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Exhibit 1.1
S&C Draft of December 1, 2000
W.P. STEWART & CO., LTD.
COMMON SHARES
(PAR VALUE $0.001 PER SHARE)
UNDERWRITING AGREEMENT
(U.S. VERSION)
December __, 2000
Goldman, Sachs & Co.,
Lazard Freres & Co. LLC,
Bear, Stearns & Co., Inc.,
Salomon Smith Barney Inc.,
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Certain shareholders named in Schedule II hereto (the "Selling
Shareholders") of W.P. Stewart & Co., Ltd., a Bermuda corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 8,963,212 shares (the "Firm Shares") and WPS II, Inc., a Delaware corporation
("WPS II"), one of the Selling Shareholders, at the election of the
Underwriters, to sell up to 1,344,482 additional shares (the "Optional Shares"),
par value $0.001 per share ("Stock"), of the Company (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares").
It is understood by all the parties that the Company and the Selling
Shareholders are concurrently entering into an agreement (the "International
Underwriting Agreement") providing for the sale by the Selling Shareholders of
up to a total of 2,576,923 shares of Stock (the "International Shares"),
including the overallotment option thereunder, through arrangements with certain
underwriters outside the United States (the "International Underwriters"), for
whom Goldman Sachs International, Lazard Capital Markets, Bear, Stearns
International Limited and Salomon Brothers International Limited are acting as
lead managers outside the United States. Anything herein or
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therein to the contrary notwithstanding, the respective closings under this
Agreement and the International Underwriting Agreement are hereby made expressly
conditional on one another.
The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement between U.S. and International
Underwriting Syndicates (the "Agreement between Syndicates"), which provides,
among other things, for the transfer of shares of Stock between the two
syndicates.
Two forms of prospectus are to be used in connection with the offering
and sale of shares of Stock contemplated by the foregoing, one relating to the
Shares hereunder and the other relating to the International Shares. The
international form of prospectus will be identical to the U.S. prospectus except
for certain substitute pages. Except as used in Sections 2, 3, 4, 9 and 11
herein, and except as the context may otherwise require, references hereinafter
to the Shares shall include all of the shares of Stock which may be sold
pursuant to either this Agreement or the International Underwriting Agreement.
References herein to any prospectus whether in preliminary or final form, and
whether as amended or supplemented, shall include both the U.S. and the
international versions thereof.
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(i) A registration statement on Form F-1 (File No. 333-49420)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became or hereafter becomes effective upon filing,
no other document with respect to the Initial Registration Statement
has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or to the knowledge of the Company threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; and such final prospectus, in the form first filed pursuant
to Rule 424(b) under the Act, is hereinafter called the "Prospectus");
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(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through Goldman, Sachs & Co. expressly for use
therein or by or on behalf of a Selling Shareholder expressly for use
in the preparation of the answers therein to Item 7 of Form F-1;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any post-effective amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein or
by or on behalf of a Selling Shareholder expressly for use in the
preparation of the answers therein to Item 7 of Form F-1;
(iv) Neither the Company nor any of its subsidiaries listed on
Schedule III to this Agreement (each a "Material Subsidiary") has
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus, except for losses or interferences that would not,
individually or in the aggregate, have a material adverse effect on the
general affairs, management, consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole (hereinafter, a "Material Adverse
Effect"), and, since the most recent dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or increase in long-term debt of,
or material adverse change in assets under management by, the Company
or any of its Material Subsidiaries or any change that, individually or
in the aggregate, would have a Material Adverse Effect, or any
development involving a prospective change that, individually or in the
aggregate, would have a Material Adverse Effect, otherwise than as set
forth or contemplated in the Prospectus;
(v) Neither the Company nor any of its subsidiaries owns any
real property; the Company is a shareholder in Kirk Management Ltd., a
Bermuda joint venture corporation, which owns the Company's
headquarters and executive offices in Hamilton, Bermuda and leases
office space to the Company, and Kirk Management Ltd. has good and
marketable
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title in fee simple to such property and the Company's shareholder
interest in Kirk Management Ltd. is free and clear of all liens,
encumbrances and defects except as such are described in the Prospectus
or such as do not materially affect the value of such ownership
interest and do not materially interfere with the use made or proposed
to be made of such property by the Company or its Material
Subsidiaries; the Company and its Material Subsidiaries have good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as would not,
individually or in the aggregate, have a Material Adverse Effect;
(vi) The Company and each Material Subsidiary registered in
Bermuda has been duly incorporated and is validly existing as an
exempted company in good standing (meaning solely that the Company or
such subsidiary has not failed to make any filing with any Bermuda
governmental authority or agency or to pay any Bermuda government or
agency fee or tax which would make it liable to be struck off the
Bermuda Register of Companies and thereby cease to exist under the laws
of Bermuda) under the laws of Bermuda, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
each Material Subsidiary of the Company not registered in Bermuda has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(vii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description of the Stock contained in
the Prospectus; and all of the issued shares of each subsidiary of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and, except as described in the prospectus, are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; the holders of outstanding
shares of the Company are not entitled to preemptive or other rights to
acquire the Shares pursuant to the Memorandum of Association or
Bye-Laws of the Company or any contractual arrangement with the Company
or applicable law; there are no outstanding securities convertible into
or exchangeable for, or warrants, rights or options to purchase from
the Company, or obligations of the Company to issue, the Stock or any
other class of shares of the Company and there are no restrictions on
subsequent transfers of the Shares under the laws of Bermuda and of the
United States except, in each case, as described in the
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Prospectus, including under "Description of Capital Stock" and except
for the permission of the Bermuda Monetary Authority, which has been
obtained;
(viii) All dividends and other distributions declared and
payable on the shares of the Company may under the current laws and
regulations of Bermuda be paid in any currency other than Bermuda
dollars, and such foreign currency may in either case be freely
transferred out of Bermuda, and all such dividends and other
distributions will not be subject to withholding or other taxes under
the laws and regulations of Bermuda and are otherwise free and clear of
any other tax, withholding or deduction in Bermuda and without the
necessity of obtaining any consent, approval, authorization, order,
registration, clearance or qualification of or with any court or
governmental agency or body or any stock exchange authority
(hereinafter referred to as a "Governmental Agency") having
jurisdiction over the Company or any of its subsidiaries or any of
their properties (hereinafter referred to as "Governmental
Authorizations" );
(ix) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and the International Underwriting Agreement and to
consummate the transactions contemplated hereby and thereby and to
comply with the terms hereof and thereof;
(x) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by the
Company; the Indemnity Agreement, dated as of the date hereof (the
"Indemnity Agreement"), among WPS II, the Guarantors (as defined
therein) and the Company, has been duly authorized, executed and
delivered by, and constitutes a valid and legally binding agreement of,
the Company, and is enforceable against the Company in accordance with
its terms, subject, as to enforceability, to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(xi) The compliance by the Company and any of the Selling
Shareholders with all of the provisions of this Agreement, the
International Underwriting Agreement and the Indemnity Agreement and
the consummation of the transactions herein and therein contemplated by
the Company and any of the Selling Shareholders will not conflict with
or result in a breach or violation of (A) any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, or (B) any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over the Company or any of its
subsidiaries or any of their properties, including the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), and the
Investment Company Act of 1940, as amended (the "Investment Company
Act"), except, in each case, which conflict, breach, default or
violation would not, individually or in the aggregate, have a Material
Adverse Effect and would not impair the Company's ability to perform
its obligations hereunder or under the International Underwriting
Agreement or the Indemnity Agreement, nor will such action result in
any violation of the provisions of the Memorandum of Association or
Bye-laws or other organizational documents, as the case may be, of the
Company or any of its subsidiaries, and no consent, approval,
authorization, order, registration or qualification of or with any
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Governmental Agency having jurisdiction over the Company or any of its
subsidiaries or any of their properties is required for the sale of the
Shares or the consummation by the Company or any of its subsidiaries of
the transactions contemplated by this Agreement, the International
Underwriting Agreement and the Indemnity Agreement, except (A) the
registration under the Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act") of the Shares, (B) such Governmental
Authorizations as have been duly obtained and are in full force and
effect and copies of which have been furnished to you, (C) such
Governmental Authorizations as may be required under state securities
or Blue Sky laws or any laws of jurisdictions outside the United States
in connection with the purchase and distribution of the Shares by or
for the account of the International Underwriters, (D) such consents,
approvals or authorizations required by the New York Stock Exchange
(the "NYSE") and/or the Bermuda Stock Exchange (the "BSX") in
connection with the listing of the Shares, and (E) such consents,
approvals or authorizations required to be obtained from the Bermuda
Monetary Authority (the "BMA") for the transfer of the Shares for the
purposes of the transactions contemplated by this Agreement and the
International Underwriting Agreement and for free transferability of
the Shares subsequent to such sale;
(xii) (A) Each of the Company and its Material Subsidiaries
has all certificates, consents, registrations, exemptions, orders,
permits, licenses, qualifications, authorizations or other approvals
(each, an "Authorization") of and from, and has made all declarations
and filings with, all Federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, necessary or required to own or lease their properties and
to engage in the business currently conducted by it in the manner
described in the Prospectus; (B) all Authorizations referred to in
clause (A) of this paragraph are valid and in full force and effect;
and (C) each of the Company and its Material Subsidiaries is in
compliance with the terms and conditions of such Authorizations and
with the rules and regulations of the regulatory authorities and
governing bodies having jurisdiction with respect thereto, other than,
in the case of (A), (B) and (C), those Authorizations, the failure to
obtain or comply with would not, individually or in the aggregate, have
a Material Adverse Effect;
(xiii) The Company has been duly registered as an investment
adviser under the Advisers Act and, to the extent that such
registration is required, each of the Company's subsidiaries has been
duly registered as an investment adviser under the Advisers Act and, in
each case, such registration is in full force and effect; neither the
Company nor any of its subsidiaries is required to be registered as a
commodity trading adviser, commodity pool operator or futures
commission merchant under the Commodity Exchange Act, as amended (the
"CEA"); the Company is not required to be registered as a broker-dealer
under the Exchange Act, and each subsidiary that is required to be
registered as a broker-dealer under the Exchange Act has been duly
registered as such and, in each case, such registration is in full
force and effect; each of the Company and its subsidiaries that is
required to be registered, licensed or qualified as an investment
adviser, broker-dealer, commodity trading adviser, commodity pool
operator or futures commission merchant has been so registered,
licensed or qualified in each jurisdiction where the conduct of its
business requires such registration, license or qualification and each
such registration, license or qualification is in full force and
effect; each of the Company and any such subsidiary is in compliance
with all applicable laws requiring any such registration, licensing or
qualification; and neither the
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Company nor any of its subsidiaries is prohibited from carrying on its
business as described in the Prospectus by any applicable laws, rules,
regulations, orders, or similar requirements;
(xiv) Each fund that is sponsored by the Company or any of its
subsidiaries (each, a "Fund") and that is required to be registered
with the Commission as an investment company under the Investment
Company Act, or with any applicable foreign regulatory authority is so
duly registered with the Commission or the applicable foreign
regulatory authority;
(xv) Each of the investment advisory agreements and
distribution agreements to which the Company or any of its Material
Subsidiaries is a party has been duly authorized, executed and
delivered by, and constitutes a valid and legally binding agreement of,
the Company or such subsidiary, as the case may be, and, in the case of
any such agreement with a Fund, by and of such Fund, subject as to
enforceability against the Company, such subsidiary or such Fund, to
bankruptcy, insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; each such agreement complies with the applicable
requirements of the Advisers Act and, in the case of any such agreement
with a Fund, of the Investment Company Act; neither the Company nor any
of its Material Subsidiaries is in breach or violation of or in default
under any such agreement, except where such breach or violation would
not have a Material Adverse Effect; and neither the Company nor any of
its subsidiaries is acting as an investment adviser to any person
except pursuant to a written investment advisory agreement to which the
Company or such subsidiary, as applicable, is a party;
(xvi) Neither the Company nor any of its Material Subsidiaries
is in violation of its Memorandum of Association or Bye-Laws or other
organizational documents, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound except, in each
case other than with respect to such Memorandum of Association or
Bye-Laws or other organizational documents, which violations or
defaults would not, individually or in the aggregate, have a Material
Adverse Effect and would not impair the Company's ability to perform
its obligations hereunder or under the International Underwriting
Agreement;
(xvii) The consummation of the transactions contemplated by
this Agreement, the International Underwriting Agreement and the
Indemnity Agreement did not and will not constitute an "assignment", as
defined in the Advisers Act (and the rules and regulations thereunder)
or the Investment Company Act (and the rules and regulations
thereunder); nor will consummation of such transactions adversely
affect in any material respect the ability of the Company or any of its
subsidiaries to conduct their respective businesses in compliance with
applicable law as described in the Prospectus, including, but not
limited to, providing investment advisory services to clients and the
Funds;
(xviii) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable by
or on behalf of the Underwriters or the International Underwriters to
any Bermuda taxing authority in connection with (A) the sale and
delivery by the Selling Shareholders of the Shares to or for the
respective accounts of
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the Underwriters or the International Underwriters or (B) the sale and
delivery outside Bermuda by the Underwriters or the International
Underwriters of the Shares to the initial purchasers thereof;
(xix) Neither the Company nor any of its subsidiaries has
taken, directly or indirectly, any action which was designed to or
which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares;
(xx) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, and under the captions
"Risk Factors--Our U.S. Tax Status Could Be Challenged", "Corporate
History", "Business--Regulation", "Principal and Selling Shareholders",
"Certain Relationships and Related Transactions", "Certain Income Tax
Considerations", "Shares Eligible for Future Sale", "Certain Foreign
Issuer Considerations" , "Enforcement of Civil Liabilities" and
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein or
by or on behalf of a Selling Shareholder expressly for use in the
preparation of the answers therein to Item 7 of Form F-1;
(xxi) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect; and,
to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by any Governmental Agency or threatened by
others;
(xxii) The combined/consolidated historical financial
statements, including the notes thereto, included in the Registration
Statement and the Prospectus fairly present the financial position,
results of operations and changes in the combined/consolidated
financial position of the Company and its subsidiaries as of the
respective dates, or for the respective periods, indicated, all in
conformity with United States generally accepted accounting principles
consistently applied throughout such periods; the consolidated pro
forma financial statements, including the notes thereto, included in
the Registration Statement and the Prospectus have been prepared on a
basis consistent with such historical statements, except for the pro
forma adjustments specified therein, and fairly present the historical
and proposed transactions described in the Registration Statement and
the Prospectus or contemplated by this Agreement, the International
Underwriting Agreement and the Indemnity Agreement on the basis of
assumptions that, in the reasonable opinion of the Company, were
reasonable at the time such pro forma financial statements were
prepared; and all other historical and pro forma financial information
and other financial data included in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company
and its subsidiaries;
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(xxiii) The historical performance data for the Company set
forth in the Prospectus were calculated as described under the heading
"Business--Historical Performance Record" in the Prospectus; the data
on which such calculations were based was accurate and complete in all
material respects; and the Company maintains all accounts, books,
internal working papers, and any other records or documents that are
necessary to form the basis for or demonstrate the calculation of all
such historical performance data;
(xxiv) (A) The majority of the executive officers of the
Company are neither citizens nor residents of the United States; (B)
the majority of the directors of the Company are neither citizens nor
residents of the United States; (C) less than 50% of the Company's
assets are located in the United States; and (D) the business of the
Company is administered principally in Bermuda;
(xxv) All material tax returns required to be filed by the
Company or any of its Material Subsidiaries in any jurisdiction have
been timely and duly filed, other than those filings being contested in
good faith; there are no tax returns of the Company or any of its
subsidiaries that are currently being audited by state, local, Federal
or foreign taxing authorities or agencies (and with respect to which
the Company or any of its subsidiaries has received notice); and all
taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges which are known by the Company, or
which could have been known by the Company after reasonable
investigation, to be due or claimed to be due from such entities have
been paid, other than those being contested in good faith and for which
adequate reserves have been provided or those currently payable without
penalty or interest, and other than those that are not material;
(xxvi) The Company and its Material Subsidiaries maintain
insurance covering their respective properties, operations, personnel
and businesses that insures against such losses and risks as are
adequate in accordance with reasonable business judgment to protect the
Company and its Material Subsidiaries and their respective businesses;
and all such insurance is outstanding and duly in force on the date
hereof and to the best of the Company's knowledge will be outstanding
and duly in force at each Time of Delivery (as defined in Section 4
hereof);
(xxvii) Neither the Company nor its subsidiaries employs any
patents, patent rights, inventions, copyrights, or registered trade
names (collectively, "Intellectual Property") in connection with the
operation of the businesses now operated by it;
(xxviii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company",
as such term is defined in the Investment Company Act;
(xxix) Each of the Company and its Material Subsidiaries
maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets
is compared with
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the existing assets at reasonable intervals and appropriate action is
taken with respect thereto;
(xxx) The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the United States
Internal Revenue Code of 1986, as amended, and is not likely to become
a PFIC;
(xxxi) Each of PricewaterhouseCoopers LLP and Lopez Edwards
Frank & Co., LLP, who each have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder;
(xxxii) Schedule IV contains a complete listing of all
shareholders of the Company who (A) beneficially own 7,500 or more
shares of Stock or (B) are either officers or directors of the Company
or investment professionals employed by the Company (as such investment
professionals are listed in the Prospectus under the caption
"Business--Investment Management Team"); and
(xxxiii) The factual statements set forth in Annex IV are true
and complete.
(b) Each Selling Shareholder severally represents and warrants to, and
agrees with, each of the Underwriters and the Company that:
(i) If such Selling Shareholder is a corporation, trust,
partnership, limited liability company or similar entity, it has been
duly incorporated, established, formed or organized and is validly
existing as such entity in good standing, if applicable, under the laws
of the jurisdiction in which it has been established, formed or
organized with power and authority (corporate or other) to own its
properties and conduct its business, and has been duly qualified as a
foreign corporation or other entity for the transaction of business and
is in good standing, if applicable, under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(ii) If such Selling Shareholder is a corporation, trust,
partnership, limited liability company or similar entity, it has all
requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement, the International Underwriting
Agreement, the Indemnity Agreement (if it is a party thereto), the
Power of Attorney and the Custody Agreement and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Shareholder
hereunder and under the International Underwriting Agreement and to
consummate the transactions contemplated thereby and to comply with the
terms thereof; and the Indemnity Agreement (if it is a party thereto),
the Power of Attorney and the Custody Agreement have been duly
authorized, executed and delivered by, and constitute valid and legally
binding agreements of it and are enforceable against it in accordance
with their terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
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<PAGE> 11
(iii) The compliance by such Selling Shareholder with all of
the provisions of this Agreement, the International Underwriting
Agreement and the Indemnity Agreement (if it is a party thereto) and
the consummation of the transactions herein or therein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Shareholder is a party or by which such
Selling Shareholder is bound or to which any of the property or assets
of such Selling Shareholder is subject, except, in each case, which
conflict, breach, default or violation would not, individually or in
the aggregate, have a Material Adverse Effect and would not impair such
Selling Shareholder's or the Company's ability to perform their
respective obligations hereunder or under the International
Underwriting Agreement or have any adverse effect upon the consummation
of the transactions contemplated hereby or on any of the Underwriters,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-Laws, trust instrument or similar
organizational document of the Selling Shareholder, if any, or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Selling Shareholder or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body having jurisdiction over such Selling Shareholder or its
properties is required for the consummation by the Selling Shareholder
of the transactions contemplated by this Agreement, the International
Underwriting Agreement and the Indemnity Agreement (if it is a party
thereto), except (A) the registration under the Act and the Exchange
Act of the Shares, (B) such Governmental Authorizations as have been
duly obtained and are in full force and effect and copies of which have
been furnished to you (C) such Governmental Authorizations as may be
required under state securities or Blue Sky laws or any laws of
jurisdictions outside the United States in connection with the purchase
and distribution of the Shares by or for the account of the
International Underwriters, (D) such consents, approvals or
authorizations required by the NYSE and/or the BSX in connection with
the listing of the Shares, and (E) such consents, approvals or
authorizations required to be obtained from the BMA for the transfer of
the Shares for the purposes of the transactions contemplated by this
Agreement and the International Underwriting Agreement and for free
transferability of the Shares subsequent to such sale;
(iv) Such Selling Shareholder has, and immediately prior to
each Time of Delivery such Selling Shareholder will have, good and
valid title to the Shares to be sold at such Time of Delivery by such
Selling Shareholder hereunder and under the International Underwriting
Agreement, free and clear of all liens, encumbrances, equities or
claims; and upon the registration of such Shares in the name of Cede &
Co. or such other nominee as may be designated by The Depository Trust
Company ("DTC") or its agent, delivery of such Shares to DTC or its
custodian and payment therefor both as provided herein and in the
International Underwriting Agreement, and the crediting of such Shares
to the Underwriters' and the International Underwriters' accounts with
DTC, Cede & Co. or such other nominee as may be designated by DTC will
be the registered owner of such Shares under the laws of Bermuda, free
and clear of all liens, encumbrances, equities and claims, (other than
the interests of the Underwriters and the International Underwriters)
and a "protected purchaser" of such Shares (as defined in Section 8-303
of the Uniform Commercial Code as adopted in the State of New York (the
"UCC")), the Underwriters and the International
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<PAGE> 12
Underwriters will acquire a valid "security entitlement" (as defined in
Section 8-102 of the UCC) to such Shares, and no action based on an
"adverse claim" (as defined in Section 8-102 of the UCC) may be
asserted against the Underwriters or the International Underwriters
with respect to such security entitlement (assuming that, at the time
of such delivery and payment, the Underwriters and the International
Underwriters are without notice of any such adverse claim);
(v) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by or on
behalf of such Selling Shareholder;
(vi) Such Selling Shareholder has not taken and, for a period
of ninety (90) days following the First Time of Delivery, will not
take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares;
(vii) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Shareholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, when they became
effective or were filed with the Commission, as the case may be, and
the Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(viii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or
at the First Time of Delivery (as defined in Section 4) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof);
(ix) Such Selling Shareholder has duly executed and delivered,
under a Custody Agreement (the "Custody Agreement"), in the form
heretofore furnished to you, duly executed and delivered by such
Selling Shareholder to Equiserve Ltd. Partnership, as custodian (the
"Custodian"), a share transfer form relating to all of the Shares to be
sold by such Selling Shareholder hereunder and under the International
Underwriting Agreement, and such Selling Shareholder has duly executed
and delivered a Power of Attorney (the "Power of Attorney"), in the
form heretofore furnished to you, appointing the persons indicated in
Schedule II hereto, and each of them, as such Selling Shareholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute
and deliver this Agreement and the International Underwriting Agreement
on behalf of such Selling Shareholder, to determine the purchase price
to be paid by the Underwriters and the International Underwriters to
the Selling Shareholders as provided in Section 2 hereof, to
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<PAGE> 13
authorize the delivery of the Shares to be sold by such Selling
Shareholder hereunder and otherwise to act on behalf of such Selling
Shareholder in connection with the transactions contemplated by this
Agreement, the International Underwriting Agreement and the Custody
Agreement; and
(x) The Shares held in custody for such Selling Shareholder
under the Custody Agreement are subject to the interests of the
Underwriters hereunder and the International Underwriters under the
International Underwriting Agreement; the arrangements made by such
Selling Shareholder for such custody, and the appointment by such
Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney,
are to that extent irrevocable; the obligations of such Selling
Shareholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of any individual Selling
Shareholder or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such estate
or trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the occurrence of
any other event; if any individual Selling Shareholder or any such
executor or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should
occur, before the delivery of the Shares hereunder, the Shares shall be
delivered by or on behalf of the Selling Shareholders in accordance
with the terms and conditions of this Agreement, of the International
Underwriting Agreement and of the Custody Agreements; and actions taken
by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
2. Subject to the terms and conditions herein set forth, (a) each of
the Selling Shareholders agrees, severally and not jointly, to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Shareholders, at a purchase price
per Share of $...................., the number of Firm Shares (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Firm Shares to be sold by each of the Selling Shareholders
as set forth opposite their respective names in Schedule II hereto by a
fraction, the numerator of which is the aggregate number of Firm Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter
in Schedule I hereto and the denominator of which is the aggregate number of
Firm Shares to be purchased by all of the Underwriters from all of the Selling
Shareholders hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, WPS II agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from WPS II, at the
purchase price per share set forth in clause (a) of this Section 2, that portion
of the number of Optional Shares as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
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<PAGE> 14
WPS II hereby grants to the Underwriters the right to purchase at their
election up to 1,344,482 Optional Shares, at the purchase price per Share set
forth in the paragraph above, for the sole purpose of covering sales of Shares
in excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised by written notice from you to the Attorney-in-Fact of
WPS II, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery or,
unless you and the Attorney-in-Fact of WPS II otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
registered form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours'
notice to the Selling Shareholders prior to the Time of Delivery (as defined
below), shall be delivered by or on behalf of the Selling Shareholders to
Goldman, Sachs & Co., through the facilities of DTC for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the account
specified by the Company to Goldman, Sachs & Co. at least forty-eight hours in
advance. The Company and the Selling Shareholders will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of DTC or its designated custodian. No delivery or
transfer of Shares to be purchased hereunder at a Time of Delivery shall be
effective until payment of the purchase price for such Shares has been made in
accordance with the terms of this Agreement.
The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on ............., 2000 or
such other time and date as Goldman, Sachs & Co. and the Selling Shareholders
may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m.,
New York City time, on the date specified by Goldman, Sachs & Co. in the written
notice given by Goldman, Sachs & Co. of the Underwriters' election to purchase
such Optional Shares, or such other time and date as Goldman, Sachs & Co. and
the Selling Shareholders may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "First Time of Delivery", such
time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(t) hereof will be delivered at the offices of
Sullivan & Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing
Location"), and the Shares will be delivered as specified in paragraph (a)
above, all at such Time of Delivery. A meeting will be held at the Closing
Location at 2:00 p.m., New York City time, on the New York Business Day next
preceding each Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each
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<PAGE> 15
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you copies thereof; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to take any action which would subject the Company to
taxation or doing business in any jurisdiction;
(iii) Prior to 12:00 noon, New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with copies of the Prospectus in
New York City in such quantities as you may reasonably request, and, if
the delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the Act, to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any
15
<PAGE> 16
Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(iv) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(v) During the period beginning from the date hereof and
continuing to and including the date 540 days after the date of the
Prospectus, not to, directly or indirectly, offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder or under the
International Underwriting Agreement, any shares of Stock or any other
securities of the Company that are substantially similar to the Stock,
including but not limited to any securities that are convertible into
or exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities, or enter into any swap,
option, future, forward or other agreement that transfers, in whole or
in part, the economic consequence of ownership of Stock of any
securities substantially similar to the Stock (other than (i) in
connection with issuances or transfers of shares of Stock to directors
or employees of the Company and/or its affiliates consistent with the
Company's past practices, including without limitation, the vesting of
shares, (ii) in connection with a merger or acquisition by the Company,
including the acquisition of 50% of TPRs Services N.V. and TPR &
Partners N.V.), provided, that any and all shares of Stock transferred
or exchanged in such merger or acquisition remain subject to the same
selling restrictions as the Selling Shareholders are subject to
pursuant to Section 5(b)(i)), in each case, without the prior written
consent of the Representatives;
(vi) To furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, shareholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
first fiscal quarter for the fiscal year ending December 31, 2001), to
make available to its shareholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail;
(vii) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to shareholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with (A) the
Commission and (B) any securities exchange on which any class of
securities of the Company is listed (such financial statements to be on
a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission); and (ii) such additional information
concerning the business and financial condition of the Company as you
may from time to time reasonably
16
<PAGE> 17
request; provided, however, that in the cases of clauses (i)(B) and
(ii), you qualify as a person who owes a duty of trust or confidence to
the Company under Rule 100(b)(2)(i) of Regulation F-D;
(viii) For a period of ninety (90) days from the First Time of
Delivery, not to (and to cause its subsidiaries not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company or
facilitate the sale or resale of the Shares;
(ix) To use its best efforts to list the Shares on the NYSE
and, by way of secondary listing, on the BSX;
(x) To file with the Commission such information on Form 20-F,
if any, as may be required by Rule 463 under the Act; and
(xi) If the Company elects to rely upon Rule 462(b), to file a
Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 a.m., Washington, D.C. time, on the
Washington, D.C. Business Day next succeeding the date of this
Agreement, and at the time of filing to either pay to the Commission
the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act. For the purposes of this Agreement, "Washington,
D.C. Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which the Commission or banking
institutions in Washington, D.C. are generally authorized or obligated
by law or executive order to close.
(b) (i) Each of the Selling Shareholders listed in Schedule IV agrees
with each of the Underwriters, during the period beginning on the date hereof
and continuing to and including the date 540 days after the date of the
Prospectus, not to directly or indirectly, offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder or under the International
Underwriting Agreement, any shares of Stock or any other securities of the
Company that are substantially similar to the Stock, including but not limited
to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities, or enter into any swap, option, future, forward or other agreement
that transfers, in whole or in part, the economic consequence of ownership of
Stock or any securities substantially similar to the Stock (each a "Restricted
Transaction"), in each case without the prior written consent of the
Representatives other than transfers (A)(w) to its affiliates, shareholders,
members or partners, (x) to members of their immediate families for estate
planning purposes, (y) to trusts established for the benefit of members of their
immediate families for estate planning purposes or (z) pursuant to the laws of
descent and distribution, provided that in the case of (w), (x), (y) or (z)
above, the transferees of such Stock or other securities agree in writing to be
bound by the restrictions on transfer set forth in this subsection, (B) of
shares purchased by the Selling Shareholder in open market transactions after
the date hereof, and (C) to the Company; and
(ii) Each of the Selling Shareholders agrees with each of the
Underwriters, during a period of ninety (90) days from the First Time
of Delivery, not to (and to cause its affiliates not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which might reasonably be expected to cause or result in stabilization
or
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<PAGE> 18
manipulation of the price of any security of the Company or facilitate
the sale or resale of the Shares.
(c) WPS II agrees with each of the Underwriters that, for purposes of
this Agreement and the International Underwriting Agreement, during a period
beginning on the date hereof and continuing to and including the date three (3)
years after the date of the First Time of Delivery, it will continue to own
directly 7,000,000 shares of Stock of the Company (as adjusted for any stock
dividends, combinations, splits, recapitalizations and similar corporate actions
with respect to such shares), free and clear of all liens, encumbrances,
equities or claims (other than under this clause) and not to directly or
indirectly offer, sell, contract to sell, or otherwise dispose of (which term
shall include any distribution of shares of Stock of the Company upon
dissolution of WPS II to the Stockholders of WPS II) such Shares.
6. The Company and each of the Selling Shareholders, severally,
covenant and agree with one another and with the several Underwriters that (a)
the Selling Shareholders and the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the International Underwriting
Agreement, the Agreement between Syndicates, the Selling Agreement, the Blue Sky
Memorandum, closing documents (including compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iii) all expenses in connection with the qualification of the Shares
for offering and sale under state securities laws as provided in Section
5(a)(ii) hereof, including the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with
the Blue Sky surveys; (iv) all fees and expenses in connection with listing the
Shares on the NYSE and the BSX; (v) the filing fees incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with, securing any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Shares; (vi) the fees and expenses
of the Authorized Agent (as defined in Section 15 hereof); (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section; provided, however, that as
between the Company and the Selling Shareholders, each Selling Shareholder shall
bear its pro rata share of the first $2,000,000 of such costs and expenses and
the Company shall bear all expenses pursuant to this clause (a) exceeding
$2,000,000; and (b) each Selling Shareholder will pay or cause to be paid all
costs and expenses incident to the performance of such Selling Shareholder's
obligations hereunder which are not otherwise specifically provided for in this
Section, including (i) any fees and expenses of counsel for such Selling
Shareholder; (ii) such Selling Shareholder's pro rata share of the fees and
expenses of the Attorneys-in-Fact and the Custodian; and (iii) all expenses and
taxes incident to the sale and delivery of the Shares to be sold by such Selling
Shareholder to the Underwriters hereunder. In connection with clause (b)(iii) of
the preceding sentence, Goldman, Sachs & Co. agrees to pay New York State stock
transfer tax, and each Selling Shareholder agrees to reimburse Goldman, Sachs &
Co. for associated carrying costs if such tax payment is not rebated on the day
of payment and for any portion of such tax payment not rebated. It is
understood, however, that the Company shall bear, and the Selling Shareholders
shall not be required to pay or
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<PAGE> 19
to reimburse the Company for, the cost of any other matters not directly
relating to the sale and purchase of the Shares pursuant to this Agreement, and
that, except as provided in this Section, and Sections 8 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make (collectively,
"Underwriter Expenses").
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and the Selling Shareholders herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 a.m., Washington, D.C. time, on the
Washington, D.C. Business day next succeeding the date of this
Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Sullivan & Cromwell, United States counsel for the
Underwriters, shall have furnished to you their written opinion and
letter, dated such Time of Delivery, with respect to such matters as
you may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Dorsey & Whitney LLP, United States counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) W.P. Stewart & Co. Inc., a Delaware corporation
(the "U.S. Subsidiary") has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; the Company is the
sole registered owner of the number of shares of common stock
of the U.S. Subsidiary; and such shares of common stock have
been duly authorized and validly issued and are fully paid and
nonassessable;
(ii) Each of this Agreement, the International
Underwriting Agreement and the Indemnity Agreement has been
duly executed and delivered by the Company;
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<PAGE> 20
(iii) Under the laws of the State of New York
relating to personal jurisdiction, the Company and WPS II has,
pursuant to Section 15 of this Agreement, validly and
irrevocably submitted to the personal jurisdiction of any
state or federal court located in the Borough of Manhattan,
The City of New York, New York (each a "New York Court") in
any action arising out of or relating to this Agreement or the
transactions contemplated hereby, has validly and irrevocably
waived any objection to the venue of a proceeding in any such
court, and has validly and irrevocably appointed the
Authorized Agent (as defined herein) as its authorized agent
for the purpose described in Section 14 hereof; and service of
process effected on such agent in the manner set forth in
Section 14 hereof will be effective to confer valid personal
jurisdiction over the Company or WPS II;
(iv) To such counsel's knowledge, and other than as
set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which would
be required to be described in the Registration Statement or
Prospectus that are not described as required, and, to such
counsel's knowledge, no such proceedings are threatened in a
communication in writing by any Governmental Agency or others;
(v) The performance by the Company with its
obligations under this Agreement, the International
Underwriting Agreement and the Indemnity Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any obligation of the Company pursuant to any
Applicable Contract (as defined in such opinion), which term
shall include all "Material Contracts" within the meaning of
Regulation S-K, and except, in each case, which conflict,
breach or default or violation would not, individually or in
the aggregate, have a Material Adverse Effect and would not
impair the Company's ability to perform its obligations
hereunder or under the International Underwriting Agreement or
the Indemnity Agreement, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or By-Laws or other organizational documents of
the U.S. Subsidiary or any United States Federal or New York
State statute or the Delaware General Corporation Law or any
order, rule or regulation known to such counsel of any United
States Federal or New York Governmental Agency having
jurisdiction over the Company or any of its subsidiaries or
any of their properties (other than (i) the rules and
regulation of the National Association of Securities Dealers,
Inc., or (ii) state securities or blue sky laws) ("Applicable
Laws");
(vi) No Governmental Authorization of the United
States or the State of New York is required under Applicable
Laws for the consummation by the Company of the transactions
contemplated by this Agreement, the International Underwriting
Agreement and the Indemnity Agreement, except as have been
obtained or made and except the registration under the Act and
the Exchange Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
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<PAGE> 21
(vii) The statements set forth in the Prospectus
under the captions "Corporate History",
"Business--Regulation", "Principal and Selling Shareholders",
"Certain Relationships and Related Transactions" and
"Enforcement of Civil Liabilities", insofar as they purport to
describe the provisions of the laws of the United States, the
State of New York and Delaware General Corporation Law and
documents referred to therein, are accurate, fair and complete
in all material respects;
(viii) The Company is not an "investment company", as
such term is defined in the Investment Company Act;
(ix) The Shares to be delivered at such Time of
Delivery have been duly approved for listing, subject to
notice of issuance, on the NYSE;
(x) The Registration Statement and the Prospectus and
any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and the notes thereto, related financial
schedules and financial exhibits and, other financial and
accounting data contained therein or omitted therefrom, as to
which such counsel need express no opinion), in each case, as
of its date, complied as to form in all material respects with
the requirements of the Act and the rules and regulations
thereunder; in addition, such counsel shall state that they
have participated in conferences with representatives of the
Company, with the independent public accountants for the
Company, with counsel for the Underwriters and with
representatives of the Underwriters, at which conferences the
contents of the Registration Statement were discussed, and
although they have not independently verified and do not
assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in
the opinion in subsection (viii) of this Section 7(c), such
counsel's participation in such conferences and examination of
the Registration Statement has not led them to believe that,
as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such
Time of Delivery (other than the financial statements and the
notes thereto, related financial schedules and financial
exhibits and other financial and, accounting data contained
therein or omitted therefrom, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of its date or such Time of
Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained or contain an untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
they do not know of any contracts or other documents of a
character required to be filed as an exhibit to the
Registration Statement which are not filed as required;
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<PAGE> 22
(xi) A Power of Attorney and a Custody Agreement have
been duly executed and delivered by each of WPS II, a Selling
Shareholder, and constitute valid and binding agreements of
such Selling Shareholders, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization and similar laws
relating to or affecting creditors' rights generally and by
the application of equitable principles by courts of competent
jurisdiction sitting at law or in equity;
(xii) The Indemnity Agreement has been duly
authorized, executed and delivered by WPS II, and, assuming
that the Indemnity Agreement has been duly authorized,
executed and delivered by each of the other parties thereto,
the Indemnity Agreement constitutes a valid and legally
binding agreement of WPS II, and is enforceable against WPS II
in accordance with its terms, except that enforcement thereof
may be subject to bankruptcy, insolvency, fraudulent
conveyance, moratorium, reorganization and similar laws
relating to or affecting creditors' rights generally and by
the application of equitable principles by courts of competent
jurisdiction sitting at law or in equity;
(xiii) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by or on behalf of the WPS II and the sale of the
Shares to be sold by WPS II hereunder and thereunder and the
compliance by WPS II with all of the provisions of this
Agreement and the International Underwriting Agreement, the
Power of Attorney, the Custody Agreement and the Indemnity
Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any terms or provisions of, or
constitute a default under, any contract or instrument set
forth in a schedule to such opinion, except, in each case,
which conflict, breach or default or violation would not,
individually or in the aggregate, have a Material Adverse
Effect and would not impair the ability of WPS II to perform
its obligations hereunder or under the International
Underwriting Agreement, the Indemnity Agreement, the Power of
Attorney or the Custody Agreement, nor will such action result
in any violation of the provisions of the Certificate of
Incorporation or By-Laws of any WPS II;
(xiv) No Governmental Authorization with respect to
WPS II is required under Applicable Law for the consummation
of the transactions contemplated by this Agreement and the
International Underwriting Agreement in connection with the
Shares to be sold by WPS II hereunder or thereunder, except
such as have been obtained and made and except the
registration under the Act and the Exchange Act, and such as
may be required under state or foreign securities or Blue Sky
laws in connection with the purchase and distribution of such
Shares by the Underwriters or the International Underwriters;
(xv) Each of the Company and its Material
Subsidiaries that is required to be registered as an
investment adviser under the Advisers Act has been so
registered and such registration has not been revoked, and
each of the Company and its Material Subsidiaries that is
required to be registered as a broker-dealer under the
Exchange Act has been so registered and such registration has
not been
22
<PAGE> 23
revoked; neither the Company nor any of its Material
Subsidiaries is required to be registered as a commodity
trading advisor, commodity pool operator or futures commission
merchant under the CEA;
(xvi) Upon delivery of the Shares to DTC or its
agent, registered in the name of Cede & Co. or such other
nominee as may be designated by DTC, and payment therefor,
both as provided herein and in the International Underwriting
Agreement, and the crediting of such Shares to the
Underwriters' and the International Underwriters' accounts
with DTC, Cede & Co. or such other nominee as may be
designated by DTC will be a "protected purchaser" of such
Shares (as defined in Section 8-303 of the UCC), the
Underwriters and the International Underwriters will acquire a
valid "security entitlement" (as defined in Section 8-102 of
the UCC) to such Shares, and no action based on an "adverse
claim" (as defined in Section 8-102 of the UCC) may be
asserted against the Underwriters or the International
Underwriters with respect to such security entitlement
(assuming that, at the time of such delivery and payment, the
Underwriters and the International Underwriters are without
notice of any such adverse claim);
Such counsel shall be entitled to rely in respect of their
opinion in respect of certain matters of fact upon
certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe that
both you and they are justified in relying upon such
certificates and shall provide you with original signed copies
of such certificates.
(d) Nixon Peabody LLP, United States tax counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(b) hereto), dated such Time of
Delivery, relating to such tax-related matters as you may reasonably
request, in form and substance satisfactory to you;
(e) M.R. Weiser & Co LLC shall have furnished to you a letter
substantially in the form of Annex II(c) hereto, dated such Time of
Delivery, in the form and substance satisfactory to you;
(f) Appleby Spurling & Kempe, Bermuda counsel for the Company,
shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex II(d) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company is an exempted company duly
incorporated with limited liability and validly existing under
the laws of Bermuda. The Company possesses the capacity to sue
and be sued in its own name and is in good standing under the
laws of Bermuda;
(ii) The Company has all requisite corporate power
and authority to enter into, execute, deliver, and perform its
obligations under this Agreement, the International
Underwriting Agreement and the Indemnity Agreement to which it
is a party and to take all action as may be necessary to
complete the transactions
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<PAGE> 24
contemplated thereby and to lease or own its properties and
conduct its business as described in the Prospectus;
(iii) The execution, delivery and performance by the
Company of this Agreement, the International Underwriting
Agreement and the Indemnity Agreement to which it is a party
and the transactions contemplated thereby, and the filing of
the Registration Statement with the Commission have been duly
authorized by all necessary corporate action on the part of
the Company;
(iv) This Agreement, the International Underwriting
Agreement and the Indemnity Agreement to which the Company is
a party and the Registration Statement which have been signed
by or on behalf of it have been executed by the Company and
this Agreement, the International Underwriting Agreement and
the Indemnity Agreement each constitute legal, valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms;
(v) Subject to paragraph (ix) all of the necessary
authorizations and approvals of governmental authorities in
Bermuda have been duly obtained for the transfer by the
Selling Shareholders of the Shares;
(vi) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
Stock including, the Shares being delivered at the Time of
Delivery, have been duly and validly authorized and issued by
the Company and are fully paid and non-assessable;
(vii) The Shares are freely transferable by the
Selling Shareholders, subject to complying with the
requirements of Bye-Law 35 of the Bye-Laws of the Company, to
or for the account of the Underwriters as contemplated by this
Agreement and the initial purchasers thereof as contemplated
by this Agreement and except for the requirement to comply
with Bye-Law 35, there are no restrictions under Bermuda law
or the Certificate of Incorporation or the Memorandum of
Association or Bye-Laws of the Company on subsequent transfers
of the Shares, except for the required permission of the
Bermuda Monetary Authority, which has been obtained;
(viii) Each subsidiary listed in a schedule to the
opinion (each a "Bermuda Subsidiary" and together the "Bermuda
Subsidiaries") of the Company has been duly incorporated and
is validly existing as an exempted company in good standing
under the laws of Bermuda and all of the issued shares of each
such Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and are owned
directly or indirectly by the Company;
(ix) No consent or authorization of, filing with, or
other act by or in respect of any governmental authority or
court of Bermuda is required to be obtained by the Company in
connection with the execution, delivery or performance
by the Company of this Agreement, the International
Underwriting Agreement and the Indemnity Agreement or to
ensure the legality, validity, admissibility into evidence or
24
<PAGE> 25
enforceability as to the Company of this Agreement, the
International Underwriting Agreement and the Indemnity
Agreement, or for the transfer of the Shares on the sale
thereof, except that the permission of the Bermuda Monetary
Authority is required and has been granted for the transfer of
the Shares;
(x) The execution, delivery and performance by the
Company of this Agreement, the International Underwriting
Agreement and the Indemnity Agreement and the transactions
contemplated thereby do not and will not violate, conflict
with or constitute a default under (i) any requirement of any
law or any regulation of Bermuda or (ii) the Certificate of
Incorporation or Memorandum of Association or the Bye-laws of
the Company;
(xi) The transactions contemplated by this Agreement,
the International Underwriting Agreement and the Indemnity
Agreement are not subject to any currency deposit or reserve
requirements in Bermuda. The Company has been designated as
"non-resident" for the purposes of the Exchange Control Act of
1972 of Bermuda and regulations made thereunder and there is
no restriction or requirement of Bermuda Law binding on the
Company which limits the availability for transfer of foreign
exchange (i.e. monies denominated in currencies other than
Bermuda dollars) for the purposes of the performance by the
Company of its obligations under this Agreement, the
International Underwriting Agreement and the Indemnity
Agreement;
(xii) The choice of the laws of the State of New York
as the proper law to govern this Agreement, the International
Underwriting Agreement and the Indemnity Agreement is a valid
choice of law under Bermuda law and such choice of law would
be recognized, upheld and applied by the courts of Bermuda as
the proper law of this Agreement, the International
Underwriting Agreement and the Indemnity Agreement in
proceedings brought before them in relation to this Agreement,
the International Underwriting Agreement or the Indemnity
Agreement, provided that (i) the point is specifically
pleaded; (ii) such choice of law is valid and binding under
the laws of the State of New York; and (iii) recognition would
not be contrary to public policy as that term is understood
under Bermuda law, and they are not aware of any public policy
of Bermuda that would be violated by the choice of law under
this Agreement, the International Underwriting Agreement or
the Indemnity Agreement;
(xiii) The submission by the Company to the
jurisdiction of the courts of the State of New York pursuant
to this Agreement, the International Underwriting Agreement
and the Indemnity Agreement is not contrary to Bermuda law and
would be recognized by the courts of Bermuda as a legal, valid
and binding submission to the jurisdiction of the courts of
the State of New York, if such submission is accepted by the
courts of the State of New York and is legal, valid and
binding under the laws of such courts;
(xiv) A final and conclusive judgment of a foreign
court against the Company based upon this Agreement, the
International Underwriting Agreement or the Indemnity
Agreement (other than a court of jurisdiction to which The
Judgments (Reciprocal Enforcement) Act, 1958 applies, and it
does not apply to the courts of
25
<PAGE> 26
the State of New York) under which a sum of money is payable
(not being a sum payable in respect of taxes or other charges
of a like nature, in respect of a fine or other penalty, or in
respect of multiple damages as defined in The Protection of
Trading Interests Act 1981) may be the subject of enforcement
proceedings in the Supreme Court of Bermuda under the common
law doctrine of obligation by action on the debt evidenced by
the foreign court's judgment. A final opinion as to the
availability of this remedy should be sought when the facts
surrounding the foreign court's judgment are known, but, on
general principles, we would expect such proceedings to be
successful provided that:
(A) the court which gave the judgment was competent to
hear the action in accordance with private
international law principles as applied in Bermuda;
and;
(B) the judgment is not contrary to public policy in
Bermuda, has not been obtained by fraud or in
proceedings contrary to natural justice and is not
based on an error in Bermuda law.
Enforcement of such a judgment against assets in Bermuda may
involve the conversion of the judgment debt into Bermuda
dollars, but the Bermuda Monetary Authority has indicated that
its present policy is to give the consents necessary to enable
recovery in the currency of the obligation;
(xv) According to the records maintained in the
register of companies at the office of the Registrar of
Companies, as revealed by such counsel's search, the current
address of the registered office of the Company is Trinity
Hall, 43 Cedar Avenue, Hamilton HM 12, Bermuda;
(xvi) The appointment by the Company of an agent for
the receipt of any service of process in respect of any court
in the State of New York in connection with any matter arising
out of or in connection with this Agreement, the International
Underwriting Agreement and the Indemnity Agreement is a valid
and effective appointment, if such appointment is valid and
binding under the laws of the State of New York and if no
other procedural requirements are necessary in order to
validate such appointment;
(xvii) Neither the Company nor any of its assets or
property enjoys, under Bermuda law, immunity on the grounds of
sovereignty from any legal or other proceedings whatsoever or
from enforcement, execution or attachment in respect of its
obligations under this Agreement, the International
Underwriting Agreement and the Indemnity Agreement;
(xviii) Based solely upon such counsel's searches of
the register of companies at the office of the Registrar of
Companies and in the Supreme Court Cause Book at the Registry
of the Supreme Court:
(A) no litigation, arbitration or
administrative or other proceeding
of or before any arbitrator or
governmental authority of
26
<PAGE> 27
Bermuda is pending or threatened
against or affecting the Company or
against or affecting any of its
properties, rights, revenues or
assets; and
(B) no notice to the Registrar of
Companies of the passing of a
resolution of members or creditors
to wind up or of the appointment of
a liquidator or receiver has been
given. No petition to wind up the
Company or application to reorganize
its affairs pursuant to a scheme of
arrangement or application for the
appointment of a receiver has been
filed with the Supreme Court;
(xix) The Company has received an assurance from the
Ministry of Finance granting an exemption, until March 28,
2016, from the imposition of tax under any applicable Bermuda
law computed on profits or income or computed on any capital
asset, gain or appreciation, or any tax in the nature of
estate duty or inheritance tax, provided that such exemption
shall not prevent the application of any such tax or duty to
such persons as are ordinarily resident in Bermuda and shall
not prevent the application of any tax payable in accordance
with the provisions of the Land Tax Act 1967 or otherwise
payable in relation to land in Bermuda leased to the Company.
There are, subject to paragraph (xiv), no Bermuda taxes, stamp
or documentary taxes, duties or similar charges now due, or
which could in the future become due, in connection with (A)
the execution, delivery, performance or enforcement of this
Agreement, the International Underwriting Agreement and the
Indemnity Agreement or the transactions contemplated thereby,
or in connection with the admissibility in evidence thereof,
(B) the sale and delivery by the Selling Shareholders of the
Shares to or for the respective accounts of the Underwriters
or (C) the sale and delivery outside Bermuda by the
Underwriters of the Shares to the initial purchasers thereof
in the manner contemplated in this Agreement and the
International Underwriting Agreement, and the Company is not
required by any Bermuda law or regulation to make any
deductions or withholdings in Bermuda from any payment it may
make under any such Agreement; and
(xx) The statements set forth in the Prospectus under
the captions "Enforcement of Civil Liabilities", "Certain
Income Tax Considerations - Bermuda", "Description of Capital
Stock" and "Certain Foreign Issuer Considerations", insofar as
they purport to describe the provisions of the laws of Bermuda
referred to therein, are accurate and correct in all material
respects.
(g) Conyers Dill & Pearman, Bermuda counsel for the
Underwriters, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex II(e) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company is duly incorporated and existing
under the laws of Bermuda in good standing. The Company has
the corporate capacity to own its properties and conduct its
business as described in the Prospectus;
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<PAGE> 28
(ii) Based upon a review of the Register of Members
and Minutes, the Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
the Company (including the Shares being delivered pursuant to
this Agreement) have been duly and validly authorized and
issued and are fully paid and non-assessable; all of the
issued shares of capital stock of the Company (including the
Shares) have been duly listed and admitted for trading on the
BSX; the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to
acquire the Shares; the Shares are freely transferable by the
Selling Shareholders, subject to complying with the
requirements of Bye-Law 35, to or for the account of the
Underwriters, in the manner contemplated in the Underwriting
Agreement, and the initial purchasers thereof; and there are
no restrictions on subsequent transfers of the Shares except
as described in the Prospectus under the caption "Certain
Foreign Issuer Considerations"; and the Shares conform to the
description thereof contained in the Prospectus;
(iii) The sale of the Shares by the Selling
Shareholders pursuant to this Agreement will not violate the
Memorandum of Association or Bye-laws of the Company nor any
applicable law, regulation, order or decree in Bermuda;
(iv) No order, consent, approval, license,
authorization or validation of or exemption by any government
or public body or authority of Bermuda or any sub-division
thereof is required to authorize or is required in connection
with the sale of the Shares pursuant to this Agreement, except
the permission of the Bermuda Monetary Authority which has
been obtained;
(v) It is not necessary or desirable to ensure the
enforceability in Bermuda of this Agreement that it be
registered in any register kept by, or filed with, any
governmental authority or regulatory body in Bermuda;
(vi) The sale of the Shares will not be subject to ad
valorem stamp duty in Bermuda;
(vii) Based solely upon a search of the Cause Book of
the Supreme Court of Bermuda conducted (which would not reveal
details of proceedings which have been filed but not actually
entered in the Cause Book at the time of such counsel's
search), there are no judgments against the Company, nor any
legal or governmental proceedings pending in Bermuda to which
the Company is subject;
(viii) Based solely on a search of the public records
in respect of the Company maintained at the offices of the
Registrar of Companies (which would not reveal details of
matters which have not been lodged for registration or have
been lodged for registration but not actually registered at
the time of such counsel's search) and a search of the Cause
Book of the Supreme Court of Bermuda conducted (which would
not reveal details of proceedings which have been filed but
not actually entered in the Cause Book at the time of such
counsel's search), no steps have been, or are being, taken in
Bermuda for the appointment of a receiver or liquidator to, or
for the winding-up, dissolution, reconstruction or
reorganization of, the Company, though it should be noted that
the public files maintained by the
28
<PAGE> 29
Registrar of Companies do not reveal whether a winding-up
petition or application to the Court for the appointment of a
receiver has been presented and entries in the Cause Book may
not specify the nature of the relevant proceedings; and
(ix) Under Bermuda law, the Underwriters will not be
deemed to be resident, domiciled, carrying on any commercial
activity in Bermuda or subject to any taxation in Bermuda by
reason only of the entry into, performance or enforcement of
this Agreement, the International Underwriting Agreement and
the Indemnity Agreement to which they are a party or the
transactions contemplated thereby. It is not necessary under
Bermuda law that the Underwriters be authorized, qualified or
otherwise entitled to carry on business in Bermuda for their
execution, delivery, performance or enforcement of this
Agreement, the International Underwriting Agreement and the
Indemnity Agreement;
(h) Lisa D. Levey, Esq., General Counsel of the Company, shall
have furnished to you her written opinion (a draft of such opinion is
attached as Annex II(f) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) To the best of such counsel's knowledge, and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its Material Subsidiaries is a party or of which any
property of the Company or any of its Material Subsidiaries is
the subject which, if determined adversely to the Company or
any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of
such counsel's knowledge, no such proceedings are threatened
or contemplated by any Governmental Agency or threatened in a
communication in writing by others;
(ii) The compliance by the Company with all of the
provisions of this Agreement, the International Underwriting
Agreement and the Indemnity Agreement and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its Material Subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of
its Material Subsidiaries is subject, nor will such action
result in any violation of any statute or any order, rule or
regulation known to such counsel of any Governmental Agency
having jurisdiction over the Company or any of its Material
Subsidiaries or any of their properties, except, in each case,
which conflict, breach or default or violation would not,
individually or in the aggregate, have a Material Adverse
Effect and would not impair the Company's ability to perform
its obligations hereunder, under the International
Underwriting Agreement or under the Indemnity Agreement;
(iii) The Company and each of its Material
Subsidiaries have all franchises, permits, authorizations,
approvals and orders and other licenses and concessions of and
from all Governmental Agencies that are necessary to own or
lease their other properties and conduct their businesses as
described in the
29
<PAGE> 30
Prospectus except for such licenses, franchises, permits,
authorizations, approvals and orders the failure to obtain
would not, individually or in the aggregate, have a Material
Adverse Effect; and
(iv) Although she has not independently verified and
does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, she has no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
prior to such Time of Delivery (other than the financial
statements and the notes thereto, related financial schedules
and financial exhibits, and other financial and accounting
data contained therein or omitted therefrom, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date and
such Time of Delivery, the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Time
of Delivery (other than the financial statements and the notes
thereto, related financial schedules and financial exhibits,
and other financial and accounting data contained therein or
omitted therefrom, as to which such counsel need express no
opinion) contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving such opinion, such counsel may state that with
respect to all matters of Bermuda law she has relied upon the opinions
of counsel for the Company delivered pursuant to paragraph (f) of this
Section 7;
(i) Swidler Berlin Shereff Friedman, LLP, special counsel for
the Company, shall have furnished to you their written opinion (a draft
of such opinion is attached as Annex(g) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The consummation of the transactions contemplated
by this Agreement, the International Underwriting Agreement
and the Indemnity Agreement will not constitute an
"assignment", within the meaning of such term under the
Advisers Act (and rules and regulations thereunder) or the
Investment Company Act (and the rules and regulations
thereunder).
(j) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement
and also at each Time of Delivery, PricewaterhouseCoopers LLP shall
have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, (the
executed copy of the letter delivered prior to the execution of this
Agreement is attached as Annex I(a) hereto and a draft of the form of
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery
is attached as Annex I(b) hereto);
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(k) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, M.R. Weiser & Co. LLC shall have furnished to
you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set
forth in Annex III hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex III(a)
hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration
Statement and as of each Time of Delivery is attached as Annex III(b)
hereto);
(l) (i) Neither the Company nor any of its Material
Subsidiaries shall have sustained since the date of the latest audited
financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
most recent dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or increase
in long-term debt of, or adverse change in assets under management by,
the Company or any of its subsidiaries or any change or development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholder's equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(m) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the NYSE or the BSX; (ii) a
suspension or material limitation in trading in the Company's
securities on the NYSE or the BSX; (iii) a general moratorium on
commercial banking activities in New York or Bermuda declared by the
relevant authorities; (iv) an adverse change or development involving a
prospective adverse change in Bermuda taxation affecting the Company,
the Shares or the transfer thereof or the imposition of exchange
controls by the United States or Bermuda; (v) the outbreak or
escalation of hostilities involving the United States or Bermuda or the
declaration by the United States or Bermuda of a national emergency or
war, if the effect of any such event specified in this clause (v) in
the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus; or (vi) the occurrence of any
material adverse change in the existing financial, political or
economic conditions in the United States or Bermuda or elsewhere which,
in the judgment of the Representatives, would materially and adversely
affect the financial markets or the market for the Shares and other
equity securities;
(n) The Shares to be sold by the Selling Shareholders at such
Time of Delivery shall have been duly listed on the NYSE [and the BSX];
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(o) The Company shall have obtained and delivered to the
Underwriters executed copies of an agreement to the effect set forth in
subsection 5(b)(i) hereof, in form and substance satisfactory to you,
from each shareholder of the Company listed on Schedule IV (other than
the Selling Shareholders listed on such Schedule);
(p) The Company shall have delivered to the Underwriters a
copy of the Indemnity Agreement duly executed by each of the parties
thereto;
(q) PricewaterhouseCoopers LLP, independent accountants, shall
have performed an examination of the Company's performance record and
issued a report on such examination (the form of which report is
attached as Annex II(h) hereto) for the period January 1, 1989 through
September 30, 2000, including the three, five and ten year periods
ended December 31, 1999, which report shall be attached to the
Prospectus as an exhibit;
(r) The Company has delivered a letter to the Underwriters
confirming that the Company has performed certain procedures with
respect to the preparation of the performance data included in the
Prospectus for the period from January 1, 1975 through December 31,
1989, and confirming certain matters with respect to such data;
(s) The Company shall have complied with the provisions of
Section 5(a)(iii) hereof with respect to the furnishing of prospectuses
on the New York Business Day next succeeding the date of this
Agreement;
(t) The Company and the Selling Shareholders shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and of the Selling
Shareholders, respectively, satisfactory to you as to the accuracy of
the representations and warranties of the Company and the Selling
Shareholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Shareholders of
all of their respective obligations hereunder to be performed at or
prior to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to
be furnished certificates as to the matters set forth in subsections
(a) and (l) of this Section, and as to such other matters as you may
reasonably request; and
(u) Each counsel set forth on Schedule V, as counsel for the
Selling Shareholder set forth next to their name on Schedule V, shall
have furnished to you their written opinion (a draft of such opinion is
attached as Annex II (i) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Under the laws of the State of New York relating to
personal jurisdiction, such Selling Shareholder, has, pursuant to
Section 14 of this Agreement, validly and irrevocably submitted to the
personal jurisdiction of a New York Court in any action arising out of
or relating to this Agreement or the transactions contemplated hereby,
has validly and irrevocably waived any objection to the venue of a
proceeding in any such court, and has validly and irrevocably appointed
the Authorized Agent (as defined herein) as its authorized agent for
the purpose described in Section 14 hereof; and service of process
effected on such agent in the manner set forth in Section 14 hereof
will be effective to confer valid personal jurisdiction over such
Selling Shareholder; provided, however, that if such counsel
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<PAGE> 33
is not admitted to practice in the State of New York, then the
foregoing opinion shall be to the following effect: As far as the laws
of the jurisdiction of incorporation or organization of the Selling
Shareholder are concerned such Selling Shareholder, has, pursuant to
Section 14 of this Agreement, validly and irrevocably submitted to the
personal jurisdiction of a New York Court in any action arising out of
or relating to this Agreement or the transactions contemplated hereby,
has validly and irrevocably waived any objection to the venue of a
proceeding in any such court, and has validly and irrevocably appointed
the Authorized Agent (as defined herein) as its authorized agent for
the purpose described in Section 14 hereof; and service of process
effected on such agent in the manner set forth in Section 14 hereof
will be effective to confer valid personal jurisdiction over such
Selling Shareholder;
(ii) A Power of Attorney and a Custody Agreement have been
duly executed and delivered by such Selling Shareholder, and constitute
valid and binding agreements of such Selling Shareholder, enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization and similar laws
relating to or affecting creditors' rights generally and by the
application of equitable principles by courts of competent jurisdiction
sitting at law or in equity;
(iii) If applicable, the Indemnity Agreement has been duly
authorized, executed and delivered by such Selling Shareholder, as
Guarantor (as defined therein), and, assuming that the Indemnity
Agreement has been duly authorized, executed and delivered by each of
the other parties thereto, the Indemnity Agreement constitutes a valid
and legally binding agreement of such Selling Shareholder, and is
enforceable against such Selling Shareholder in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization and similar laws relating to or affecting
creditors' rights generally and by the application of equitable
principles by courts of competent jurisdiction sitting at law or in
equity;
(iv) This Agreement and the International Underwriting
Agreement have been duly authorized, executed and delivered by or on
behalf of the Selling Shareholder and the sale of the Shares to be sold
by such Selling Shareholder hereunder and thereunder and the compliance
by such Selling Shareholder with all of the provisions of this
Agreement and the International Underwriting Agreement, the Power of
Attorney, the Custody Agreement and the Indemnity Agreement, as
applicable, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any terms or provisions of, or constitute a default under, any
contract or instrument set forth in a schedule to such opinion, except,
in each case, which conflict, breach or default or violation would not,
individually or in the aggregate, impair the ability of such Selling
Shareholder to perform its obligations hereunder or under the
International Underwriting Agreement, the Indemnity Agreement, the
Power of Attorney or the Custody Agreement, as applicable, nor will
such action result in any violation of the provisions of the
certificate of incorporation, by-laws, trust instrument or other
organizational documents, as applicable, of such Selling Shareholder;
and
(v) No Governmental Authorization of or with any Governmental
Agency in the jurisdiction of organization of the Selling Shareholder,
is required for the consummation of the transactions contemplated by
this Agreement and the International Underwriting Agreement in
connection with the Shares to be sold by such Selling Shareholder
hereunder
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<PAGE> 34
or thereunder, except such as have been obtained and made and except
the registration under the Act and the Exchange Act, and such as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of such Shares by the
Underwriters or the International Underwriters.
8. (a)(i) The Company and each of the Selling Shareholders set forth on
Schedule VI (each a "Full Indemnity Selling Shareholder"), jointly and
severally, will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company and the Full Indemnity Selling Shareholders shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Goldman, Sachs & Co. expressly for use
therein; provided, further, that the liability of a Full Indemnity Selling
Shareholder pursuant to this subsection (a)(i) shall not exceed the sum (the
"Limited Amount") of (i) the product of the number of Shares sold by such Full
Indemnity Selling Shareholder and the per Share proceeds, before expenses, to
the Selling Shareholders as set forth in the table on the cover page of the U.S.
Prospectus and (ii) such Selling Shareholder's pro rata share of the Underwriter
Expenses.
(ii) Each of the Selling Shareholders not set forth on
Schedule VI (each a "Limited Indemnity Selling Shareholder") will
severally indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriters may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Limited Indemnity Selling Shareholder
expressly for use therein; and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that such Limited
Indemnity Selling Shareholder shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged
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<PAGE> 35
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon an in conformity with
written information furnished to the Company by any Underwriter through
Goldman, Sachs & Co. expressly for use therein; provided, further, that
the liability of a Limited Indemnity Selling Shareholder pursuant to
this subsection (a)(ii) shall not exceed the sum of (i) the product of
the number of Shares sold by such Limited Indemnity Selling Shareholder
and the per Share proceeds, before expenses, to the Selling
Shareholders as set forth in the table on the cover page of the U.S.
Prospectus and (ii) such Limited Indemnity Selling Shareholder's pro
rata share of the Underwriter Expenses.
(b) Each Underwriter will indemnify and hold harmless the Company and
each Selling Shareholder against any losses, claims, damages or liabilities to
which the Company or such Selling Shareholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company and each Selling
Shareholder for any legal or other expenses reasonably incurred by the Company
or such Selling Shareholder in connection with investigating or defending any
such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
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 an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under either of such subsections for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation; provided, that, if such indemnified
party shall have been advised by counsel that there may be one or more legal
defenses available to such indemnified party which are different from or
additional to those available to the indemnifying party, then the indemnifying
party shall not have the right to assume the defense of such action in the event
that the indemnified party elects to employ separate counsel at the expense of
the indemnified party; it being understood however, that in no event shall the
indemnifying party be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own
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<PAGE> 36
counsel for all indemnified parties in connection with any one action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party. No
indemnifying party shall be liable under this Section 8 for any settlement of
any claim or action effected without its consent which consent shall not be
unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
Agreement, in each case as set forth in the table on the cover page of the U.S.
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Selling Shareholders on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, each of the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter
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<PAGE> 37
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this subsection (d), no Selling Shareholder shall be required to contribute any
amount in excess of its Limited Amount. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Selling Shareholders under
this Section 8 shall be in addition to any liability which the Company and the
respective Selling Shareholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Selling
Shareholders and to each person, if any, who controls the Company or any Selling
Shareholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Selling Shareholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Selling Shareholders
that you have so arranged for the purchase of such Shares, or the Selling
Shareholders notify you that they have so arranged for the purchase of such
Shares, you or the Selling Shareholders shall have the right to postpone such
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Shareholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of all of the Shares to be purchased at such Time of Delivery, then the
Selling Shareholders shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Selling
Shareholders as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased exceeds
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<PAGE> 38
one-eleventh of the aggregate number of all of the Shares to be purchased at
such Time of Delivery, or if the Selling Shareholders shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Selling Shareholders to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Shareholders, except
for the expenses to be borne by the Company and the Selling Shareholders and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
provisions contained in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders or any officer
or director or controlling person of the Company, or any officer or director or
controlling person of any Selling Shareholder, and shall survive delivery of and
payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof
or if the International Underwriting Agreement is terminated pursuant to Section
9 thereof, neither the Company nor the Selling Shareholders shall then be under
any liability to any Underwriter except as provided in Sections 6 and 8 hereof;
but, if for any other reason any Shares are not delivered by or on behalf of the
Selling Shareholders as provided herein, each of the Selling Shareholders pro
rata (based on the number of Shares to be sold by such Selling Shareholder
hereunder) will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Shares not so delivered, but the Company and
the Selling Shareholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
Representatives of the Underwriters; and in all dealings with any Selling
Shareholder hereunder, you and the Company shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of such Selling
Shareholder made or given by any or all of the Attorneys-in-Fact for such
Selling Shareholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 1 Liberty Plaza, 7th Floor, New York, New York 10006, Attention:
Registration Department; if to any Selling Shareholder shall be delivered or
sent by mail, telex or facsimile transmission to counsel for such Selling
Shareholder at its address set forth in Schedule V hereto; if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
Managing Director, provided, however, that any notice to an Underwriter pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its
38
<PAGE> 39
address set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company or the Selling
Shareholders by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and the Selling Shareholders, and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and the Selling Shareholders and each person who controls the
Company, any Selling Shareholder or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal
suit, action or proceeding against the Company or the Selling Shareholders
brought by any Underwriter or by any person who controls any Underwriter arising
out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of the
Company and each of the Selling Shareholders, hereby appoints W.P. Stewart &
Co., Inc., 527 Madison Avenue, New York, New York 10022, as its authorized agent
(the "Authorized Agent") upon whom process may be served in any such action
arising out of or based on this Agreement or the transactions contemplated
hereby which may be instituted in any New York Court by any Underwriter or by
any person who controls any Underwriter, expressly consents to the jurisdiction
of any such court in respect of any such action, and waives any other
requirements of or objections to personal jurisdiction with respect thereto.
Such appointment shall be irrevocable. Each of the Company and each of the
Selling Shareholders represents and warrants that the Authorized Agent has
agreed to act as such agent for service of process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company, the Selling Shareholders, as the case may be.
15. In respect of any judgment or order given or made for any amount
due hereunder by the Company or any such Selling Shareholder that is expressed
and paid in a currency (the "judgment currency") other than United States
dollars, the Company or such Selling Shareholder, as the case may be, will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Company and the Selling
Shareholders and shall continue in full force and effect notwithstanding any
such judgment or order as aforesaid. The term "rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of or
conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
39
<PAGE> 40
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us 6 counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Shareholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters (U.S. Version), the form of
which shall be submitted to the Company and the Selling Shareholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
40
<PAGE> 41
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Shareholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Shareholders pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
W.P. Stewart & Co., Ltd.
[Common Seal
of the Company] By:
--------------------------------
Name:
Title:
WPS II, Inc.
By:
--------------------------------
Name:
Title:
------------------------------------
Name:
As Attorney-in-Fact acting on behalf
of each Selling Shareholder named in
Schedule II to this Agreement
Accepted as of the date hereof
in New York, New York:
Goldman, Sachs & Co.
Lazard Freres & Co. LLC
Bear, Stearns & Co., Inc.
Salomon Smith Barney Inc.
By:
-------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
41
<PAGE> 42
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
TO BE PURCHASED EXERCISED
UNDERWRITER
<S> <C> <C>
GOLDMAN, SACHS & CO.........................................
LAZARD FRERES & CO. LLC.....................................
BEAR, STEARNS & CO., INC.
SALOMON SMITH BARNEY INC.
[NAMES OF OTHER UNDERWRITERS]...............................
</TABLE>
<PAGE> 43
SCHEDULE II*
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
<S> <C> <C>
The Selling Shareholders:
WPS II, Inc. (a).............................................. 7,865,000 1,680,602
Kevin S. and Michaelane Aarons,
Joint Tenants (a).................................... 9,504 0
David A. Altman (a)........................................... 103,411 0
Shamell Amory (a)............................................. 321 0
Scott Belair (a).............................................. 16,358 0
Marilyn G. Breslow (a)........................................ 87,011 0
Marilyn G. Breslow and Jan L. Breslow,
Trustees u/a Nicholas Morris Breslow 1997
Grantor Trust (a)............................................. 10,774 0
Marilyn G. Breslow and Jan L. Breslow,
Trustees u/a Noah Joseph Breslow 1997
Grantor Trust (a)............................................. 10,774 0
Robert E. Burke (a)........................................... 3,259 0
Edward C. Butler (a).......................................... 12,902 0
Sylvia A. Cart (a)............................................ 1,000 0
John J. and Kathleen Casey, Joint Tenants (a)................. 3,790 0
Sandra Coleman (a)............................................ 18,409 0
Detra DeChabert (a)........................................... 1,161 0
Kevin DeVos (a)............................................... 500 0
Europa International Ltd. (a)................................. 13,590 0
Alexander M. Farman-Farmaian (a).............................. 87,545 0
John Ferrer (a)............................................... 19,022 0
</TABLE>
--------
* To be adjusted to reflect the split between the U.S. and the international
offering.
<PAGE> 44
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
<S> <C> <C>
First Long Island Holdings LLC (a)............................ 10,000 0
Christine A. Fowler (a)....................................... 18,260 0
Joseph S. Frelinghuysen, Jr. (a).............................. 50,380 0
Michael J. Gillen (a)......................................... 2,190 0
The Graymer Foundation (a).................................... 202,077 0
Sarah Harkness (a)............................................ 1,125 0
Cecilia M. Hartsell (a)....................................... 258 0
Susan Hughes (a).............................................. 1,571 0
Joann Hundertmark (a)......................................... 107 0
Patricia A. Ingenito (a)...................................... 25,938 0
David Jennison, Matthew Jennison &
David B. Jennison, Trustees u/a f/b/o
Peter H. Jennison (a)......................................... 12,822 0
David Jennison, Peter H. Jennison &
David B. Jennison, Trustees u/a f/b/o
Matthew Jennison (a).......................................... 12,822 0
Matthew Jennison, Peter H. Jennison &
David B. Jennison, Trustees u/a f/b/o
David Jennison (a)............................................ 12,822 0
Peter H. Jennison (a)......................................... 40,227 0
Philip D. Jennison (a)........................................ 76,199 0
Helen Klaben Kahn, Trustee u/a Helen Klaben
Kahn Revocable Trust dtd 3/15/60 (a). ........................ 19,756 0
Richard O. Kahn (a)........................................... 13,630 0
Robert L. Kahn (a)............................................ 220,704 0
Stephen A. Kahn (a)........................................... 13,630 0
Kristen M. Killian (a)........................................ 3,000 0
</TABLE>
<PAGE> 45
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
<S> <C> <C>
P. Jefferson Kimball (a)...................................... 6,000 0
Susan G. Leber (a)............................................ 12,500 0
Lisa D. Levey (a)............................................. 15,482 0
Annika McLoud (a)............................................. 1,935 0
Rocco Macri (a)............................................... 25,000 0
Carolann F. Marshall (a)...................................... 22,771 0
Ryan Melkonian (a)............................................ 1,600 0
Stephen E. Memishian (a)...................................... 202,749 0
Morgan Guaranty Trust Company of New York
and Judith Genatt, Trustees u/a dtd. 12/23/92
f/b/o James Schwartz (a)...................................... 56,250 0
Morgan Guaranty Trust Company of New York
and Judith Genatt, Trustees u/a dtd. 12/23/92
f/b/o Jonathon Schwartz (a)................................... 56,250 0
Morgan Guaranty Trust Company of New York
and Judith Genatt, Trustees u/a dtd. 12/23/92
f/b/o Kathryn Schwartz (a).................................... 56,250 0
Marina M. Morgan (a).......................................... 1,806 0
Andrea M. Myron (a)........................................... 258 0
Alison Proshan (a)............................................ 1,875 0
Madeline Ramirez (a).......................................... 258 0
Wendy Richter (a)............................................. 3,096 0
Kathleen Ritchie (a).......................................... 321 0
Robert L. Rohn (a)............................................ 128,822 0
Mary Elizabeth Rogers, Trustee of Ann Bronwyn
Rogers Trust (a).............................................. 9,790 0
Robert D. Rosenthal (a)....................................... 18,360 0
</TABLE>
<PAGE> 46
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
<S> <C> <C>
John C. Russell (a)........................................... 143,805 0
Frederick M. Ryan (a)......................................... 25,000 0
Robert L. Schwartz (a)........................................ 566,063 0
Harry W. Segalas (a).......................................... 109,207 0
Hanna Shen (a)................................................ 1,290 0
Barbara A. Shelley (a)........................................ 25,736 0
Samantha Smith (a)............................................ 25,000 0
Daniel B. Strickberger (a).................................... 309,248 0
Alexander Stucki (a).......................................... 4,286 0
Kachun Tam (a)................................................ 11,071 0
TPR & Partners N.V. (a)....................................... 200,448 0
TPR Curacao N.V. (a).......................................... 145,152 0
Dennis Walsh (a).............................................. 1,475 0
John S. Ward (a).............................................. 5,000 0
Barton Weisenfluh (a)......................................... 1,200 0
Jill A. Valenti (a)........................................... 1,806 0
Debra S. Valenti (a).......................................... 4,649 0
E. Glynn Valentine (a)........................................ 357 0
Total 11,204,015 1,680,602
</TABLE>
(a) The Selling Shareholder has appointed Lisa D. Levey and John C. Russell,
and each of them, as the Attorneys-in-Fact for such Selling Shareholder.
<PAGE> 47
SCHEDULE III
MATERIAL SUBSIDIARIES
W.P. Stewart & Co., Inc.
W.P. Stewart Securities Limited
W.P. Stewart Asset Management (NA), Inc.
W.P. Stewart Asset Management Ltd.
W.P. Stewart & Co. (Europe), Ltd.
<PAGE> 48
SCHEDULE IV
SHAREHOLDERS SUBJECT TO LOCK-UP
Selling Shareholders:
WPS II, Inc.
Kevin S. Aarons
David A. Altman
Scott Belair
Marilyn G. Breslow
Marilyn G. Breslow and Jan L. Breslow, Trustees u/a Nicholas Morris Breslow 1997
Grantor Trust
Marilyn G. Breslow and Jan L. Breslow, Trustees u/a Noah Joseph Breslow 1997
Grantor Trust
Robert E. Burke
Edward C. Butler
John J. Casey
Sandra Coleman
Europa International Ltd.
Alexander M. Farman-Farmaian
John Ferrer
First Long Island Holdings LLC
Christine A. Fowler
Joseph Frelinghuysen, Jr.
Michael J. Gillen
Patricia A. Ingenito
Matthew Jennison, Peter H. Jennison & David B. Jennison, Trustees u/a/ f/b/o
David Jennison
David Jennison, Peter H. Jennison & David B. Jennison, Trustees u/a f/b/o
Matthew Jennison
David Jennison, Matthew Jennison & David B. Jennison, Trustees u/a/ f/b/o Peter
H. Jennison
Peter H. Jennison
Philip D. Jennison
Helen Klaben Kahn, Trustee u/a Helen Klaben Kahn Revocable Trust dtd 3/15/00
Richard O. Kahn
Robert L. Kahn
Stephen A. Kahn
Kristen M. Killian
P. Jefferson Kimball
Susan Leber
Lisa D. Levey
Rocco Macri
Carolann F. Marshall
Stephen E. Memishian
Wendy Richter
The Graymer Foundation
Mary Elizabeth Rogers
Robert L. Rohn
Robert D. Rosenthal
John C. Russell
<PAGE> 49
Frederick M. Ryan
Robert L. Schwartz
Morgan Guaranty Trust Company of New York and Judith Genatt, Trustees u/a dtd.
12/23/92 f/b/o James Schwartz
Morgan Guaranty Trust Company of New York and Judith Genatt, Trustees u/a dtd.
12/23/92 f/b/o Jonathon Schwartz
Morgan Guaranty Trust Company of New York and Judith Genatt, Trustees u/a dtd.
12/23/92 f/b/o Kathryn Schwartz
Harry W. Segalas
Barbara A. Shelley
Samantha Smith
Stewart Notz Stucki Limited
Daniel B. Strickberger
Alexander Stucki
Kachun Tam
TPR & Partners NV
TPR Curacao NV
Debra S. Valenti
John S. Ward
Non-Selling Shareholders:
John A. Allison
Richard C. Breeden
Dr. Edgar H. Brunner
Cater Allen Nominess (Jersey) Limited
Patricia M. Conides
Stacy R. Golding
Mark Henderson
Frans Jurgens
Ralph Palleschi
David S. Rogers
Stuart G. Rogers
Patricia B. Russell Marital Trust
Henry B. Smith
Heinrich (Carl) Spangler
Lisa Stewart
Stewart Trust 1987 -- FBO Gregory S. Stewart
Stewart Trust 1987 -- FBO Jeffrey R. Stewart
Stewart Trust 1987 -- FBO Jeffrey R. Stewart
Stewart Trust 1987 -- FBO Lisa M. Stewart
Stewart Trust 1987 -- FBO William P. Stewart III
Charles Target
Alice Zoloto
Investment Professionals
<PAGE> 50
Celina Lin (6,156 shares)
Naoko Takemura (6,156 shares)
Additional Directors or Executive officers:
William P. Stewart
<PAGE> 51
SCHEDULE V
COUNSEL TO SELLING SHAREHOLDERS
<TABLE>
<CAPTION>
Name of Selling Shareholder: Name and Address of Counsel:
--------------------------- ---------------------------
<S> <C>
Nicholas Morris Breslow 1997 Grantor Trust Joshua S. Rubinstein, Esq.,
Rosenman & Colin LLP
575 Madison Avenue
New York, N.Y. 10022
(212) 940-8800
(212) 940-8776; 0679 (fax)
Noah Joseph Breslow 1997 Grantor Trust Joseph S. Rubinstein, Esq.
Rosenman & Colin LLP
575 Madison Avenue
New York, N.Y. 10022
(212) 940-8800
(212) 940-8776; 0679 (fax)
Europa International Ltd. [Name and Address]
First Long Island Holdings LLC Bruce Siegel, Esq.,
First Long Island Investors
LLC
1 Jericho Plaza
Jericho, N.Y. 11753
(516) 935-1200
(516) 935-1274
The Graymer Foundation James E. Davidson, Esq.,
Schenck, Price, Smith &
King LLP
10 Washington Street
P.O. Box 905
Morristown, N.J. 07963-0905
(973) 539-1000
(973) 540-7300 (fax)
Trust for the benefit of Peter H. Jennison Elizabeth C. Marshall, Esq.
Williams Parker Harrison
Dietz & Getzen
200 South Orange Avenue
Sarasota, FL 34236
(941) 366-4800
</TABLE>
<PAGE> 52
<TABLE>
<CAPTION>
Name of Selling Shareholder: Name and Address of Counsel:
--------------------------- ---------------------------
<S> <C>
Trust for the benefit of Matthew Jennison Elizabeth C. Marshall, Esq.
Williams Parker Harrison
Dietz & Getzen
200 South Orange Avenue
Sarasota, FL 34236
(941) 366-4800
Trust for the benefit of David Jennison Elizabeth C. Marshall, Esq.
Williams Parker Harrison
Dietz & Getzen
200 South Orange Avenue
Sarasota, FL 34236
(941) 366-4800
Helen Klaben Kahn Revocable Trust David S. Zuckerman, Esq.
dated March 15, 2000 Zuckerman & McQuiller
4 Embarcadero Center
Suite 3610
San Francisco, CA 94111
(415) 392-1980
Trust dated December 23, 1992 for the Jonathan J. Rikoon, Esq.
benefit of James Schwartz Debevoise & Plimpton
875 Third Avenue
New York, N.Y. 10022
(212) 909-7217
(212) 909-6836 (fax)
Trust dated December 23, 1992 for the Jonathan J. Rikoon, Esq.
benefit of Jonathon Schwartz Debevoise & Plimpton
875 Third Avenue
New York, N.Y. 10022
(212) 909-7217
(212) 909-6836 (fax)
Trust dated December 23, 1992 for the Jonathan J. Rikoon, Esq.
benefit of Kathryn Schwartz Debevoise & Plimpton
875 Third Avenue
New York, N.Y. 10022
(212) 909-7217
(212) 909-6836 (fax)
</TABLE>
<PAGE> 53
<TABLE>
<CAPTION>
Name of Selling Shareholder: Name and Address of Counsel:
--------------------------- ---------------------------
<S> <C>
Ann Bronwyn Rogers Trust Clinton J. Curtis, Esq.
Schenck, Price, Smith &
King LLP
10 Washington Street
P.O. Box 905
Morristown, N.J. 07963-0905
(973) 539-1000
(973) 540-7300 (fax)
TPR & Partners N.V. Mr. Paul Gorsira
Van Wijk & Gorsira
Schoolstraat 27
2242 KE Wassenaar
The Netherlands
(+31) 7051-23-123
(+31) 7051-23-100 (fax)
[email protected]
TPR Curacao N.V. Mr. Mike Alexander
Alexander & Simon
Civil Law Notary Office
2, Gaitoweg
P.O. Box 4900
Willemstad, Curacao,
Netherlands Antilles
(+599) 9-737-11-11
(+599) 9-737-11-33 (fax)
WPS II., Inc. John B. (Barry) Wade III, Esq.
Dorsey & Whitney
250 Park Avenue
New York, N.Y. 10177
(212) 415-9200
(212) 953-7201
</TABLE>
<PAGE> 54
SCHEDULE VI
FULL INDEMNITY SELLING SHAREHOLDERS
WPS II, Inc.
Rocco Macri
Robert D. Rosenthal
John C. Russell
Fredrick M. Ryan
<PAGE> 55
ANNEX I(a)
EXECUTED COPY OF LETTER FROM PRICEWATERHOUSECOOPERS LLP
<PAGE> 56
ANNEX I(b)
FORM OF LETTER FROM PRICEWATERHOUSECOOPERS LLP
<PAGE> 57
ANNEX II(a)
OPINION OF DORSEY & WHITNEY LLP
<PAGE> 58
ANNEX II(b)
OPINION OF NIXON PEABODY LLP
<PAGE> 59
ANNEX II(c)
LETTER FROM M.R. WEISER & CO. LLC
<PAGE> 60
ANNEX II(d)
OPINION OF APPLEBY SPURLING & KEMPE
<PAGE> 61
ANNEX II(e)
OPINION OF CONYERS DILL & PEARMAN
<PAGE> 62
ANNEX II(f)
OPINION OF LISA D. LEVEY
<PAGE> 63
ANNEX II(g)
OPINION OF SWIDLER BERLIN
<PAGE> 64
ANNEX II(h)
REPORT BY PRICEWATERHOUSECOOPERS LLP
<PAGE> 65
ANNEX II(i)
OPINION OF COUNSEL OF SELLING SHAREHOLDERS
<PAGE> 66
ANNEX III
Pursuant to Section 7(k) of the Underwriting Agreement, M.R. Weiser & Co.
LLC shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) The unaudited selected financial information with respect to the
combined/consolidated results of operations and financial position of the
Company for the fiscal years ended December 31, 1995 included in the
Prospectus agrees with the corresponding amounts (after restatements where
applicable) in the audited combined/consolidated statements of the Company
for such fiscal years; and
(iii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus, or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives, and have compared certain of such
amounts, percentages and financial information with the accounting records
of the Company and its subsidiaries and have found them to be in
agreement.
<PAGE> 67
ANNEX III(a)
EXECUTED COPY OF LETTER FROM M.R. WEISER & CO. LLC
<PAGE> 68
ANNEX III(b)
FORM OF LETTER FROM M.R. WEISER & CO. LLC
<PAGE> 69
ANNEX IV
APRIL 23, 1999 LETTER FROM THE COMPANY TO PRICEWATERHOUSECOOPERS LLP
