the stock of companies acquired since January 31, 2000, none of
which are material to the Company and its subsidiaries taken as a whole, and
except where local law requires a
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nominee shareholder or a local resident as the shareholder of record or in the
case of bearer shares). The respective numbers of shares of capital stock
represented by such certificates is in agreement as to each subsidiary with the
share ownership information appearing in the share register of the subsidiary
issuing such capital stock. Such share registers do not reflect any outstanding
shares which are owned by any person other than the Company or one of its
subsidiaries (except as disclosed in the Prospectus, including the notes to the
financial statements included therein, and in the case of acquisitions of less
than 100% of the stock of companies acquired since January 31, 2000, none of
which are material to the Company and its subsidiaries taken as a whole, and
except where local law requires a nominee shareholder or a local resident as the
shareholder of record or in the case of bearer shares).
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $_______, the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of certificates
for, the Shares shall be made at the office of Bear, Stearns & Co. Inc., 245
Park Avenue, New York, N.Y. 10167, or at such other place as shall be agreed
upon by you and the Company, at 10:00 A.M. on the third or fourth business day
(as permitted under Rule 15c6-1 under the Exchange Act) (unless postponed in
accordance with the provisions of Section 9 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company has elected to
rely upon Rule 430A of the Regulations, the third or fourth business day (as
permitted under Rule 15c6-1 under the Exchange Act) after the determination of
the initial public offering price of the Shares), or such other time not later
than ten business days after such date as shall be agreed upon by you and the
Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company by wire transfer in same
day funds, against delivery to you for the respective accounts of the
Underwriters of certificates for the Shares to be purchased by them.
Certificates for the Shares shall be registered in such name or names and in
such authorized denominations as you may request in writing at least two full
business days prior to the Closing Date. The Company will permit you to examine
and package such certificates for delivery at least one full business day prior
to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters the
option to purchase up to ______ Additional Shares at the same purchase price per
share to be paid by the Underwriters to the Company for the Firm Shares as set
forth in this Section 2, for the sole purpose of covering over-allotments from
time to time in the sale of Firm Shares by the Underwriters. This option may be
exercised at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by
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written notice by you to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised and the
date and time, as reasonably determined by you, when the Additional Shares are
to be delivered (such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that the Additional Closing Date
shall not be earlier than the Closing Date or earlier than the second full
business day after the date on which the option shall have been exercised nor
later than the eighth full business day after the date on which the option shall
have been exercised (unless such time and date are postponed in accordance with
the provisions of Section 9 hereof). Certificates for the Additional Shares
shall be registered in such name or names and in such authorized denominations
as you may request in writing at least two full business days prior to the
Additional Closing Date. The Company will permit you to examine and package such
certificates for delivery at least one full business day prior to the Additional
Closing Date.
The number of Additional Shares to be sold to each Underwriter shall be
the number which bears the same ratio to the aggregate number of Additional
Shares being purchased as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto (or such number increased as set forth
in Section 9 hereof) bears to the number of Firm Shares being purchased from the
Company, subject, however, to such adjustments to eliminate any fractional
shares as you in your sole discretion shall make.
Payment for the Additional Shares shall be made by wire transfer in
same day funds and the closing shall occur at the offices of Bear, Stearns & Co.
Inc., 245 Park Avenue, New York, N.Y. 10167, or such other location as may be
mutually acceptable, upon delivery of the certificates for the Additional Shares
to you for the respective accounts of the Underwriters.
3. Offering. Upon your authorization of the release of the Firm Shares,
the Underwriters propose to offer the Shares for sale to the public upon the
terms set forth in the Prospectus.
4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) If the Registration Statement has not yet been declared
effective, the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is otherwise
required under Rule 424(b) or Rule 434, the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule
434 within the prescribed time period and will provide evidence satisfactory to
you of such timely filing. If the Company elects to rely on Rule 434, the
Company will prepare and file a term sheet that complies with the requirements
of Rule 434.
The Company will notify you immediately (and, if requested by you,
will confirm such notice in writing) (i) when the Registration Statement and any
amendments thereto become effective, (ii) of any
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request by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) of the
mailing or the delivery to the Commission for filing of any amendment of or
supplement to the Registration Statement or the Prospectus, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of the
initiation, or the threatening, of any proceedings therefor, (v) of the receipt
of any comments from the Commission, and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for that purpose. If the Commission shall propose or enter a stop
order at any time, the Company will make every reasonable effort to prevent the
issuance of any such stop order and, if issued, to obtain the lifting of such
order as soon as possible. The Company will not file any amendment to the
Registration Statement or any amendment of or supplement to the Prospectus
(including the prospectus required to be filed pursuant to Rule 424(b)or Rule
434) that differs from the prospectus on file at the time of the effectiveness
of the Registration Statement before or after the effective date of the
Registration Statement to which you shall reasonably object in writing after
being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would, in the judgment
of the Underwriters or the Company include an 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, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary at any
time to amend or supplement the Prospectus or Registration Statement to comply
with the Act or the Regulations, the Company will notify you promptly and
prepare and file with the Commission an appropriate amendment or supplement (in
form and substance satisfactory to you) which will correct such statement or
omission and will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
(c) The Company will promptly deliver to you two signed copies of
the Registration Statement, including exhibits and all amendments thereto, and
the Company will promptly deliver to each of the Underwriters such number of
copies of any preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, and
as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with
you, at or prior to the time of effectiveness of the Registration Statement, to
qualify the Shares for offering and sale under the securities laws relating to
the offering or sale of the Shares of such jurisdictions as you may designate
and to maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event shall the Company be obligated in
connection therewith to (1) qualify as a foreign corporation, (2) execute a
general consent to service of process, or (3) become subject to service of
process in suits or taxation in any jurisdiction in which it is not now so
subject.
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(e) The Company will make generally available (within the meaning of
Section 11(a) of the Act) to its security holders and to you as soon as
practicable, but not later than 45 days after the end of its fiscal quarter in
which the first anniversary date of the effective date of the Registration
Statement occurs, an earning statement (in form complying with the provisions of
Rule 158 of the Regulations) covering a period of at least twelve consecutive
months beginning after the effective date of the Registration Statement.
(f) During the period of 180 days from the date of the Prospectus,
the Company will not, without your prior written consent, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, any of its Ordinary Shares (or any securities
convertible into, exercisable for or exchangeable for its Ordinary Shares), and
the Company will obtain the undertaking of each of its executive officers and
directors and such of its shareholders as have been heretofore designated by you
and listed on Schedule II attached hereto not to engage in any of the
aforementioned transactions on their own behalf, other than the Company's sale
of Shares hereunder and the Company's grant of options under its existing stock
option plans and stock purchase plans as described in the Prospectus or as
otherwise described in the Prospectus or the Company's issuance of its Ordinary
Shares upon the exercise of presently outstanding stock options or under its
existing stock purchase plans and except for the issuance of its Ordinary Shares
in connection with the acquisition of assets described under "Recent
Developments" in the Prospectus and except as otherwise provided in Schedule II.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you copies of (i) all
reports to its shareholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
(h) The Company will apply the proceeds from the sale of the Shares
as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its best efforts to cause the Shares to be
listed for inclusion in the NASDAQ National Market.
(j) The Company will file with the Commission such reports on Form
SR as may be required pursuant to Rule 463 of the Regulations.
5. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, and subject to
Section 11(d) below, the Company hereby agrees to pay all costs and expenses
incident to the performance of the obligations of the Company hereunder,
including those in connection with (i) preparing, printing, duplicating, filing
and distributing the Registration Statement, as originally filed and all
amendments thereof (including all exhibits thereto), any preliminary prospectus,
the Prospectus and any amendments or supplements thereto (including, without
limitation, fees and expenses of the Company's accountants and counsel), the
underwriting documents (including this Agreement and the Agreement Among
Underwriters, the Selling Agreement and the Blue Sky
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<PAGE> 12
Memorandum) and all other documents related to the public offering of the Shares
(including those supplied to the Underwriters in quantities as hereinabove
stated), (ii) the issuance, transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
qualification of the Shares under state or foreign securities or Blue Sky laws,
including the costs of printing and mailing a preliminary and final "Blue Sky
Survey" and the reasonable fees of counsel for the Underwriters and such
counsel's disbursements in relation thereto, (iv) quotation of the Shares on the
NASDAQ National Market, (v) filing fees of the Commission and the National
Association of Securities Dealers, Inc. (the "NASD") and the reasonable fees and
disbursements of counsel for the Underwriters in connection with any required
review by the NASD; (vi) the cost of printing certificates representing the
Shares and (vii) the cost and charges of any transfer agent or registrar.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company herein contained, as of the date hereof and as of the
Closing Date (for purposes of this Section 6 "Closing Date" shall refer to the
Closing Date for the Firm Shares and any Additional Closing Date, if different,
for the Additional Shares), to the absence from any certificates, opinions,
written statements or letters furnished to you or to Pillsbury Madison & Sutro
LLP ("Underwriters' Counsel") pursuant to this Section 6 of any misstatement or
omission, to the performance by the Company of its obligations hereunder, and to
the following additional conditions:
(a) The Registration Statement shall have become effective and all
necessary foreign regulatory or stock exchange approval has been received not
later than 5:30 P.M., New York time, on the date of this Agreement, or at such
later time and date as shall have been consented to in writing by you; if the
Company shall have elected to rely upon Rule 430A or Rule 434 of the
Regulations, the U.S. Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof; and, at or prior to the
Closing Date no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of Paul,
Hastings, Janofsky & Walker LLP, United States counsel for the Company, dated
the Closing Date and addressed to the Underwriters, satisfactory to Pillsbury
Madison & Sutro LLP, counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters, to the
effect that:
(i) Each U.S. Principal Subsidiary (as defined below) has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. Each U.S.
Principal Subsidiary is duly qualified and in good standing as a
foreign corporation in each jurisdiction where such U.S. Principal
Subsidiary leases or owns real property. Each U.S. Principal Subsidiary
has the requisite corporate power and corporate
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<PAGE> 13
authority to own, lease and license its respective properties and to
conduct its business as now being conducted. All the issued and
outstanding capital stock of each U.S. Principal Subsidiary of the
Company has been duly and validly issued and is fully paid and
nonassessable and was not issued in violation of any preemptive rights
provided for in the articles or certificate of incorporation thereof.
Based upon such counsel's review of the stock ledgers of such
companies, the issued and outstanding capital stock of each U.S.
Principal Subsidiary is owned by the immediate parent company thereof
and, to such counsel's knowledge, is free and clear of liens,
encumbrances, claims, security interests or other restrictions on
transfer, except for the pledge of shares of the U.S. Principal
Subsidiaries to a lender of a Principal Subsidiary as previously
disclosed to you in writing by the Company. As used in said opinion,
the term "U.S. Principal Subsidiary" shall mean Union-Transport
Corporation, a New York corporation, and Union-Transport (U.S.)
Holdings, Inc., a Delaware corporation.
(ii) The Shares have been approved for quotation on the NASDAQ
National Market.
(iii) Assuming due authorization by the Company, this Agreement
has been duly and validly executed and delivered by the Company to the
extent execution and delivery are governed by New York law.
(iv) To such counsel's knowledge, there is no litigation or
governmental or other action, suit, proceeding or investigation before
any court in the United States (state or federal) or before or by any
public, regulatory or governmental agency or body pending or threatened
against, or involving the properties or business of, the Company or any
of its U.S. Principal Subsidiaries, which is of a character required to
be disclosed in the Registration Statement and the Prospectus which has
not been properly disclosed therein.
(v) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby by the
Company do not and will not (A) conflict with or result in a breach of
any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any agreement, instrument, franchise,
license, permit or deed of trust known to such counsel and which is
filed as an exhibit to the Registration Statement to which the Company
or any of its U.S. Principal Subsidiaries is a party or by which any of
such corporations or their respective properties or assets may be bound
or (B) violate or conflict with any provision of the articles or
certificate of incorporation, by-laws or similar governing documents of
any U.S. Principal Subsidiary, or, to the knowledge of such counsel,
any judgment, decree, order, statute, rule or regulation of any court
in the United States (state or federal) or any governmental or
regulatory agency or body having jurisdiction over the Company or any
such subsidiary or any of their
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<PAGE> 14
respective properties or assets. No consent, approval, authorization,
order, registration, filing, qualification, license or permit of or
with any United States Federal or New York or California state court or
governmental, or regulatory agency or body having jurisdiction over the
Company or any of its U.S. Principal Subsidiaries or any of their
respective properties or assets is required for the execution, delivery
and performance of this Agreement or the consummation of the
transactions contemplated hereby, except for (1) such 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 rules and regulations of the National Association
of Securities Dealers, Inc. (as to all of which such counsel need
express no opinion) and (2) such as have been made or obtained under
the Act.
(vi) The Registration Statement, as of its effective date, and
the Prospectus, as of its date, and any amendments thereof or
supplements thereto (other than the financial statements and schedules
and other financial data included or incorporated by reference therein,
as to which no opinion need be rendered) comply as to form in all
material respects with the requirements of the Act and the Regulations.
(vii) The Registration Statement is effective under the Act,
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereof has been issued and to such counsel's knowledge, no
proceedings therefor have been initiated or threatened by the
Commission and all filings required by Rule 424(b) of the Regulations
have been made.
(viii) The statements set forth in the Prospectus under the
caption "United States Federal Income Tax Consequences" and the seventh
and eighth paragraphs under the caption "Underwriting," insofar as they
purport to describe and summarize the provisions of the laws and
documents referred to therein, are accurate, complete and fair in all
material respects;
(ix) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act; and
(x) In addition, such opinion shall also contain a statement
that such counsel has participated in conferences with officers and
representatives of the Company, representatives of the independent
public accountants for the Company and the Underwriters at which the
contents and the Prospectus and related matters were discussed and, no
facts have come to the attention of such counsel which would lead such
counsel to believe that either the Registration Statement at the time
it became effective (including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule
430A(b) or Rule 434, if applicable), or any post-effective amendment
thereof made prior to the Closing Date as of the date of such
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<PAGE> 15
amendment, contained an untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus as
of its date (or any amendment thereof or supplement thereto made prior
to the Closing Date as of the date of such amendment or supplement) and
as of the Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need express no belief or
opinion with respect to the financial statements and schedules and
other financial data included or incorporated by reference therein). In
addition, such counsel shall state that they have not independently
verified the accuracy, completeness or fairness of the statements made
or included in the Registration Statement or the Prospectus and take no
responsibility therefor, except as and to the extent set forth in
paragraph (viii) above.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on opinions of counsel in foreign
jurisdictions as to matters of foreign law and on certificates of responsible
officers of the Company and certificates or other written statements of officers
of departments of various jurisdictions having custody of documents respecting
the corporate existence or good standing of the Company and its subsidiaries,
provided that copies of any such opinions, statements or certificates shall be
delivered to Underwriters' Counsel and are in form and substance reasonably
satisfactory to such Underwriters' Counsel and provided that as to such
opinions, such other counsel expressly authorizes such reliance and counsel to
the Company expressly states in their opinion that such counsel's and your
reliance on such opinion is justified.
(c) At the Closing Date, you shall have received the opinion, dated
as of the Closing Date, of Harney, Westwood & Riegels, British Virgin Islands
counsel for the Company, addressed to the Underwriters, satisfactory to such
Underwriters' Counsel, together with signed or reproduced copies of such opinion
for each of the other Underwriters, to the effect that:
(i) The Company is a company duly incorporated with limited
liability under the International Business Companies Act and validly
existing in good standing under the laws of the British Virgin Islands.
It is a separate legal entity and is subject to suit in its own name.
Each BVI Principal Subsidiary (as defined below) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation. Each BVI Principal
Subsidiary has the requisite corporate power to own, lease and license
its respective properties and to conduct its business as now being
conducted. All the issued and outstanding capital stock of each BVI
Principal Subsidiary of the Company has been duly and validly issued
and is fully paid and nonassessable and was not issued in violation of
any preemptive rights. Based upon such counsel's review of the Register
of Members of such companies provided by their Registered Agents in the
BVI, the issued and outstanding capital
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<PAGE> 16
stock of each BVI Principal Subsidiary is owned directly or indirectly
by the Company or another subsidiary of the Company, and to such
counsel's knowledge, is free and clear of liens, encumbrances, claims,
security interests or other restrictions on transfer, except for the
pledge of shares of the BVI Principal Subsidiaries to a lender of a
principal subsidiary of the Company as previously disclosed to you in
writing by the Company. As used in said opinion, the term "BVI
Principal Subsidiary" shall mean Thomas International Freight Auditors
Ltd., a British Virgin Islands Company, Union-Transport Networks Inc.,
a British Virgin Islands Company, Union-Transport International Inc., a
British Virgin Islands Company, and Goddard Company Ltd., a British
Virgin Islands corporation.
(ii) The Company has the corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the Agreement;
(iii) The Company has the corporate power and authority to
conduct its business as described in the Registration Statement, and
the conduct of such business does not and will not conflict with or
result in a default, breach or violation of or under:
(A) any law of the British Virgin Islands; or
(B) its Memorandum and Articles of Association;
(iv) This Agreement has been duly authorised, executed and
delivered for and on behalf of the Company;
(v) No consents or authorisations of any government or official
authorities of or in the British Virgin Islands are necessary for the
entry into and performance by the Company of and the exercise of its
rights and the performance of its obligations pursuant to the
Agreement, including, without limitation, the issuance and sale of the
Shares and the Additional Shares;
(vi) The execution and delivery of this Agreement by the Company
and the performance of its obligations and the exercise of any of its
rights under this Agreement or the consummation of the transactions
contemplated in the Registration Statement (including the issuance and
sale of the Shares and the Additional Shares and the use of the
proceeds from the sale of the Shares and the Additional Shares as
described in the Prospectus under the caption "Use of Proceeds") and
compliance by the Company with its obligations under this Agreement
does not and will not conflict with or result in a default, breach or
violation of or under:
(A) any law of the British Virgin Islands; or
(B) the Memorandum and Articles of Association of the Company.
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<PAGE> 17
(vii) All of the outstanding Ordinary Shares are duly and
validly authorized and issued, are fully paid and non-assessable and
were not issued in violation of or subject to any preemptive rights and
no holder thereof is or will be subject to personal liability by reason
of being such holder. The Company has taken all corporate action
required to authorise its execution, delivery and performance of this
Agreement and the Shares and the Additional Shares have been duly
authorised for issue and sale to the Underwriters by the Company
pursuant to the Directors' Resolutions and this Agreement and, when
issued, sold, delivered and paid for in accordance with this Agreement
and the Company's Memorandum and Articles, the Shares and the
Additional Shares will be legally issued, fully paid and non-assessable
and will not be issued in violation of or subject to any preemptive
rights and no holder of the Shares and the Additional Shares is or will
be subject to personal liability by reason of being such a holder;
(viii) On the basis of a Director's Certificate, neither the
Company nor any of its subsidiaries are in violation of their charter
or by-laws and no default by the Company or any of its subsidiaries
exist in the due performance or observation of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement;
(ix) On the basis of the Memorandum and Articles referred to
above and searches of the British Virgin Islands Companies Registry
made by such counsel, the Company is authorised to issue [600,000,000]
shares of no par value divided into three classes of one series each as
follows:
(A) [500,000,000] Ordinary Shares of no par value each;
(B) [50,000,000] Class A Preference Shares of no par value each; and
(C) [50,000,000] Class B Preference Shares of no par value each.
The respective rights, privileges and preferences of the Ordinary
Shares and the Class A and Class B Preference Shares are as stated in
the Company's Memorandum of Association and as described in the
Prospectus; on the basis of a Director's certificate and a registered
agent's certificate, the outstanding capital of the Company is as set
forth in the Prospectus under the caption "Capitalization;"
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<PAGE> 18
(x) Any final and conclusive monetary judgment for a definite
sum obtained against the Company in the State of New York in respect of
this Agreement would be treated by the courts of the British Virgin
Islands as a cause of action in itself so that no retrial of the issues
would be necessary provided that:
(A) the Courts of the State of New York had jurisdiction in the
matter and the Company either submitted to such jurisdiction or was
resident or carrying on business within such jurisdiction and was duly
served with process;
(B) the judgment given by the Courts of the State of New York was
not in respect of penalties, taxes, fines or similar fiscal or revenue
obligations of the Company;
(C) in obtaining judgment there was no fraud on the part of the
person in whose favour judgment was given or on the part of the Courts
of the State of New York; and
(D) recognition or enforcement of the judgment was not contrary to
natural justice;
(xi) The choice of the law of the State of New York as the
proper law of this Agreement would be upheld as a valid choice of law
by the courts of the British Virgin Islands and applied by such courts
in proceedings in relation to this Agreement as the proper law thereof
and the submission by the Company to the jurisdiction of the courts of
the State of New York and the nomination by the Company of an agent in
the State of New York to accept service of process in respect of
proceedings before such courts is valid;
(xii) It is not necessary in order to ensure the legality,
validity, enforceability or admissibility in evidence in proceedings of
the obligations of the Company under this Agreement that it or any
other document be notarized, filed, registered or recorded in the
British Virgin Islands;
(xiii) No court proceedings pending against the Company are
revealed from such counsel's searches of the British Virgin Islands
High Court Registry;
(xiv) On the basis of such counsel's searches of the British
Virgin Islands Companies Registry and the British Virgin Islands High
Court Registry, no currently valid order or resolution for winding up
of the Company and no current notice of appointment of a receiver over
the Company or any of its assets appears on the records maintained in
respect of the Company at the Companies Registry, but such counsel may
note that it is not a requirement that notice of appointment of a
receiver be registered with the Registrar of Companies or any other
public body in the British Virgin Islands.
(xv) Service of process in the British Virgin Islands on the
Company may be effected by leaving at the Registered Office of the
Company the relevant document to be served. On the basis of such
counsel's search of the
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<PAGE> 19
British Virgin Islands Companies Registry the registered office of the
Company is 9 Columbus Centre, Pelican Drive, Road Town, Tortola,
British Virgin Islands.
(xvi) The Company has the power to submit, and has taken all
necessary corporate action to submit, to the jurisdiction of any United
States federal district court or State court in the State of New York,
County of New York, and to appoint CT Corporation System as the
authorized agent of the Company for the purpose described in Section 15
of this Agreement;
(xvii) The Underwriters have standing to bring an action or
proceedings before the appropriate courts in the British Virgin Islands
for the enforcement of this Agreement. It is not necessary or advisable
in order for the Underwriters to enforce their rights under this
Agreement, including the exercise of remedies thereunder, that it be
licensed, qualified or otherwise entitled to carry on business in the
British Virgin Islands;
(xviii) There is no income or other tax of the British Virgin
Islands imposed by withholding or otherwise on any payment to be made
to or by the Company pursuant to this Agreement or the issue or
transfer of the Shares or the Additional Shares by the Company, the
delivery of the Shares or the Additional Shares to the Underwriters in
the manner contemplated in this Agreement or the sale and transfer of
the Shares or the Additional Shares;
(xix) This Agreement will not be subject to ad valorem stamp
duty in the British Virgin Islands and no registration, documentary,
recording, transfer or other similar tax, fee or charge is payable in
the British Virgin Islands in connection with the execution, delivery,
filing, registration or performance of this Agreement;
(xx) The Company is not entitled to any immunity under the laws
of the British Virgin Islands, whether characterised as sovereign
immunity or otherwise, from any legal proceedings to enforce this
Agreement in respect of itself or its property;
(xxi) The statements in the Prospectus under the captions (a)
"Risk Factors - United States judgments may not be fully enforceable
against us" and "Shareholder Rights under the laws of the British
Virgin Islands differ from those in other jurisdictions", insofar as
they describe certain provisions of the laws of the British Virgin
Islands, (b) "Description of Capital Stock" insofar as they describe
certain provision of the Memorandum and Articles of Association
relating to the share capital of the Company and the International
Business Companies Act (Cap 291) and (c) "British Virgin Islands
Taxation", insofar as they constitute a summary of matters of British
Virgin Islands tax law, constitute accurate summaries thereof in all
material respects.
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<PAGE> 20
(d) At the Closing Date, you shall have received the opinions, dated
as the Closing Date, of foreign counsel for the Company, addressed to the
Underwriters, satisfactory to such Underwriters' Counsel, together with
reproduced copies of such opinions for each of the other Underwriters concerning
each Foreign Principal Subsidiary (as defined below), to the effect that:
(i) If such Foreign Principal Subsidiary is established as a
private limited liability company in a civil law jurisdiction, that
such Foreign Principal Subsidiary has been duly established and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of establishment and has all requisite corporate
authority to own, lease and license its respective properties and to
conduct its business as now being conducted. All issued and outstanding
quotas (equivalent to shares or stock) have been duly and validly
issued and are fully paid and nonassessable and have not been issued in
violation of preemptive rights and according to the statutes or
constitutive documents of such Foreign Principal Subsidiary and to the
knowledge of such counsel, is owned directly or indirectly by the
Company or another subsidiary of the Company, free and clear of any
lien, encumbrance, claim, security interest, restriction on transfer,
shareholders' agreement, voting trusts or other defective title
whatsoever except for, and to the extent of, the pledge of quotas (or
shares) to the Lender to the Company as previously disclosed to you in
writing by the Company.
(ii) If such Foreign Principal Subsidiary has been incorporated
under the laws of the United Kingdom, such Foreign Principal Subsidiary
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation and
has all requisite corporate authority to own, lease and license its
respective properties and to conduct its business as now being
conducted. All issued and outstanding shares (or stock) have been duly
and validly issued and are fully paid and nonassessable and were not
issued in violation of preemptive rights and according to the share
register (stock ledgers) of such company and to the knowledge of such
counsel, is owned directly or indirectly by the Company or another
subsidiary of the Company, free and clear of any lien, encumbrance,
claim, security interest, restriction on transfer, shareholders'
agreement, voting trusts or other defective title whatsoever except for
the pledge of shares to the Lender to the Company as previously
disclosed to you in writing by the Company.
(iii) If such Foreign Principal Subsidiary is organized as a
joint stock corporation or public company in a civil law country, such
Foreign Principal Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation. Such Foreign Principal Subsidiary has
the requisite corporate power and corporate authority to own, lease and
license its respective properties and to conduct its business as now
being conducted. All the issued and outstanding capital stock of such
Foreign Principal Subsidiary has been duly and validly issued and is
fully paid and nonassessable and was not issued in violation of any
preemptive rights. Based upon such counsel's review of the stock
ledgers of such company, the issued and outstanding capital stock of
such Foreign Principal Subsidiary is owned directly or indirectly by
the Company or another subsidiary of the
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<PAGE> 21
Company, and, to such counsel's knowledge, is free and clear of liens,
encumbrances, claims, security interests or other restrictions on
transfer, except for the pledge of shares of such Foreign Principal
Subsidiaries to a lender of a subsidiary as previously disclosed to you
in writing by the Company.
(iv) As used above, the term "Foreign Principal Subsidiary"
shall mean one of the following: Union-Transport N.V., a Belgian
corporation, Union-Transport GmbH, a German corporation, Pyramid
Freight (Proprietary) Ltd., a Liechtenstein corporation, Union Air
Transport (Netherlands Antilles) N.V., a Netherlands Antilles
corporation, Union Air Transport (Netherlands Antilles), a Netherlands
Antilles corporation, Union Air Transport Ltd., a United Kingdom
corporation and Union-Transport (UK) Holdings Ltd., a United Kingdom
corporation.
(e) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to you and to Underwriters' Counsel, and the Underwriters
shall have received from said Underwriters' Counsel a favorable opinion, dated
as of the Closing Date with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related matters as you
may reasonably require, and the Company shall have furnished to Underwriters'
Counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(f) At the Closing Date, you shall have received a certificate of
the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date, to the effect that (i) the condition set forth in subsection
(a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of
the Closing Date, the representations and warranties of the Company set forth in
Section 1 hereof are accurate, (iii) as of the Closing Date, the obligations of
the Company to be performed hereunder on or prior thereto have been duly
performed and (iv) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Company and its
subsidiaries have not sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, and there has not been any material
adverse change, or any development involving a material adverse change, in the
business, prospects, properties, operations, condition (financial or otherwise),
or results of operations of the Company and its subsidiaries taken as a whole,
except in each case as described in or contemplated by the Prospectus.
(g) At the time this Agreement is executed and at the Closing Date,
you shall have received a letter, from Deloitte & Touche, independent public
accountants for the Company, dated, respectively, as of the date of this
Agreement and as of the Closing Date addressed to the Underwriters and in form
and substance satisfactory to you, to the effect that: (i) they are independent
certified public accountants with respect to the Company within the meaning of
the Act and the Regulations; (ii) in their opinion, the financial statements and
financial statement schedules of the Company included in the
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Registration Statement and the Prospectus and covered by their opinion therein
comply as to form in all material respects with the applicable accounting
requirements of the Act and the applicable published rules and regulations of
the Commission thereunder; (iii) on the basis of the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial Information,
performed on the unaudited interim consolidated financial statements of the
Company and its subsidiaries included in the Registration Statement, a reading
of the minutes of meetings and consents of the shareholders and boards of
directors of the Company and its subsidiaries and the committees of such boards
subsequent to January 31, 2000, inquiries of officers and other employees of the
Company and its subsidiaries who have responsibility for financial and
accounting matters of the Company and its subsidiaries with respect to
transactions and events subsequent to January 31, 2000 and other specified
procedures and inquiries to a date not more than five days prior to the date of
such letter, nothing has come to their attention that would cause them to
believe that: (A) any material modifications should be made to the unaudited
interim consolidated financial statements of the Company and its subsidiaries
included in the Registration Statement for them to be in conformity with
International Accounting Standards, (B) the unaudited interim consolidated
financial statements of the Company presented in the Registration Statement and
the Prospectus, if any, do not comply as to form in all material respects with
the applicable accounting requirements of the Act and, if applicable, the
Exchange Act and the applicable published rules and regulations of the
Commission thereunder or that such unaudited interim consolidated financial
statements are not fairly presented in conformity with international accounting
standards applied on a basis substantially consistent with that of the audited
consolidated financial statements included in the Registration Statement and the
Prospectus; (C) with respect to the period subsequent to ___________, 2000,
there were, as of the date of the most recent available monthly consolidated
financial statements of the Company and its subsidiaries, if any, and as of a
specified date not more than five days prior to the date of such letter, any
changes in the issued capital or long-term borrowings of the Company or any
decrease in the net current assets or shareholders' equity of the Company, in
each case as compared with the amounts shown in the most recent balance sheet
presented in the Registration Statement and the Prospectus, except for changes
or decreases which the Registration Statement and the Prospectus disclose have
occurred or may occur or which are set forth in such letter or (D) that during
the period from ___________, 2000, to the date of the most recent available
monthly consolidated financial statements of the Company and its subsidiaries,
if any, and to a specified date not more than five days prior to the date of
such letter, there was any decrease, as compared with the corresponding period
in the prior fiscal year, in total gross revenues, or, net income or diluted
earnings per Ordinary Share net income, except for decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur or
which are set forth in such letter; and (iv) stating that they have compared
specific dollar amounts, numbers of shares, percentages of revenues and
earnings, and other financial information pertaining to the
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Company and its subsidiaries set forth in the Registration Statement and the
Prospectus, which have been specified by you prior to the date of this
Agreement, to the extent that such amounts, numbers, percentages, and
information may be derived from the general accounting and financial records of
the Company and its subsidiaries or from schedules furnished by the Company, and
excluding any questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings, inquiries, and
other appropriate procedures specified by you set forth in such letter, and
found them to be in agreement.
(h) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may reasonably
request.
(i) You shall have received from each person who is a director or
executive officer of the Company and such shareholders as have been heretofore
designated by you and listed on Schedule II hereto an agreement (in
substantially the form heretofore furnished to you by the Company) to the effect
that such person will not, directly or indirectly, without your prior written
consent, offer, sell, offer or agree to sell, grant any option to purchase or
otherwise dispose (or announce any offer, sale, grant of an option to purchase
or other disposition) of any shares of Common Stock (or any securities
convertible into, exercisable for or exchangeable or exercisable for shares of
Common Stock) for a period of 180 days after the date of the Prospectus (except
as otherwise provided in Schedule II).
(j) At the Closing Date, the Shares shall have been approved for
quotation on the NASDAQ National Market and you shall have received evidence
satisfactory to you that the delisting of the Ordinary Shares from trading on
the Luxembourg Stock Exchange became effective at or prior to the date of this
Agreement.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
cancelled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company in writing, or by
telephone, telex or telegraph, confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of
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<PAGE> 24
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the Shares,
as originally filed or any amendment thereof, or any related preliminary
prospectus or the Prospectus, or in any supplement thereto or amendment thereof,
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; provided, however, that the Company will not
be liable in any such case to the extent but only to the extent that any such
loss, liability, claim, damage or expense arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein; and provided, further, that this indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
liabilities, claims, damages or expenses purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any such amendments or
supplements thereto, but excluding documents incorporated or deemed to be
incorporated by reference therein) was not sent or given by or on behalf of such
Underwriter to such person, if such is required by law, at or prior to the
written confirmation of the sale of such Shares to such person and if the
Prospectus (as so amended or supplemented, but excluding documents incorporated
or deemed to be incorporated by reference therein) would have corrected the
defect giving rise to such loss, liability, claim, damage or expense, it being
understood that this proviso shall have no application if such defect shall have
been corrected in a document which is incorporated or deemed to be incorporated
by reference in the Prospectus. This indemnity agreement will be in addition to
any liability which the Company may otherwise have including under this
Agreement.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), jointly or several, to which they or any of them
may become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written
24
<PAGE> 25
information furnished to the Company by or on behalf of any Underwriter through
you expressly for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and in the third and tenth paragraphs under the caption "Underwriting" in
the Prospectus constitute the only information furnished in writing by or on
behalf of any Underwriter expressly for use in the registration statement
relating to the Shares as originally filed or in any amendment thereof, any
related preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) 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 each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses
25
<PAGE> 26
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting in the case of
losses, claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, officers of the Company who signed the Registration Statement and
directors of the Company) as incurred to which the Company and one or more of
the Underwriters may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Company and the Underwriters from
the offering of the Shares or, if such allocation is not permitted by applicable
law or indemnification is not available as a result of the indemnifying party
not having received notice as provided in Section 7 hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of the Company and the Underwriters in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and (y) the underwriting discounts and commissions
received by the Underwriters, respectively, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company and
of the Underwriters 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 Underwriters 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 contribution pursuant to this Section 8 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. Notwithstanding the
provisions of this Section 8, (i) in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder, and (ii) 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. Notwithstanding the provisions of this Section 8
and the preceding sentence, 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 that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case
26
<PAGE> 27
to clauses (i) and (ii) of this Section 8. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if the
Firm Shares or Additional Shares with respect to which such default relates do
not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares
or Additional Shares, then such Firm Shares or Additional Shares to which the
default relates shall be purchased by the non-defaulting Underwriters in
proportion to the respective proportions which the numbers of Firm Shares set
forth opposite their respective names in Schedule I hereto bear to the aggregate
number of Firm Shares set forth opposite the names of the non-defaulting
Underwriters.
(b) In the event that such default relates to more than 10% of the
Firm Shares or Additional Shares, as the case may be, you may in your discretion
arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within 5 calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement (or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares) shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Sections 5, 7(a) and 8 hereof) or the Underwriters, but nothing
in this Agreement shall relieve a defaulting Underwriter or Underwriters of its
or their liability, if any, to the other Underwriters and the Company for
damages occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which
the default relates are to be purchased by the non-defaulting Underwriters, or
are to be purchased by another party or parties as aforesaid, you or the Company
shall have the right to postpone the Closing Date or Additional Closing Date, as
the case may be for a period, not exceeding five business days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of
27
<PAGE> 28
Underwriters' Counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 9 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement, including the agreements contained in Section 5,
the indemnity agreements contained in Section 7 and the contribution agreements
contained in Section 8, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8, 11(d) and 15 hereof shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective, upon the later of when
(i) you and the Company shall have received notification of the effectiveness of
the Registration Statement or (ii) the execution of this Agreement. If either
the initial public offering price or the purchase price per Share has not been
agreed upon prior to 5:00 P.M., New York time, on the fifth full business day
after the Registration Statement shall have become effective, this Agreement
shall thereupon terminate without liability to the Company or the Underwriters
except as herein expressly provided. Until this Agreement becomes effective as
aforesaid, it may be terminated by the Company by notifying you or by you
notifying the Company. Notwithstanding the foregoing, the provisions of this
Section 11 and of Sections 1, 5, 7 and 15 hereof shall at all times be in full
force and effect.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (A) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market, as the case may be, shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ National Market
by the New York Stock Exchange, the American Stock Exchange or the NASDAQ
National Market, as the case may be, or by order of the Commission or any other
governmental authority having jurisdiction; or (C) if a banking moratorium has
been declared by a state or federal authority or if any new restriction
materially adversely affecting the distribution of the Firm Shares or the
Additional Shares, as the case may be, shall have become effective; or (D) (i)
if the United States becomes engaged in hostilities
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<PAGE> 29
or there is an escalation of hostilities involving the United States or there is
a declaration of a national emergency or war by the United States or (ii) if
there shall have been such change in political, financial or economic conditions
if the effect of any such event in (i) or (ii) as in your judgment makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Additional Shares, as the case may be, on the terms
contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be
by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to Section 9(b) hereof), or if the
sale of the Shares provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth herein is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, the Company
will, subject to demand by you, reimburse the Underwriters for all out-of-pocket
expenses (including the reasonable fees and expenses of their counsel), incurred
by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and , if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, Stearns & Co. Inc., 245 Park Avenue,
New York, N.Y. 10167, Attention: Alex Sheers; if sent to the Company, shall be
mailed, delivered, or telegraphed and confirmed in writing to the Company, c/o
Union-Transport Corporation, 19443 Laurel Park Road, Suite 107, Rancho
Dominguez, CA 90220, Attention: Chief Executive Officer, with a copy to Paul,
Hasting, Janofsky & Walker LLP, 17th Floor, 695 Town Center Drive, Costa Mesa,
California 92626-1924, attention: Stephen D. Cooke.
13. Parties. This Agreement shall insure solely to the benefit of, and
shall be binding upon, the Underwriters and the Company and the controlling
persons, directors, officers, employees and agents referred to in Section 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
15. Appointment of Agent for Service. The Company, by the execution and
delivery of this Agreement, agrees that service of process may be made upon it
at the principal office of CT Corporation System in New York City in any suit or
proceeding against the Company instituted by any Underwriter or by any person
controlling any Underwriter based on or arising under this Agreement in any
United
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<PAGE> 30
States Federal District Court or State court in the State of New York, County of
New York and expressly accepts the nonexclusive jurisdiction of any such court
in respect of any such suit or proceeding. The Company further, by the execution
and delivery of this Agreement, irrevocably designates and appoints CT
Corporation System in the County, City and State of New York, United States of
America, as the authorized agent of the Company upon whom process may be served
in any such suit or proceeding, it being understood that the designation and
appointment of CT Corporation System as such authorized agent shall become
effective immediately without any further action on the part of the Company. The
Company represents to each Underwriter that it has notified CT Corporation
System of such designation and appointment and that CT Corporation System has
accepted the same in writing. The Company further agrees that, to the extent
permitted by law, service of process upon CT Corporation and written notice of
said service to the Company mailed by first class airmail or delivered to it at
the address specified in Section 12 shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. The Company
further agrees to take any and all action, including the execution and filing of
all such instruments and documents, as may be necessary to continue such
designation and appointment in full force and effect for five years from the
Closing Time.
If the foregoing correctly sets forth the understanding between you and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
UTi WORLDWIDE INC.
By:
-------------------------------
Chief Executive Officer
Accepted as of the date first above written
BEAR, STEARNS & CO. INC.
LAZARD FRERES & CO. LLC
BB&T CAPITAL MARKETS/SCOTT & STRINGFELLOW, INC.
By
-------------------------------------
Bear, Stearns & Co. Inc.
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
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<PAGE> 31
SCHEDULE I
<TABLE>
<CAPTION>
Number of Additional Shares
Number of Firm Shares to be Purchased if Maximum
Name of Underwriter to be Purchased Option Exercised
---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Bear, Stearns & Co. Inc.
Lazard Freres & Co. LLC
BB&T Capital Markets/Scott & Stringfellow, Inc.
Total
============ =============
</TABLE>
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<PAGE> 32
SCHEDULE II
Names of shareholders subject to lock-up provision
--------------------------------------------------
* Notwithstanding the provisions of the Underwriting Agreement, such
shareholder's lock-up agreement shall provide that it may engage in any of the
specified dipositions with respect to up to 50% of its shares after 60 days
following the date of the prospectus, with the remaining 50% of its shares
being subject to the 180-day lock-up period.
32
