<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 9, 1997
REGISTRATION NO. 333-27375
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
BIG FLOWER PRESS HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 13-376-8322
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
</TABLE>
--------------------------
3 EAST 54TH STREET
NEW YORK, NEW YORK 10022
(212) 521-1600
(Address, including Zip Code, and Telephone Number, including Area Code, of
Registrant's Principal Executive Offices)
------------------------------
MARK A. ANGELSON, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND
SECRETARY OF THE BOARD OF DIRECTORS
BIG FLOWER PRESS HOLDINGS, INC.
3 EAST 54TH STREET
NEW YORK, NEW YORK 10022
(212) 521-1600
(Name, Address, including Zip Code, and Telephone Number, including Area Code,
of Agent For Service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
ROBERT E. BUCKHOLZ, JR., ESQ. FRANCIS J. MORISON, ESQ.
Sullivan & Cromwell Davis Polk & Wardwell
125 Broad Street 450 Lexington Avenue
New York, New York 10004 New York, New York 10017
(212) 558-4000 (212) 450-4000
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after this Registration Statement is declared
effective by order of the Securities and Exchange Commission.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ____________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same
offering. / / ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The table below sets forth the expenses expected to be incurred and borne
solely by the Company in connection with the registration of the shares of
Common Stock offered hereby. All amounts, except the SEC Registration Fee, are
estimated.
<TABLE>
<S> <C>
SEC Registration Fee.............................................. $ 34,848
Legal Fees and Expenses........................................... 250,000
Blue Sky Fees and Expenses........................................ 5,000
Accounting Fees and Expenses...................................... 50,000
Printing Fees and Expenses........................................ 150,000
Miscellaneous..................................................... 50,000
---------
Total......................................................... $ 539,848
---------
</TABLE>
- ------------------------
* To be filed by amendment.
The Company has agreed to bear certain costs of registering the shares of
Common Stock under the Securities Act, including the registration fee under the
Securities Act, all other registration and filing fees, all fees and
disbursements of counsel and accountants retained by the Company and all other
expenses incurred by the Company in connection with the Company's performance of
or compliance with the Registration Rights Agreement; such costs (or estimates
thereof) have been set forth above. The Selling Stockholders will bear certain
other costs relating to the registration of the shares of Common Stock under the
Securities Act, including all underwriting discounts and commissions, all
transfer taxes and all costs of any separate legal counsel or other advisors
retained by the Selling Stockholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware empowers
a Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. A Delaware corporation may indemnify directors, officers, employees
and other agents of such corporation in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the person to be indemnified has been
adjudged to be liable to the corporation. Where a director, officer, employee or
agent of the corporation is successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to above or in defense of any claim,
issue or matter therein, the corporation must indemnify such person against the
expenses (including attorneys' fees) which he or she actually and reasonably
incurred in connection therewith.
II-1
<PAGE>
The Bylaws contain provisions that provide for indemnification of officers
and directors and their heirs and distributees to the fullest extent permitted
by, and in the manner permissible under, the General Corporation Law of the
State of Delaware.
As permitted by Section 102(b)(7) of the General Corporation Law of the
State of Delaware, the Company's Certificate contains a provision eliminating
the personal liability of a director to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, subject to certain
exceptions.
The Company maintains policies insuring its officers and directors against
certain civil liabilities, including liabilities under the Securities Act.
Pursuant to the Underwriting Agreement, the Underwriters have agreed to
indemnify the Company and the Selling Stockholders against certain liabilities,
including liabilities under the Securities Act. Pursuant to Registration Rights
Agreements, the Selling Stockholders have agreed to indemnify the Underwriters
and the Company and its officers, directors and control persons against certain
liabilities.
ITEM 16. EXHIBITS AND FINANCIAL SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement dated June , 1997, among Big Flower Press
Holdings, Inc., the Selling Stockholders and the Underwriters.
*4.1 Restated Certificate of Incorporation of Big Flower Press Holdings, Inc. filed on
December 19, 1995.(1)
*4.2 Certificate of Designation Preferences and Rights of Series A Junior Preferred
Stock of Big Flower Press Holdings, Inc.(1)
*4.3 Amended and Restated Bylaws of Big Flower Press Holdings, Inc.(1)
5.1 Opinion as to validity of the Shares.
*23.1 Consent of Counsel (included in Exhibit 5.1).
*23.2 Consent of Deloitte & Touche LLP.
*24.1 Power of Attorney (included as part of the Signature Page of this Registration
Statement).
</TABLE>
- ------------------------
* Previously filed.
(1) Incorporated by reference to Big Flower Press Holdings, Inc. Form 10-Q, for
the quarterly period ended December 31, 1995 (File # 1-14084).
ITEM 17. UNDERTAKINGS
1. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
2. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the
II-2
<PAGE>
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being offered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
3. For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
4. For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on this 9th day of June,
1997.
BIG FLOWER PRESS HOLDINGS, INC.
BY: /s/ R. THEODORE AMMON
---------------------------------------
R. Theodore Ammon
Chairman
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ --------------------------- -------------------
/s/ R. THEODORE AMMON Chairman and Director June 9, 1997
- ------------------------------ (Principal Executive
R. Theodore Ammon Officer)
* President, Chief Executive June 9, 1997
- ------------------------------ Officer and Director
Edward T. Reilly
* Executive Vice President June 9, 1997
- ------------------------------ and
Richard L. Ritchie Chief Financial Officer
(Principal Financial and
Accounting Officer)
* Director June 9, 1997
- ------------------------------
Leon D. Black
* Director June 9, 1997
- ------------------------------
Peter G. Diamandis
* Director June 9, 1997
- ------------------------------
Robert M. Kimmitt
* Director June 9, 1997
- ------------------------------
Joan D. Manley
* Director June 9, 1997
- ------------------------------
Newton N. Minow
* Director June 9, 1997
- ------------------------------
Edward M. Yorke
- ------------------------
<TABLE>
<S> <C> <C> <C>
*By: /s/ R. THEODORE AMMON
--------------------------------------
R. Theodore Ammon
ATTORNEY-IN-FACT
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE NO.
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<C> <S> <C>
1.1 Form of Underwriting Agreement dated June , 1997, among Big Flower Press Holdings, Inc.,
the Selling Stockholders and the Underwriters.
*4.1 Restated Certificate of Incorporation of Big Flower Press Holdings, Inc. filed on December
19, 1995.(1)
*4.2 Certificate of Designation Preferences and Rights of Series A Junior Preferred Stock of Big
Flower Press Holdings, Inc.(1)
*4.3 Amended and Restated Bylaws of Big Flower Press Holdings, Inc.(1)
5.1 Opinion as to validity of the Shares.
*23.1 Consent of Counsel (included in Exhibit 5.1).
*23.2 Consent of Deloitte & Touche LLP.
*24.1 Power of Attorney (included as part of the Signature Page of this Registration Statement).
</TABLE>
- ------------------------
* Previously filed.
(1) Incorporated by reference to Big Flower Press Holdings, Inc. Form 10-Q, for
the quarterly period ended December 31, 1995 (File # 1-14084).
<PAGE>
Exhibit 1.1
BIG FLOWER PRESS HOLDINGS, INC.
COMMON STOCK
(PAR VALUE $.01 PER SHARE)
------------
UNDERWRITING AGREEMENT
June , 1997
Goldman, Sachs & Co.
Bear, Stearns & Co., Inc.
Alex. Brown & Sons Incorporated
Credit Suisse First Boston Corporation,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "SELLING
STOCKHOLDERS") of Big Flower Press Holdings, Inc., a Delaware corporation
(the "COMPANY") severally propose, subject to the terms and conditions stated
herein, to sell to the Underwriters named in Schedule I hereto (the
"UNDERWRITERS") an aggregate of 5,000,000 shares of common stock (the "FIRM
SHARES"), par value $.01 per share (the "STOCK"), of the Company and, at the
election of the Underwriters, Apollo Big Flower Partners, L.P. ("APOLLO")
proposes, subject to the terms and conditions stated herein, to sell up to an
aggregate of 750,000 additional shares (the "OPTIONAL SHARES") of 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").
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-3 (File
No. 333- 27375) including all pre-effective amendments thereto, if
any (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
<PAGE>
delivered to you for each of the other Underwriters, and, excluding
exhibits thereto but including all documents incorporated by reference
in the prospectus contained therein, 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 will become effective upon filing,
no other document with respect to the Initial Registration
Statement or document incorporated by reference therein has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and, to the knowledge of the
Company, no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included
in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "PRELIMINARY
PROSPECTUS"; the various parts of the Initial Registration Statement
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including (A) the information contained in the
form of final prospectus filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof
and deemed by virtue of Rule 430A under the Act to be part of the
Initial Registration Statement at the time it was declared effective
or such part of the Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective, each as amended at the time such part
of the registration statement became effective and (B)the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective, are hereinafter collectively called the
"REGISTRATION STATEMENT"; such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called
the "PROSPECTUS"; and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
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<PAGE>
amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be;
and any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement);
(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 promulgated 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 a Selling Stockholder expressly for
use in the preparation of the answers therein to Item 7 of Form S-3;
(iii) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied in all material respects to
the requirements of the Act and the rules and regulations of the
Commission promulgated thereunder, and none of such documents
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, in the light of the circumstances under which they
were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will comply in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
promulgated thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter through Goldman, Sachs & Co. expressly for use therein
or by a Selling Stockholder expressly for use therein;
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<PAGE>
(iv) The Registration Statement complies, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will comply, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission promulgated thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in the case of the Prospectus and any amendment or
supplement thereto only, in the light of the circumstances under which
they were made; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein or by a Selling Stockholder expressly for
use in the preparation of answers therein to Item 7 of Form S-3;
(v) Neither the Company nor any of the subsidiaries listed
on Annex I (the "SIGNIFICANT SUBSIDIARIES") has sustained since the
date of the latest financial statements included or incorporated by
reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree which would be material to the
Company and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus or reserved for as disclosed
in the Company's financial statements incorporated by reference in
the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock
exceeding $1,000,000 or increase in the long-term debt (other than
accretion or scheduled repayments thereof) of the Company and its
subsidiaries taken as a whole or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business or consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
4
<PAGE>
(vi) The Company and its Significant Subsidiaries have
good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned
by them and material to the conduct of the business of the
Company and its subsidiaries taken as a whole, 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
Significant Subsidiaries material to the conduct of the
business are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material
and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its
subsidiaries taken as a whole;
(vii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with 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 in the State of New York,
the only jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification; and
each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(viii) On the date hereof, the Company has an authorized
capitalization as set forth in the Prospectus under the
caption "DESCRIPTION OF CAPITAL STOCK," and all of the issued
shares of capital stock of the Company outstanding on the date
hereof have been duly and validly authorized and issued, are
fully paid and non-assessable and all of the issued shares of
capital stock of each Significant Subsidiary of the Company
have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances,
equities or claims in each case other than liens,
encumbrances, equities or claims relating to indebtedness
and/or other liabilities of the Company and its subsidiaries
which are set forth or contemplated in the Prospectus;
(ix) The compliance by the Company with all of the
provisions of this Agreement and the consummation by the
Company of the transactions herein contemplated will not
5
<PAGE>
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
material agreement or instrument to which the Company or any
of its Significant Subsidiaries is a party or by which the
Company or any of its Significant Subsidiaries is bound or to
which any of the material property or assets of the Company or
any of its Significant Subsidiaries is subject, nor will such
action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their
material properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court
or governmental agency or body is required for the sale of the
Shares, or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under
the Act of the Shares and such consents, approvals,
authorizations, registrations, orders or qualifications as
have been or will be obtained at or prior to the First Time of
Delivery (as hereinafter defined) or as may be required under
state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the
Underwriters;
(x) Neither the Company nor any of its Significant
Subsidiaries is in violation of its Certificate of
Incorporation or Bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties
may be bound, which violation or default would be material to
the Company and its subsidiaries taken as a whole;
(xi) The statements set forth in the Prospectus under the
captions "Business--Environmental Matters"; "Description of
Capital Stock"; and "Underwriting," insofar as they purport to
summarize certain provisions of the laws and documents
described therein, are in all material respects accurate
summaries of such provisions in each case as such provisions
are or were in effect on the date of such statements;
6
<PAGE>
(xii) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its Significant
Subsidiaries is a party or of which any property of the
Company or any of its Significant Subsidiaries is the subject
which, if determined adversely to the Company or any of its
Significant Subsidiaries, would individually or in the
aggregate have a material adverse effect on (a) the current
consolidated financial position, stockholders' equity or
results of operations of the Company and its Significant
Subsidiaries taken as a whole (the "Current Financial
Position") or (b) the Current Financial Position after giving
effect to such adverse determination, if any, and, to the best
of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(xiii) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "INVESTMENT
COMPANY" or an entity "CONTROLLED" by an "INVESTMENT COMPANY,"
as such terms are defined in the Investment Company Act of
1940, as amended (the "INVESTMENT COMPANY ACT");
(xiv) Deloitte & Touche LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the
rules and regulations of the Commission promulgated
thereunder; and
(xv) The Shares have been listed on the New York Stock
Exchange (the "EXCHANGE").
(b) Each of the Selling Stockholders severally and not jointly represents
and warrants to, and agrees with, each of the Underwriters and the Company
that:
(i) Assuming the truth and accuracy of the Company's
representations set forth in Section 1(a)(i), 1(a)(ii),
1(a)(iii) and 1(a)(iv), all consents, approvals,
authorizations and orders necessary for the execution and
delivery by an attorney-in-fact appointed pursuant to the
power of attorney referred to below (each an
"ATTORNEY-IN-FACT") on behalf of such Selling Stockholder of
this Agreement, the power of attorney (the "POWER"), custody
agreement (the "CUSTODY AGREEMENT"), instructions or other
similar documents or arrangements reasonably satisfactory to
you (the "AUTHORIZATION DOCUMENTS") and for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder have been obtained, (except such as may be required
under state securities or Blue Sky or foreign laws in
connection with the purchase and distribution of such Shares
by the Underwriters, as to which the Selling Stockholder makes
no representation or warranty); and such Selling Stockholder
has full right, power and authority to enter into this
Agreement and the Authorization Documents and to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder;
7
<PAGE>
(ii) Assuming the truth and accuracy of the Company's
representations set forth in Section 1(a)(i), 1(a)(ii),
1(a)(iii) and 1(a)(iv), the sale of the Shares to be sold by
such Selling Stockholder hereunder and the compliance by such
Selling Stockholder with all of the provisions of this
Agreement and the Authorization Documents and the consummation
by such Selling Stockholder of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder is bound, or to which any of
the material property or assets of such Selling Stockholder is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of
such Selling Stockholder if such Selling Stockholder is a
corporation, or the Partnership Agreement of such Selling
Stockholder if such Selling Stockholder is a partnership, or
the trust documents of such Selling Stockholder if such
Selling Stockholder is a trust, or any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over such Selling Stockholder or the
property of such Selling Stockholder; provided that no
representation is made with respect to the requirements under
foreign laws or state securities or Blue Sky law;
(iii) Such Selling Stockholder has, and immediately prior
to each Time of Delivery(as hereinafter defined), if
applicable, assuming the truth and accuracy of the Company's
representation set forth in Section 1(a)(i), 1(a)(ii),
1(a)(iii) and 1(a)(iv), such Selling Stockholder will have,
good and valid title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims, and, upon delivery of such
Shares and payment therefor pursuant hereto, good and valid
title to such Shares, free and clear of all liens,
encumbrances, equities or claims will pass to the several
Underwriters;
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(iv) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of
the Prospectus, if such Selling Stockholder holds any shares
of Stock or any security of the Company after completion of
the Offerings, such Selling Stockholder shall not offer, sell,
contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are
substantially similar to the Shares, including but not limited
to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than (A) pursuant to
employee stock option plans existing on, or upon the
conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement,(B)
private transfers to affiliates of such Selling Stockholder
and pledges of such securities to one or more lenders,
provided such affiliate or lender, as the case may be, agrees
to be bound by the provisions of this clause 1(b)(iv) and (C)
in the event of the death of Mr. Robert Samans, any offer,
sale, contract to sell or transfer by the executor of Mr.
Samans' estate), without the prior written consent of Goldman,
Sachs & Co.;
(v) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or
resale of the Shares;
(vi) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto with respect
to such Selling Stockholder are made in reliance upon and in
conformity with written information furnished to the Company
by such Selling Stockholder expressly for use therein, such
Preliminary Prospectus and the Registration Statement did, and
the Prospectus and any further amendments or supplements to
the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case
may be, will, with respect to such information, 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, in the case of any
Preliminary Prospectus, the Prospectus and any amendment or
supplement thereto, in the light of the circumstances under
which they were made, and such information will be accurate in
all material respects;
(vii) In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Tax
Equity and Fiscal Responsibility Act of 1982 with respect to
the transactions herein contemplated, such Selling Stockholder
will deliver to you prior to or at each Time of Delivery (as
hereinafter defined), if applicable, 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); and
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(viii) The obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the
death or incapacity of any individual Selling Stockholder or,
in the case of an estate or trust, by the death or incapacity
of any executor or trustee or the termination of such estate
or trust, or in the case of a partnership or corporation, by
the dissolution of such partnership or corporation, or by the
occurrence of any other event; if any individual Selling
Stockholder or any such executor or trustee should die or
become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should
be dissolved, or if any other such event should occur, before
the delivery of such Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of
the Selling Stockholders in accordance with the terms and
conditions of this Agreement and of the Authorization
Documents.
2. Subject to the terms and conditions herein set forth,(a) each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at a purchase price per Share of
$ , the number of Firm Shares (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying the aggregate number of Firm Shares
to be sold by each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from all of the Selling Stockholders hereunder, and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Shares as provided below, Apollo agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from Apollo at the purchase price per share set forth in
clause 2(a), 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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Apollo hereby grants to the Underwriters the right to purchase at their
election up to 750,000 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering over-allotments
in the sale of the Firm Shares. Any such election to purchase Optional Shares
may be exercised only by written notice from you to the Company and Apollo
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 Company and Apollo otherwise agree in writing, no earlier
than two or later than ten New York Business Days (as hereinafter defined)
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
definitive form, and registered in such names as Goldman, Sachs & Co.
may request upon at least forty-eight hours' prior notice to the Selling
Stockholders, shall be delivered by or on behalf of the applicable
Selling Stockholders to Goldman, Sachs & Co., through the facilities
of the Depository Trust Company ("DTC") for the account of
such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire transfer or certified or
official bank check or checks, payable to the order of The Bank of New York (the
"CUSTODIAN") in immediately available (same day) funds. The applicable Selling
Stockholder 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 with respect thereto at the offices of DTC or its designated
custodian (the "DESIGNATED OFFICE"). The time and date of such delivery and
payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on , 1997 or such other time and date as Goldman, Sachs & Co.
and the Company may agree upon in writing, and, with respect to the Optional
Shares, 9:30 a.m., New York City time, on the date specified by 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., the Company and Apollo 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(j) hereof, will be delivered at the offices of Davis Polk
& Wardwell, 450 Lexington Avenue, New York, New York 10017 (the "CLOSING
LOCATION"), and the Shares will be delivered at the Designated Office, all at
such Time of Delivery. A meeting will be held at the Closing Location at 2:00
p.m., New York City time, on the New York Business Day next preceding such Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Agreement, "NEW YORK BUSINESS DAY" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably 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 43OA(a)(3) or 424(b) under the Act; to make no
further amendment or any supplement to the Registration Statement or Prospectus
which shall be reasonably 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 with as many copies thereof as you may reasonably
request; to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; 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;
(b) If the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act;
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<PAGE>
(c) 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 reasonably 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;
(d) Prior to 12:00 p.m. (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 event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act to notify you and
upon your request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as you
may reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Shares at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many copies as
you may reasonably request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations thereunder (including, at the option of
the Company, Rule 158 under the Act);
(f) During the period beginning from the date hereof and continuing to and
including the date 90 days after the date of the Prospectus, not to offer, sell,
contract to sell or otherwise dispose of or register for sale, except as
provided hereunder, any securities of the Company that are substantially similar
to the Shares, including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities without the prior written consent of
Goldman, Sachs & Co. (other than (i) pursuant to employee stock option or other
employee stock plans described in the Prospectus,(ii) upon the conversion or
exchange of convertible or exchangeable securities outstanding as of the date of
this Agreement,(iii) pursuant to the Company's Rights Plan and (iv) registration
of shares of Common Stock for sale provided that the parties whose shares are
being registered for sale agree to be bound by the restrictions set forth above
in this paragraph);
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(g) To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the effective
date of the Registration Statement), consolidated summary financial information
of the Company and its subsidiaries for such quarter in reasonable detail; and
(h) 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 stockholders, and to deliver
to you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and
(ii) such additional public information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its stockholders generally or to the Commission).
6. The Company covenants and agrees with each of the Selling Stockholders
and the several Underwriters that 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
reproducing any Blue Sky Memorandum, closing documents (including compilations
thereof), agreement among underwriters, this Agreement, power of attorney and
underwriters' questionnaire; (iii) all reasonable expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey; (iv) the filing fees
incident to securing any required review by the NASD of the terms of the sale of
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<PAGE>
the Shares; (v) the cost of preparing stock certificates; (vi) the cost and
charges of any transfer agent or registrar; (vii) any fees and expenses of
counsel for Selling Stockholders; and (viii) all other reasonable costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. Except to the extent paid
or reimbursed by the Company (including, without limitation, pursuant to
agreements between the Company and the Selling Stockholders deemed not to be
amended hereby), each Selling Stockholder will pay or cause to be paid all costs
and expenses incident to the performance of such Selling Stockholder's
obligations hereunder which are not otherwise specifically provided for in this
Section, including (i) any fees and expenses of Attorneys-in-Fact and the
Custodian for such Selling Stockholder and any counsel in addition to the
counsel for the Selling Stockholders referred to in (vii) above and (ii) all
expenses and taxes incident to the sale and delivery of the Shares to be sold by
such Selling Stockholder to the Underwriters hereunder. In connection with
clause (ii) of the preceding sentence, Goldman, Sachs & Co. agrees to pay New
York State stock transfer tax, and such Selling Stockholder 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
Stockholders shall not be required to pay or to reimburse the Company for, the
cost of any other matters not directly relating to the sale and purchase of the
Shares by the Selling Stockholders pursuant to this Agreement, and that except
as provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of their respective 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
p.m., Washington, D.C. time, on the date of this Agreement; no
stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with or withdrawn to your reasonable satisfaction;
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(b) Davis Polk & Wardwell, counsel for the Underwriters,
shall have furnished to you such opinion or opinions (a draft of
each such opinion is attached as Annex II hereto), dated such
Time of Delivery, to the effect set forth in Annex II hereto,
as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to
pass upon such matters;
(c) Sullivan & Cromwell, special counsel for the Company,
shall have furnished to you their written opinion or opinions
(a draft of each such opinion is attached as Annexes III-A and
III-B hereto), dated such Time of Delivery, in form and
substance reasonably satisfactory to you, to the effect set
forth in Annexes III-A and III-B hereto;
(d) Irene B. Fisher, Vice President and Associate General
Counsel of the Company, shall have furnished to you her
written opinion (a draft of which opinion is attached as Annex
IV hereto) dated such Time of Delivery, in form and substance
reasonably satisfactory to you to the effect set forth in
Annex IV hereto;
(e) The respective counsel for each of the Selling
Stockholders, as indicated in Schedule II hereto, each shall
have furnished to you their written opinion (drafts of such
opinions are attached as Annexes V-A, V-B and V-C hereto) with
respect to each of the applicable Selling Stockholders for
whom they are acting as counsel, dated the applicable Time of
Delivery, in form and substance reasonably satisfactory to
you, to the effect set forth in Annexes V-A, V-B and V-C hereto;
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time,
on the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this
Agreement and also at each Time of Delivery, Deloitte & Touche
LLP 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 VI
hereto respectively (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex
VI 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 VI hereto);
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(g) (i) Neither the Company nor any of its Significant
Subsidiaries shall have sustained since the date of the latest
financial statements included or incorporated by reference in
the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree which would be material
to the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus
or reserved for as disclosed in the Company's financial
statements incorporated by reference in this Prospectus, and
(ii) since the respective dates as of which information is
given in the Prospectus there shall not have been any change
in the capital stock exceeding $1,000,000 or increase in the
long-term debt (other than accretion or scheduled repayments
thereof) of the Company and its subsidiaries taken as a whole
or any change, or any development involving a prospective
change, in or affecting the business or consolidated financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause 7(g)(i) or
7(g)(ii), is in your judgment 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;
(h) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities
by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications,
its rating of any of the Company's debt securities;
(i) 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 Exchange or on the
National Association of Securities Dealers Automated Quotation
System; (ii) a suspension or material limitation in trading in
the Company's securities on the Exchange; (iii) a general
moratorium on commercial banking activities declared by either
Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or
war, if the effect of any such event specified in this Clause
7(i)(iv) that in the your judgment 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;
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(j) The Company and the applicable Selling Stockholders
shall have furnished or caused to be furnished to you at such Time
of Delivery certificates of officers of the Company and the
applicable Selling Stockholders reasonably satisfactory to you
as to the accuracy of the representations and warranties of
the Company and the applicable Selling Stockholders,
respectively, herein at and as of such Time of Delivery, as to
the performance by the Company and the applicable Selling
Stockholders of all of their respective obligations hereunder
to be performed at or prior to such Time of Delivery, and the
Company shall have furnished or caused to be furnished to you
certificates as to the matters set forth in subsections 7(a)
and 7(g) and as to such other matters as you may reasonably
request;
(k) The Company shall have used its reasonable best efforts
to comply with the provisions of Section 5(d) hereof with respect
to the furnishing of prospectuses on the New York Business Day
next succeeding the date of this Agreement; and
(l) You shall have received agreements not to sell or
otherwise dispose of securities of the Company substantially
in the form attached as Annex VII hereto of the Company's
agreement in Section 5(f) hereof from R. Theodore Ammon and
the other directors and executive officers of the Company.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and, subject to subsection 8(d) below, will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through Goldman, Sachs & Co.
expressly for use therein.
(b) Each Selling Stockholder severally and not jointly will
indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information relating to
such Selling Stockholder furnished to the Company by such
Selling Stockholder expressly for use therein, PROVIDED that
such amount shall not exceed the total gross proceeds received
by such Selling Stockholder from the Offerings; and, subject
to subsection 8(d) below, 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.
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(c) Each Underwriter will indemnify and hold harmless the
Company and each Selling Stockholder against any losses,
claims, damages or liabilities to which the Company or such
Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement or 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, subject to subsection 8(d)
below, will reimburse the Company and such Selling Stockholder
for any legal or other expenses reasonably incurred by the
Company and each Selling Stockholder in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection 8(a), 8(b), or 8(c) above of notice of the
commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified,
19
<PAGE>
to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable
costs of investigation, provided, however, that the
indemnifying parties shall not, in connection with any one
such action or proceeding or separate but substantially
similar actions or proceedings arising out of the same general
allegations, be liable for the fees and expenses of more than
one separate firm of attorneys at any time for all indemnified
parties, except to the extent that local counsel, in addition
to its regular counsel, is required in order to effectively
defend against such action or proceeding. No indemnifying
party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or
an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection 8(a), 8(b), or 8(c) above in respect of
any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other from the offering
of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice
required under subsection 8(d) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to
20
<PAGE>
reflect not only such relative benefits but also the relative
fault of the Company and the Selling Stockholders on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Selling
Stockholders bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the
Shares purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
Company or the Selling Stockholders on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the
Selling Stockholders and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this
subsection 8(e) were determined by PRO RATA allocation (even
if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above
in this subsection 8(e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to
above in this subsection 8(e) shall be deemed to include any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this subsection 8(e), (i) no Underwriter shall
be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by
it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and
(ii) no Selling Stockholder shall be required to contribute
any amount in excess of the amount by which the initial public
offering price of the Shares sold by such Selling Stockholder
to the Underwriters exceeds the amount of any damages which
such Selling Stockholder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection 8(e) to
contribute are several in proportion to their respective
underwriting obligations and not joint.
21
<PAGE>
(f) The obligations of the Company and the Selling
Stockholders under this Section 8 shall be in addition to any
liability which the Company and the respective Selling
Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall
be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company
or any Selling Stockholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the applicable Selling Stockholders shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
reasonably satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the applicable
Selling Stockholders that you have so arranged for the purchase of such Shares,
or the applicable Selling Stockholders notify you that they have so arranged for
the purchase of such Shares, you or the Company 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 applicable Selling Stockholders as
provided in subsection 9(a) above, the aggregate number of
such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be
purchased at such Time of Delivery, then the applicable
Selling Stockholders shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares
which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share
(based on the number of Shares which such Underwriter agreed
to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
22
<PAGE>
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or
Underwriters by you and the applicable Selling Stockholders as
provided in subsection 9(a) above, the aggregate number of
such Shares which remains unpurchased exceeds one-eleventh of
the aggregate number of all the Shares to be purchased at such
Time of Delivery, or if the applicable Selling Stockholders
shall not exercise the right described in subsection 9(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 Apollo
to sell the Optional Shares) shall thereupon terminate,
without liability on the part of any non-defaulting
Underwriter or the Company or the applicable Selling
Stockholders, except for the expenses to be borne by the
Company, the applicable Selling Stockholders and the
Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or any of the Selling Stockholders, or any
officer or director or controlling person of the Company or any controlling
person of any Selling Stockholders, and shall survive delivery of and payment
for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor any Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof;
but, if for any other reason, any Shares are not delivered by or on
behalf of the Selling Stockholders as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations
for the purchase, sale and delivery of the Shares not so delivered,
but the Company and the Selling Stockholders shall then be under no further
liability to any Underwriter in respect of the Shares not so delivered except as
provided in Sections 6 and 8 hereof.
23
<PAGE>
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; and in all dealings with any Selling Stockholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Stockholder made or given by any
or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department, Facsimile No: 212-357-0926; if to any Selling Stockholder, shall be
delivered or sent by mail, telex, or facsimile transmission to counsel for such
Selling Stockholder at its address set forth in Schedule II hereto; and if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: General Counsel; provided, however, that any notice to an Underwriter
pursuant to Section 8(d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company and the Selling Stockholders by you upon
request. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company, any Selling Stockholder and each person who controls the Company, any
Selling Stockholder or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "BUSINESS DAY" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the
same instrument.
24
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
each of the Selling Stockholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he or she has been duly
appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly
existing and binding Power of Attorney which authorizes such Attorney-in-Fact to
take such action.
Very truly yours,
Big Flower Press Holdings, Inc.
By:
-----------------------------
Name: Irene B. Fisher
Title: Vice President and
Associate General Counsel
Apollo Big Flower Partners, L.P.
BT Investment Partners, Inc.
Sebastian Carcioppollo
Robert A. Samans
John G. Bugnitz Revocable Living
Trust
By:
-----------------------------
Name:
Title:
As Attorney-in-Fact on behalf of each
of the Selling Stockholder named in
Schedule II to this Agreement
25
<PAGE>
Accepted as of the date hereof:
Goldman, Sachs & Co.
By:
--------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
26
<PAGE>
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- ------------------ ------------------
Goldman, Sachs & Co......................
Bear, Stearns & Co. Inc..................
Alex. Brown & Sons Incorporated..........
Credit Suisse First Boston Corporation...
--------- --------
Total....................... 5,000,000 750,000
--------- --------
--------- --------
<PAGE>
SCHEDULE II
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
---------------- -------------------
The Selling Stockholders:
Apollo Big Flower Partners, L.P(a).........
BT Investment Partners, Inc(b).............
Sebastian Carcioppollo(c)..................
Robert A. Samans(c)........................
John G. Bugnitz Revocable Living Trust(c)..
--------- -------
Total........................ 5,000,000 750,000
--------- -------
--------- -------
- -------------------------
(a) Represented by Paul, Hastings, Janofsky & Walker.
(b) Represented by Salvatore Palazzolo (for purposes of providing the opinion
required hereunder only).
(c) Represented by Sullivan & Cromwell (for purposes of providing the opinions
required hereunder only).
<PAGE>
ANNEX I
LIST OF SIGNIFICANT SUBSIDIARIES
Treasure Chest Advertising Company, Inc.
PrintCo., Inc.
Webcraft Technologies, Inc.
Scanforms, Inc.
Laser Tech Color, Inc.
<PAGE>
ANNEX II
OPINION OF DAVIS POLK & WARDWELL
1. The Company is validly existing and in good standing under the laws of
the State of Delaware, with corporate power and corporate authority to own
its properties and to conduct its business as described in the Prospectus.
2. The Company has duly authorized, executed and delivered the
Underwriting Agreements.
3. The statements set forth in the Prospectus under the caption
"DESCRIPTION OF CAPITAL STOCK," and "UNDERWRITING" insofar as such statements
constitute summaries of certain legal matters and documents referred to
therein fairly present the information called for with respect to such legal
matters and documents and fairly summarize the legal matters and documents
referred to therein.
4. Such counsel is of the opinion that the Registration Statement and the
Prospectus (except for the financial statements and schedules and other
financial data therein, as to which such counsel is not called upon to
express an opinion) comply as to form in all material respects with the
requirements of the Securities Act and the rules and regulations thereunder
and such counsel has no reason to believe that (a) the Registration Statement
(except for the financial statements and schedules and other financial data
included therein as to which we are not called upon to express a belief) as
of the date it was declared effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
or (b) the Prospectus (except as stated) as of its date contained, or as of
the Time of Delivery contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In giving the opinion set forth in paragraph 4 above, such counsel may state
that the opinion is based on participation in the preparation of the
Registration Statement and Prospectus but is not otherwise subject to
independent check or verification.
<PAGE>
ANNEX III-A
OPINION OF SULLIVAN & CROMWELL
1. The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus.
2. The Company has an authorized capitalization as set forth in the
Prospectus, and all outstanding shares of the Company's Common Stock,
including the Shares, have been duly authorized and validly issued and are
fully paid and non-assessable.
3. All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of the
United States and the laws of the State of New York for the issuance, sale
and delivery of the Shares by the Selling Shareholders to the Underwriters.
4. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
Such opinion will state that it is limited to the Federal laws of the United
States, the laws of the State of New York and the General Corporation Law of
the State of Delaware and that such counsel is expressing no opinion as to
the effect of the laws of any other jurisdiction.
Such opinion will also state that such counsel have relied as to certain
matters on information obtained from public officials, officers of the
Company and other sources believed by them to be responsible, and they have
assumed that the certificates for the outstanding shares of Common Stock,
including the Shares, conform to the specimen thereof examined by them and
have been duly countersigned by a transfer agent and duly registered by a
registrar of the Common Stock and that the signatures on all documents
examined by them are genuine, assumptions which they have not independently
verified.
<PAGE>
ANNEX III-B
REPRESENTATION LETTER OF SULLIVAN & CROMWELL
As special counsel to the Company, such counsel reviewed the Registration
Statement and the Prospectus, participated in discussions with
representatives of the Underwriters and those of the Company and its
accountants and advised the Company as to the requirements of the Act and the
applicable rules and regulations thereunder. Between the effectiveness of
the Registration statement and the time of the delivery of this letter, such
counsel participated in further discussion with representatives of the
Company and its accountants regarding the contents of certain portions of the
Prospectus and certain related matters, reviewed certain records of the
Company relating to the proceedings of its Board of Directors, certificates
of certain officers of the Company and of the Selling Stockholders and legal
opinions from other counsel to the Company. On the basis of the information
that such counsel gained in the course of the performance of the services
referred to above, considered in the light of such counsel's understanding of
the applicable law (including the requirements of Form S-3 and the character
of the prospectus contemplated thereby) and the experience such counsel have
gained through their practice under the Act, such counsel confirm to you
that, in their opinion, the Registration Statement, as of its effective date,
and the Prospectus, as of the date of the Prospectus, appeared on their face
to be appropriately responsive in all material respects to the requirements
of the Act and the applicable rules and regulations of the Commission
thereunder. Further, nothing that came to such counsel's attention in the
course of such review has caused such counsel to believe that the
Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. Also, nothing that has come to such counsel's attention in the
course of the procedures described in the second sentence of this paragraph
has caused them to believe that the Prospectus, as of the date and time of
delivery of this letter, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration
process are such, however, that such counsel do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus except for those made under the
captions "Description of Capital Stock" and "Underwriting " in the Prospectus
insofar as they relate to provisions of documents therein described. Also,
such counsel do not express any opinion or belief as to the financial
statements or other financial data contained in the registration Statement or
the Prospectus.
<PAGE>
ANNEX IV
OPINION OF IRENE B. FISHER, ESQ.
1. The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so as to require such qualification, or is subject to no material liability
or disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the opinion
in this clause upon opinions of local counsel and in respect of matters of
fact upon certificates of officers of the Company, provided that such counsel
shall state that they believe that both you and they are justified in relying
upon such opinions and certificates);
2. Each subsidiary of the Company identified on Annex I hereto (each, a
"Significant Subsidiary") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and (except for directors' qualifying shares)
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company or
its subsidiaries, provided that such counsel shall state that they believe
that both you and she are justified in relying upon such opinions and
certificates);
3. 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 Significant Subsidiaries is a party or of
which any property of the Company or any of its Significant Subsidiaries is
the subject which, if determined adversely to the Company or any of its
Significant Subsidiaries, would individually or in the aggregate have a
material adverse effect on (a) the current consolidated financial position,
stockholder's equity or results of operation of the Company and its
Significant Subsidiaries taken as a whole (the "Current Financial Position")
or (b) the Current Financial Position after giving effect to such adverse
determination, if any; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others (such counsel being entitled to rely in respect of the
opinion in this clause upon discussions and meetings with the executive
officers and other personnel of the Company responsible for matters of the
type discussed herein, review of documents furnished to such counsel by the
Company and, as to matters of fact, on certificates of appropriate officials
of the Company, such counsel having made no other inquiries, investigations
or any search of the public docket or records of any court or public
governmental authority);
<PAGE>
4. The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions 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 material agreement or material instrument
known to such counsel to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the material property or material
assets of the Company or any of its Significant Subsidiaries is subject, nor
will such compliance or consummation result in any violation of the
provisions of the Restated Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their material
properties.
5. The Company is not an "investment company" or an entity "controlled" by
an "investment company", as such terms are defined in the Investment Company
Act;
6. The documents incorporated by reference in 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 schedule
therein, as to which such counsel need express no opinion), when they were
filed with the Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder; and such counsel has no reason to believe
that any of such documents, when such documents were so filed, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed,
not misleading; and
7. Although such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, such counsel 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 related schedules therein, 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, the Prospectus (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of such
Time of Delivery, either the Registration Statement or the Prospectus or any
further amendment or
2
<PAGE>
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) contains an untrue
statement of a material fact 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 such counsel does not know of any
amendment to the Registration Statement required to be filed or of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by reference
or described as required.
3
<PAGE>
ANNEX V-A
OPINION OF SULLIVAN & CROMWELL
(Special Counsel to the Individual Selling Stockholders)
1. Each [Specified] Selling Shareholder's power (as such term is defined)
has been duly executed and delivered by such [Specified] Selling Shareholder
and constitutes a valid and legally binding agreement of such [Specified]
Selling Shareholder enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles. Such counsel expresses no opinion,
however, with respect to the indemnification provisions of any Power to the
extent such provisions are invalid or unenforceable under applicable law
because they violate public policy.
2. Each [Specified] Selling Shareholder's Custody Agreement (as such term
is defined in the Underwriting Agreement) has been duly executed and
delivered by such [Specified] Selling Shareholder and constitutes a valid and
legally binding agreement of such [Specified] Selling Shareholder enforceable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. Such counsel expresses no opinion, however, with respect
to the indemnification provisions of any Custody Agreement to the extent such
provisions are invalid or unenforceable under applicable law because they
violate public policy.
3. The Underwriting Agreement has been duly executed and delivered on
behalf of each [Specified] Selling Shareholder by an Attorney-in-Fact.
4. Insofar as New York law is concerned, upon payment for and delivery of
the Shares in the State of New York pursuant to the Underwriting Agreement,
the Underwriters will have acquired the Shares free of any adverse claim
within the meaning of Section 8-302 of the New York Uniform Commercial Code
(the "Code"). For the purpose of this paragraph (4), such counsel has
assumed, with the Underwriters' approval and without any investigation, that
when such delivery and payment occur, (a) the Underwriters will have
purchased the Shares in good faith and without notice of any adverse claim
within the meaning of Section 8-302 of the Code, (b) the Shares will have
been registered in the underwriters' name or in the name of The Depository
Trust Company ("DTC") or a nominee designated by DTC, in each case on the
Company's share registry in accordance with its certificate of incorporation,
its by-laws and Delaware law, and (c) in the case of any Shares registered in
the name of DTC or a nominee thereof, DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the Code, DTC or such
<PAGE>
nominee, as the case may be, will have acquired possession of and control
over the certificates evidencing such Shares in New York and appropriate
entries to the Underwriters' account on the records of DTC will have been
made pursuant to the Code.
Such opinion will be limited to the Federal laws of the United States and
the laws of the State of New York, and such counsel will express no opinion
as to the effect of the laws of any other jurisdiction.
Such opinion may also state that with the Underwriters' approval, such
counsel has relied as to certain matters on information obtained from public
schools, officers of the Company, the [Specified] Selling Shareholders and
other sources believed by such counsel to be responsible , and such counsel
has assumed, without any investigation (i) that each of the [Specified]
Selling Shareholders has the legal competence and capacity to execute,
deliver and perform his or her obligations under his or her Power and Custody
Agreement and under the Underwriting Agreement, (ii)that each [Specified]
Selling Shareholder's Custody Agreement has been duly authorized, executed
and delivered by The Bank of New York, as Custodian under such
agreement,(iii) that the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and the underwriters,(iv) that the
Registration Statement and the Prospectus (as such terms are defined in the
Underwriting Agreement) do not contain any material misstatements or
omissions and (v) that the signatures on all documents examined by such
counsel are genuine.
2
<PAGE>
ANNEX V-B
Opinion of Salvatore Palazzolo, Esq.
1. BTIP's Power (as such term is defined in the Underwriting Agreement)
has been duly executed and delivered by BTIP and constitutes a valid and
legally binding agreement of BTIP enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. Such counsel expresses
no opinion, however, with respect to the indemnification provisions of any
Power to the extent such provisions are invalid or unenforceable under
applicable law because they violate public policy.
2. BTIP's Custody Agreement (as such term is defined in the Underwriting
Agreement) has been duly executed and delivered by BTIP and constitutes a
valid and legally binding agreement of BTIP enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles. Such
counsel expresses no opinion, however, with respect to the indemnification
provisions of any Custody Agreement to the extent such provisions are invalid
or unenforceable under applicable law because they violate public policy.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by BTIP.
4. The execution, delivery and performance of the Underwriting Agreement
and the consummation of the transactions therein contemplated will not result
in a breach or violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over BTIP or any
of its properties or the certificate of incorporation or by-laws of BTIP; and
5. Insofar as New York law is concerned, upon payment for and delivery of
the Shares in the State of New York pursuant to the Underwriting Agreement,
the Underwriters will have acquired the Shares free of any adverse claim
within the meaning of Section 8-302 of the New York Uniform Commercial Code
(the "Code"). For the purpose of this paragraph (5), such counsel has
assumed, with the Underwriters' approval and without any investigation, that
when such delivery and payment occur, (a) the Underwriters will have
purchased the Shares in good faith and without notice of any adverse claim
within the meaning of Section 8-302 of the Code, (b) the Shares will have
been registered in the Underwriters' name or in the name of The Depository
Trust Company ("DTC") or a nominee designated by DTC, in each case on the
Company's share registry in accordance with its certificate of incorporation,
its by-laws and Delaware law, and (c) in the case of any Shares registered in
the
<PAGE>
name of DTC or a nominee thereof, DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the Code, DTC or such
nominee, as the case may be, will have acquired possession of and control
over the certificates evidencing such Shares in New York and appropriate
entries to the Underwriters' account on the records of DTC will have been
made pursuant to the Code; and
6. All regulatory consents, authorizations, approvals and filings
required to be obtained or made by BTIP under the Federal laws of the United
States and the laws of the State of New York for the sale and delivery of the
Shares to be sold by BTIP to the Underwriters have been obtained or made;
Such counsel will express no opinion as to any matters governed by any law
other than the law of the Sate of New York and, to the extent specified in
such opinion, the Federal laws of the United States. Such counsel will
express no opinion concerning the securities or blue sky laws, rules and
regulations of any jurisdiction or the rules and regulations of any
jurisdiction.
Such opinion may also state that with the Underwriters' approval such
counsel has relied as to certain matters on information obtained from public
officials, officers of the Company, BTIP and other sources believed by such
counsel to be responsible, and such counsel has assumed, without any
investigation, (i) that BTIP's Custody Agreement has been duly authorized,
executed and delivered by The Bank of New York, as Custodian under such
agreement, (ii) that the Registration Statement and the Prospectus (as such
terms are defined in the Underwriting Agreement) do not contain any material
misstatements or omissions and (iii) that the signatures on all documents
examined by such counsel are genuine.
2
<PAGE>
ANNEX V-C
Opinion of Paul, Hastings, Janofsky & Walker LLP
1. Apollo's Power (as such term is defined in the Underwriting Agreement)
has been duly executed and delivered by Apollo and constitutes a valid and
legally binding agreement of Apollo enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. Such counsel expresses
no opinion, however, with respect to the indemnification provisions of any
Power to the extent such provisions are invalid or unenforceable under
applicable law because they violate public policy.
2. Apollo's Custody Agreement (as such term is defined in the Underwriting
Agreement) has been duly executed and delivered by Apollo and constitutes a
valid and legally binding agreement of Apollo enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles. Such
counsel expresses no opinion, however, with respect to the indemnification
provisions of any Custody Agreement to the extent such provisions are invalid
or unenforceable under applicable law because they violate public policy.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by Apollo.
4. The execution, delivery and performance of the Underwriting Agreement
and the consummation of the transactions therein contemplated will not result
in a breach or violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over Apollo or
any of its properties or the certificate of incorporation or by-laws of
Apollo; and
5. Insofar as New York law is concerned, upon payment for and delivery of
the Shares in the State of New York pursuant to the Underwriting Agreement,
the Underwriters will have acquired the Shares free of any adverse claim
within the meaning of Section 8-302 of the New York Uniform Commercial Code
(the "Code"). For the purpose of this paragraph (5), such counsel has
assumed, with the Underwriters' approval and without any investigation, that
when such delivery and payment occur, (a) the Underwriters will have
purchased the Shares in good faith and without notice of any adverse claim
within the meaning of Section 8-302 of the Code, (b) the Shares will have
been registered in the Underwriters' name or in the name of The Depository
Trust Company ("DTC") or a nominee designated by DTC, in each case on the
Company's share registry in accordance with its certificate of incorporation,
its by-laws and Delaware law, and (c) in the case of any Shares registered in
the
<PAGE>
name of DTC or a nominee thereof, DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the Code, DTC or such
nominee, as the case may be, will have acquired possession of and control
over the certificates evidencing such Shares in New York and appropriate
entries to the Underwriters' account on the records of DTC will have been
made pursuant to the Code; and
6. All regulatory consents, authorizations, approvals and filings required
to be obtained or made by Apollo under the Federal laws of the United States
and the laws of the State of New York for the sale and delivery of the Shares
to be sold by Apollo to the Underwriters have been obtained or made;
Such counsel will express no opinion as to any matters governed by any
law other than the law of the State of New York and, to the extent specified
in such opinion, the Federal laws of the United States. Such counsel will
express no opinion concerning the securities or blue sky laws, rules and
regulations of any jurisdiction.
Such opinion may also state that with the Underwriters' approval such
counsel has relied as to certain matters on information obtained from public
officials, officers of the Company, Apollo and other sources believed by such
counsel to be responsible, and such counsel has assumed, without any
investigation, (i) that Apollo's Custody Agreement has been duly authorized,
executed and delivered by The Bank of New York, as Custodian under such
agreement, (ii) that the Registration Statement and the Prospectus (as such
terms are defined in the Underwriting Agreement) do not contain any material
misstatements or omissions and (iii) that the signatures on all documents
examined by such counsel are genuine.
2
<PAGE>
ANNEX VI
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants shall
furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and incorporated by
reference in the Registration Statement or the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements, selected
financial data, and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such letter,
as indicated in their reports thereon, copies of which have been furnished to
the representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Company's Quarterly
Report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been furnished to
you; and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated financial
statements referred to in paragraph (vi)(A)(i) below comply as to form in all
material respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year agrees
with the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such five fiscal years which
were included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
<PAGE>
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis
of limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to believe
that this information does not conform in all material respects with the
minimum disclosure requirements of Items 301, 302 and 402, respectively, of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information referred
to below, a reading of the latest available interim financial statements of
the Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them to
believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly Reports
on Form 10-Q incorporated by reference in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus, for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
Clause (B) were not determined on a basis substantially
2
<PAGE>
consistent with the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(D) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated capital
stock (other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in
the latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which are described
in such letter; and
(E) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (D) there were any decreases in consolidated
net revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the Representatives,
except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(vii) In addition to the examination referred to in their report(s)
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an examination in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived from
the general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference) or
in Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by reference in
the Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
3
<PAGE>
CROSS-REFERENCE TARGET LIST
---------------------------
NOTE: DUE TO THE NUMBER OF TARGETS SOME TARGET NAMES MAY NOT APPEAR IN THE
TARGET PULL-DOWN LIST.
(This list is for the use of the wordprocessor only, is not a part of this
document and may be discarded.)
ARTICLE/SECTION TARGET NAME
- --------------- -----------
1...................... 0001
1(a)................... 0002
1(a)(i)................ 0003
1(a)(ii)............... 0004
1(a)(iii).............. 0082
1(a)(iv)............... 0005
1(a)(v)................ 0006
1(a)(vi)............... 0007
1(a)(vii).............. 0008
1(a)(viii)............. 0009
1(a)(ix)............... 0010
1(a)(x)................ 0011
1(a)(xi)............... 0012
1(a)(xii).............. 0013
1(a)(xiii)............. 0014
1(a)(xiv).............. 0016
1(b)................... 0018
1(b)(i)................ 0019
1(b)(ii)............... 0020
1(b)(iii).............. 0021
1(b)(iv)............... 0022
1(b)(v)................ 0023
1(b)(vi)............... 0024
1(b)(vii).............. 0025
1(b)(viii)............. 0027
2...................... 0028
2(a)................... 0109
2(b)................... 0110
3...................... 0029
4...................... 0030
4(a)................... 0031
4(b)................... 0032
5...................... 0033
5(a)................... 0034
5(c)................... 0035
5(d)................... 0036
5(e)................... 0037
5(f)................... 0038
5(f)(i)................ 0083
5(f)(ii)............... 0084
5(f)(iii).............. 0085
5(g)................... 0039
5(h)................... 0040
5(i)................... 0042
6...................... 0044
7...................... 0045
7(a)................... 0046
7(b)................... 0047
7(c)................... 0048
7(d)................... 0049
7(e)................... 0050
7(f)................... 0051
7(f)(i)................ 0052
7(f)(ii)............... 0111
7(g)................... 0053
7(h)................... 0054
7(h)(i)................ 0112
<PAGE>
ARTICLE/SECTION TARGET NAME
- --------------- -----------
7(h)(ii)............... 0113
7(h)(iii).............. 0114
7(h)(iv)............... 0115
7(i)................... 0055
7(j)................... 0056
7(l)................... 0058
8...................... 0059
8(a)................... 0060
8(b)................... 0061
8(c)................... 0062
8(d)................... 0063
8(e)................... 0064
8(f)................... 0065
8(g)................... 0066
8(g)(i)................ 0067
8(g)(ii)............... 0068
8(g)(iii).............. 0069
8(h)................... 0070
9...................... 0071
9(a)................... 0072
9(b)................... 0073
9(c)................... 0074
10..................... 0075
11..................... 0076
12..................... 0077
13..................... 0078
14..................... 0079
15..................... 0080
16..................... 0081
Annex II
1...................... 0086
2...................... 0087
3...................... 0088
4...................... 0089
4(a)................... 0116
4(b)................... 0117
ANNEX III
1...................... 0090
2...................... 0091
3...................... 0092
4...................... 0093
5...................... 0094
6...................... 0095
7...................... 0096
8...................... 0097
9...................... 0098
10..................... 0099
11..................... 0100
12..................... 0101
13..................... 0102
<PAGE>
ARTICLE/SECTION TARGET NAME
- --------------- -----------
14..................... 0103
ANNEX IV
1...................... 0104
2...................... 0105
3...................... 0106
4...................... 0107
5...................... 0108
<PAGE>
Exhibit 5.1
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
June 9, 1997
Big Flower Press Holdings, Inc.,
3 East 54th Street, 17th Floor,
New York, NY 10022.
Dear Sirs:
In connection with the registration under the Securities Act of 1933
(the "Act") of up to 5,750,000 shares (the "Securities") of Common Stock, par
value $.01 per share, of Big Flower Press Holdings, Inc., a Delaware
corporation (the "Company"), and related preferred stock purchase rights (the
"Rights") to be issued pursuant to the Rights Agreement, dated as of November
28, 1995 (the "Rights Agreement"), between the Company and the Bank of New
York, as Rights Agent (the "Rights Agent"), we, as your special counsel, have
examined such corporate records, certificates and other documents, and such
questions of law, as we have considered necessary or appropriate for the
purposes of this opinion. Upon the basis of such examination, we advise you
that, in our opinion:
(1) The Securities have been validly issued and are fully paid
and nonassessable.
<PAGE>
(2) Assuming that the Board of Directors of the Company, after fully
informing itself with respect to the Rights Agreement and the Rights and
after giving due consideration to all relevant matters, determined that the
execution and delivery of the Rights Agreement and the issuance of the
Rights thereunder would be in the best interests of the Company and its
shareholders, and assuming further that the Rights Agreement has been duly
authorized, executed and delivered by the Rights Agent, then the Rights
attributable to the Securities have been validly issued.
In connection with our opinion set forth in paragraph (2) above, we
note that the question whether the Board of Directors of the Company might be
required to redeem the Rights at some future time will depend upon the facts and
circumstances existing at that time and, accordingly, is beyond the scope of
such opinion.
The foregoing opinion is limited to the Federal laws of the United
States and the General Corporation Law of the State of Delaware, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement relating to the Securities and the Rights and to the
reference to us under the heading "Validity of Common Stock" in the
Prospectus. In giving such consent, we do not thereby admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Sullivan & Cromwell
