Exhibit 1(c)
Terms Agreement
(Attaching Underwriting Agreement Basic Provisions)
Dated as of
______________, 199__
between
XXXXXX & XXXXX CORPORATION
and
[Underwriters]
COMMON STOCK
$.10 per share
with Preferred Stock Purchase Rights
XXXXXX & XXXXX CORPORATION
Common Stock, par value $0.10 per share
with Preferred Stock Purchase Rights
Terms Agreement
________ __, 199_
Xxxxxx & Xxxxx Corporation
0000 X&X Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
We understand that Xxxxxx & Xxxxx Corporation (the "Company")
proposes to issue and sell $_____________ of shares of its Common Stock, par
value $.10 per share (the "Offered Common Stock"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and not jointly,
the respective number of shares of Offered Common Stock, with Preferred Stock
Purchase Rights attached, set forth below opposite their respective names at
the purchase price set forth below.
Underwriting Proceeds
Number of Discounts and to the
Underwriters Shares Purchased Commissions Company
------------------- ------------------- --------------- ----------
________________... $_____________ % $_____
________________... $_____________ % $_____
Total........ $_____________ $_________ $_____
The Offered Common Stock shall have the following terms:
Title of Offered Common Stock:
Public offering price:
Purchase price:
Current ratings: Xxxxx'x Investors Service, Inc. [ ];
Standard & Poor's Corporation [ ]
Closing date, time and
location: ____________, ______, 10:00 A.M., New York City time
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Location for checking
Offered Common Stock: New York, New York
Wire Transfer of Funds in Settlement:
Listing requirement: [None]
Redemption provisions:
Liquidation Preference:
Sinking fund requirements:
Number of Option Shares, if any, that may be
purchased by the Underwriters:
Other terms and conditions:
All provisions contained in the document attached as Annex A
hereto entitled "Xxxxxx & Xxxxx Corporation -- Common Stock -- Underwriting
Agreement Basic Provisions" (the "Basic Provisions") are hereby incorporated
by reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth
in full herein. For purposes of the Basic Provisions, references to the
"Representative" shall be deemed to refer ______________________. Terms
defined in the Basic Provisions are used herein as therein defined.
Please accept this offer by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
[UNDERWRITERS]
By: ____________________________
Name:
Title:
Acting on behalf of themselves and the
other named Underwriters
Accepted:
XXXXXX & XXXXX CORPORATION
By: _____________________________
Name:
Title:
August __, 1998
Annex A
XXXXXX & XXXXX CORPORATION
(a Tennessee Corporation)
Common Stock, par value $.10 per share,
with Preferred Stock Purchase Rights
UNDERWRITING AGREEMENT BASIC PROVISIONS
Xxxxxx & Xxxxx Corporation (the "Company"), proposes to issue
and sell $600 million of shares of its Common Stock, par value $.10 per share
(the "Common Stock"), with Preferredd Stock Purchase Rights (as defined)
attached, from time to time on terms to be determined at the time of sale (the
"Offered Common Stock").
The terms and conditions of the Preferred Stock Purchase Rights
(the "Rights") are set forth in a Rights Agreement dated as of December 3, 1997
between the Corporation and First Chicago Trust Company of New York, as Rights
Agent ("Rights Agreement").
This is to confirm the arrangements with respect to the purchase
of Offered Common Stock from the Company by the Representative and the several
Underwriters listed in the applicable terms agreement entered into between the
Representative and the Company of which this Underwriting Agreement is Annex A
thereto (the "Terms Agreement"). With respect to any particular Terms
Agreement, the Terms Agreement, together with the provisions hereof
incorporated therein by reference, is herein referred to as the "Agreement."
Terms defined in the Terms Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-________) for the registration of certain common stock and other
securities, including the Offered Common Stock, under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and has filed such amendments
thereto as may have been required to the date of the Terms Agreement. Such
registration statement, as amended, has been declared effective by the
Commission.
The Company has, pursuant to Rule 424 under the 1933 Act, filed
with, or transmitted for filing to, or shall within the required period of time
hereafter file with or transmit for filing to, the Commission a prospectus
supplement (the "Prospectus Supplement") specifically relating to the Offered
Common Stock, together with a revised and restated prospectus relating to
common stock covered by the above-referenced registration statement.
The term "Registration Statement" refers to such registration
statement in the form in which it became effective, including the exhibits
thereto and the documents incorporated by reference therein, as amended to the
date hereof. The term "Basic Prospectus" means the above-referenced revised
and restated prospectus relating to Common Stock. The term "Prospectus" means
the Basic Prospectus supplemented by the Prospectus Supplement. The term
"Preliminary Prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Common Stock together with the Basic
Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement" and "amendment" or
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that have been filed subsequent to the date of
the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act").
If the Company has filed an abbreviated registration statement
to register additional shares of Common Stock pursuant to Rule 462(b) under the
1933 Act, then any reference herein to the term "Registration Statement" shall
include such Rule 462(b) registration statement.
Section 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the Representative and
to each Underwriter named in a Terms Agreement, as of the date thereof (the
"Representation Date"), as follows:
(i) Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Tennessee, has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus; and is duly qualified to do business and is in
good standing in each jurisdiction in which such qualification is required,
except where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries considered
as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary as defined in Rule 405 of Regulation C of the 1933 Act
Regulations (each a "Significant Subsidiary") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, except
for directors' qualifying shares (except as otherwise stated in the
Registration Statement), is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. The Registration
Statement and the Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date, complied in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the rules and regulations of the Commission promulgated
thereunder. The Registration Statement, at the time it became effective and
as of the applicable Representation Date, did not and will not, contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date, did not, and will not,
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Company
in writing by an Underwriter expressly for use in the Registration Statement
or Prospectus or to those parts of the Registration Statement which constitute
Statements of Eligibility and Qualification of Trustees (Form T-1) under the
1939 Act.
No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(iv) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read together and with the
other information in the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not misleading.
(v) Accountants. The accountants who certified the financial
statements included or incorporated by reference in the Prospectus are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(vi) Financial Statements. The financial statements of the
Company included or incorporated by reference in the Prospectus and the
Registration Statement present fairly the financial position of the Company as
of the dates thereof and the results of operations, changes in common
stockholders' investment and cash flows of the Company, for the respective
periods covered thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period
involved; and the financial schedules included or incorporated by reference in
the Registration Statement meet the requirements of the 1933 Act Regulations
or the 1934 Act Regulations, as applicable.
(vii) Material Changes or Material Transactions. Except as
stated in the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company has not incurred any liabilities or obligations, direct or contingent,
or entered into any transactions which are material to the Company, and there
has not been any material adverse change in the capital stock or short-term
debt, or any material increase in long-term debt of the Company, or any
material adverse change, or any development involving a prospective material
adverse change, in the condition (financial or other), business, prospects,
net worth or results of operations of the Company and its subsidiaries
considered as one entity.
(viii) No Defaults; Regulatory Approvals. Neither the Company
nor any of its subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or any
of them or their properties may be bound.
The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate action and executed by the Company and will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any such subsidiary is a party or by which it or any of them may
be bound or to which any of the property or assets of the Company or any such
subsidiary is subject, which conflict, breach or default would have,
individually or in the aggregate with any other such instances, a material
adverse effect on the condition (financial or other), business, prospects, net
worth or results of operations of the Company and its subsidiaries considered
as one entity, nor will such action result in any material violation of the
provisions of the charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree currently in effect or
in effect at the time of execution and delivery of this Agreement and
applicable to the Company or any of its subsidiaries.
No consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, the 1933 Act Regulations or state securities
or Blue Sky laws.
(ix) Legal Proceedings; Contracts. Except for matters
described in the Prospectus (as to which the Company can express no opinion at
this time concerning the Company's liability (if any) or the effect of any
adverse determination upon the business, condition (financial or otherwise) or
operations of the Company), there is no pending, or to the best knowledge of
any financial officer of the Company, threatened action or proceeding before
any court or administrative agency which individually (or in the aggregate in
the case of any group of related lawsuits) is expected to have a material
adverse effect on the financial condition of the Company and its subsidiaries
considered as one entity.
(x) Compliance with Laws. The Company's business and
operations comply in all material respects with all laws and regulations
applicable thereto and there are no known, proposed or threatened changes in
any laws or regulations which would have a material adverse effect on the
Company or the manner in which it conducts its business. The Company
possesses all valid and effective certificates, licenses and permits required
to conduct its business as now conducted, except for instances which
individually or in the aggregate do not, or will not, have a material adverse
effect on the condition (financial or other), business, prospects or results
of operations of the Company and its subsidiaries considered as one entity.
(xi) Capital Stock. The authorized capital stock of the
Company conforms as to legal matters to the description thereof contained in
the Prospectus.
(xii) Validity of the Offered Common Stock and the Rights. The
Offered Common Stock has been duly authorized and, when issued and delivered
in accordance with the terms of this Agreement, will be validly issued, fully
paid and non-assessable, and the issuance of such shares will not be subject
to any preemptive or similar rights. The Rights have been duly authorized and,
when issued and delivered in accordance with the terms of this Agreement and
the Rights Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Rights will not be subject to any preemptive or
similar rights.
(xiii) Registration Rights. Except for matters described in the
Prospectus, there are no contracts or agreements between the Company and any
person granting such person the right to require the Company to file a
registration statement under the 1933 Act with respect to any equity securities
of the Company or to require the Company to include such securities with the
Common Stock registered pursuant to the Registration Statement.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to the Representative and the counsel for
the Underwriters in connection with an offering of the Offered Common Stock
shall be deemed a representation and warranty by the Company to each
Underwriter participating in such offering as to the matters covered thereby on
the date of such certificate unless subsequently amended or supplemented
subsequent thereto.
Section 2. Purchase and Sale.
(a) The obligations of the Underwriters to purchase, and the
Company to sell, the Offered Common Stock shall be evidenced by the Terms
Agreement. The Terms Agreement specifies the total number of shares of the
Offered Common Stock, the names of the Underwriters participating in the
offering and the number of shares each Underwriter severally has agreed to
purchase, the purchase price to be paid by the Underwriters for the Offered
Common Stock, the public offering price and any terms of the Offered Common
Stock not already specified (including, but not limited to, designations,
current ratings, listing requirements, redemption provisions, liquidation
preference and sinking fund requirements).
The several commitments of the underwriters to purchase Offered
Common Stock pursuant to the Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein set forth.
(b) Subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the Terms Agreement relating thereto, an
option to the Underwriters, severally and not jointly, to purchase additional
shares of Common Stock to cover over-allotments, if any (the "Option Shares").
If the Terms Agreement so provides, the Underwriters may purchase up to the
amount of Option Shares set forth therein at the same price per share as is
applicable to the Offered Common Stock. As used herein, the term "Offered
Common Stock" shall include Option Shares. Such option, if granted, will
expire 30 days after the date of this Agreement, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering of the Offered Common Stock
upon notice by the Representative to the Company setting forth the number of
Option Shares as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option Shares.
Any such time and date of delivery shall be determined by the
Representative, but shall not be later than four business days and not be
earlier that two business days after the exercise of said option, nor in any
event prior to Closing Time, unless otherwise agreed upon by the
Representative and the Company.
If the option is exercised as to all or any portion of the
Option Shares, each Underwriter, acting severally and not jointly, will
purchase that proportion of the total number of Option Shares then being
purchased which the number of shares of Offered Common Stock each such
Underwriter has agreed to purchase as set forth in the Terms Agreement bears
to the total number of shares of Offered Common Stock, subject to such
adjustments as the Representative shall make to eliminate any sales or
purchases of fractional shares of Common Stock.
(c) Payment of the purchase price for any Offered Common Stock to
be purchased by the Underwriters shall be made to the Company at either the
Company's offices in Memphis, Tennessee or the office of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Representative and the Company, at 10:00
A.M., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 10) following the date of the Terms
Agreement or at such other date, time or location specified in the Terms
Agreement, or as otherwise shall be agreed upon by the Representative and the
Company (such time and date being referred to as a "Closing Time").
Certificates for the Offered Common Stock shall be in
definitive form and registered in such names and in such denominations as the
Representative shall request in writing at least two business days prior to
the Closing Time. Delivery of the Offered Common Stock shall be made to the
Underwriters as specified in the Terms Agreement against payment by such
Underwriters of the purchase price thereof to the Company (or such other
person as the Company may direct) by wire transfer of immediately available
funds. Such Offered Common Stock will be made available for examination and
packaging by you in New York, New York, on or before the first business day
prior to the Closing Time or at such other time and place specified in the
Terms Agreement.
(d) The Company hereby agrees that, without the prior consent of
the Underwriters, it will not, during the period ending [30 days] after the
date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or (ii)
enter into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (i) above or this (ii) is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise.
The foregoing sentence shall not apply to (A) the Offered Common
Stock to be sold hereunder, or (B) the issuance by the Company of shares of
Common Stock, (i) upon the exercise of an employee stock option outstanding
on the date hereof under any of the Company's stock incentive plans, (ii) in
connection with any of the Company's employee benefit plans or (iii) in
connection with the Company's on-going acquisition program.
Section 3. Covenants of the Company.
The Company covenants with the Representative and with each
other Underwriter as follows:
(a) Prospectus Supplement. Immediately following the execution of
this Agreement, the Company will prepare a Prospectus Supplement in connection
with the offering of the Offered Common Stock. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 of the 1933 Act Regulations.
(b) Notice of Certain Events. The Company will notify the
Representative promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement relating
in any way to the offer and sale of the Offered Common Stock, (iv) of any
request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose.
(c) Notice of Certain Proposed Filings. The Company will give
Representative notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment or supplement to the Prospectus, and
will furnish the Representative with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be.
(d) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Representative as many signed and conformed copies
of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as the
Representative may reasonably request. The Company will furnish to the
Representative as many copies of the Prospectus (as amended or supplemented)
as the Representative shall reasonably request so long as the Underwriters are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Offered Common Stock.
(e) Revisions of Prospectus -- Material Changes. If at any time
when the Prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Common Stock any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion of
counsel for the Company, to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in
the reasonable opinion of such counsel, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations the Company
will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act, the 1933 Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with such
requirements.
(f) Earnings Statements. The Company will make generally available
to its security holders as soon as practicable after the close of the period
covered thereby, an earnings statement (in form complying with the provisions
of Rule 158 under the 0000 Xxx) covering each twelve-month period beginning,
in each case, not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of the
Registration Statement with respect to each sale of Offered Common Stock.
(g) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Offered Common Stock for
offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate, and will
maintain such qualifications in effect for so long as may be required for the
distribution of the Offered Common Stock; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation or to subject itself to taxation as doing
business in any jurisdiction in which it is not otherwise required to be so
qualified. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the shares of Offered
Common Stock have been qualified as provided above.
(h) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act.
Section 4. Payment of Expenses.
The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including:
(i) the preparation and filing of the Registration Statement
and all amendments thereto, the Preliminary Prospectus, if any, and the
Prospectus and any amendments or supplements thereto;
(ii) the filing of this Agreement;
(iii) the preparation, issuance, printing and delivery of the
Offered Common Stock;
(iv) the reasonable fees and disbursements of the Company's
accountants and counsel, and of the transfer agent;
(v) the qualification of the Offered Common Stock under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey; and
(vi) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments or
supplements thereto;
(vii) costs and expenses related to the issuance and delivery
of the Offered Common Stock to the Underwriters; and
(viii) fees and expenses incident to listing of the Offered
Common Stock on the New York Stock Exchange.
If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or clause (i) of Section 9 hereof,
the Company shall reimburse upon demand the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters that shall have been incurred by the Underwriters
in connection with the proposed purchase and sale of the Offered Common Stock.
Section 5. Conditions of Underwriters' Obligation.
The several obligations of the Underwriters to purchase the Offered
Common Stock pursuant to the Terms Agreement will be subject at all times to
the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements contained therein, or
in the Terms Agreement, on its part to be performed and observed and to the
following additional conditions precedent:
(a) Stop Order; Ratings Change; etc. At the Closing Time, (i) no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, (ii) the rating assigned as of the date of this
Agreement by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g) under the 1933 Act
Regulations, to any debt securities of the Company shall not have been lowered
since the execution of this Agreement nor shall any such rating organization
have publicly announced that it has placed any debt securities of the Company
on what is commonly termed a "watch list" for possible downgrading, and (iii)
there shall not have come to the attention of the Representatives any facts
that would cause the Representative to believe that the Prospectus, including
the Prospectus Supplement, at the time it was required to be delivered to a
purchaser of the Offered Common Stock, 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 existing at such
time, not misleading.
(b) Legal Opinions. At the Closing Time, the Representative shall
have received the following documents:
(1) Opinion of Company Counsel. The opinion of the Vice
President-General Counsel and Secretary of the Company or the Assistant
Secretary and Corporate Counsel, dated as of such date, in form and substance
reasonably satisfactory to the Representative, to the effect as set forth in
Exhibit A.
(2) Opinion of Counsel to the Underwriters. The opinion of
__________________________________, counsel to the Underwriters, with respect
to such matters as the Representative may reasonably request.
(c) Officer Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition (financial or otherwise) of the Company, or in the earnings or
business affairs of the Company; and the Representative shall have received a
certificate of any Vice President of the Company, dated as of the Closing
Time, to the effect (i) that there has been no such material adverse change,
(ii) that the other representations and warranties of the Company contained in
Section 1 are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, except to the extent
that such representations and warranties expressly relate to an earlier date or
later date (in which case such representations and warranties are true and
correct on and as of such earlier date or will be true and correct on and as of
such later date, as the case may be), (iii) that the Company has made or
caused to be made any required filing of the Prospectus pursuant to Rule
424(b) in the manner and within the time period required by Rule 424(b), and
(iv) that the Company has complied with all material agreements and satisfied
all material conditions on its part to be performed or satisfied at or prior
to the date of such certificate. The officer signing and delivering this
certificate may rely upon the best of his or her knowledge as to proceedings
threatened.
(d) Comfort Letter. At the time of the execution of the Terms
Agreement and at the Closing Time, the Representative shall have received a
letter from KPMG Peat Marwick LLP or their successors as the Company's
independent accountants (the "Independent Accountants"), dated as of the date
of the Terms Agreement and of the Closing Time, as the case may be, in form
and substance satisfactory the Representative to the effect that:
(i) they are independent public accountants within the
meaning of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion the Company's financial statements and
schedules included or incorporated by reference in the Registration Statement
and Prospectus and covered by their reports included or incorporated therein
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the 1934 Act Regulations, as the case may be;
(iii) they have conducted reviews of the unaudited interim
consolidated financial information of the Company included in the Company's
Quarterly Reports on Form 10-Q incorporated in the Registration Statement and
Prospectus in compliance with the standards for such reviews promulgated by
the American Institute of Certified Public Accountants;
(iv) on the basis of a reading of the financial statements and
schedules of the Company included or incorporated in the Prospectus and the
Registration Statement, and the latest available unaudited interim financial
statements of the Company, inquiries of officials of the Company responsible
for financial and accounting matters, and other specified procedures and
inquiries, nothing has come to their attention that caused them to believe
that:
(A) the unaudited financial statements of the Company
included or incorporated in the Prospectus and the Registration Statement do
not comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act and
the 1934 Act Regulations thereunder, as the case may be, or that such
unaudited financial statements are not presented fairly in conformity with
generally accepted accounting principles;
(B) with respect to the period subsequent to the date
of the most recent financial statements incorporated in the Registration
Statement and the Prospectus, as of a specified date not more than five
business days prior to the date of delivery of such letter, there has been any
change in the common or preferred stock or long-term debt of the Company or,
as of such date, there has been any decrease in assets or common stockholders'
investment, in each case as compared with amounts shown in the most recent
consolidated balance sheet of the Company included or incorporated in the
Registration Statement and the Prospectus, except in each case for changes or
decreases which the Prospectus discloses have occurred or may occur or which
are described in such letter; or
(C) for the period from the date of the most recent
financial statements incorporated in the Registration Statement and the
Prospectus to such specified date, there was any decrease in operating
revenues, operating income, income before taxes or net income of the Company
in each case as compared with the comparable period of the preceding year,
except in each case for decreases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
(v) in addition to their audit referred to in their reports
included or incorporated by reference in the Registration Statement and the
Prospectus and the reviews, inquiries and procedures referred to in clauses
(iii) and (iv) above, such letter shall state that KPMG Peat Marwick LLP has
performed other specified procedures, with respect to certain numerical data
and information included or incorporated in the Registration Statement and the
Prospectus, as are requested by the Representative and specified in such
letter and have found such data and information to be in agreement with the
accounting records of or analyses prepared by the Company.
(e) Other Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Offered Common Stock as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment
of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Offered Common Stock as
herein contemplated shall be satisfactory in form and substance to the
Representative.
(f) "Lock-up". The "lock-up" agreements, each substantially in the
form of Exhibit B hereto, between the Underwriters and certain stockholders,
officers and directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered
to the Representatives on or before the date hereof, shall be in full force and
effect on the Closing Date.
Section 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, arising out of any untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or the
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of or
based upon any untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto) or the omission therefrom of a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, to the extent of the aggregate amount paid in settlement
of any litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever arising out of or
based upon any such untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever arising out of or based upon any such
untrue statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto),
or made in reliance upon the Statements of Eligibility and Qualification of
Trustees (Form T-1) under the 1939 Act filed as exhibits to the Registration
Statement; and provided, further, that the foregoing indemnity agreement, with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Common Stock, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Common Stock to such person, and if the Prospectus (as
so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriters through the
Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of
more than one counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 6 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters of
each offering of Offered Common Stock shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by said indemnity agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus in respect of such offering bears to the initial public offering
price appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Offered Common Stock.
Section 9. Termination of Agreement.
The Representative may terminate this Agreement, immediately upon
notice to the Company, at any time prior to the Closing Time if: (i) there has
been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings or business
affairs of the Company, (ii) there shall have occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or
crisis, the effect of which shall be such as to make it, in your judgment of
the Representative, impracticable to market the Offered Common Stock or enforce
contracts for the sale of the Offered Common Stock, or (iii) trading in any
securities of the Company shall have been suspended by the Commission or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by either federal or New York
authorities.
In the event of any termination of this Agreement, the covenant set
forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity
and contribution agreements set forth in Sections 6 and 7 hereof, and the
provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One Underwriter.
If any Underwriter shall fail at the Closing Time to purchase the
Offered Common Stock which it is obligated to purchase hereunder (the
"Defaulted Securities"), and the aggregate amount of Defaulted Securities is
not more than one-tenth of the aggregate amount of the Offered Common Stock to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the amount of the Offered Common Stock set forth
opposite their respective names in Schedule I hereto bears to the aggregate
amount of Offered Common Stock set forth opposite the names of all such
non-defaulting underwriters to purchase the Defaulted Securities; provided that
in no event shall the amount of Defaulted Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased by an amount in
excess of one-ninth of such amount of Offered Common Stock without the written
consent of such Underwriter. If the aggregate amount of Defaulted Securities
is more than one-tenth of the aggregate amount of the Offered Common Stock to
be purchased on the Closing Date, and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Defaulted Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriters or the
Company.
No action taken pursuant to this Section shall relieve a defaulting
Underwriter from liability in respect of its default under this Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements.
Section 11. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed, delivered by an express
courier service or transmitted by any facsimile communication. Notices to the
Underwriters shall be directed to the Representative at the address specified
in the Terms Agreement, with copies thereof directed to [Designated
Underwriters' counsel]. Notices to the Company shall be directed to it at 0000
X&X Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: Vice President-Finance and
Treasurer, with copies thereof directed to the Legal Department of the Company
at 0000 X&X Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention:
Vice-President-General Counsel and Secretary.
Section 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Company and any Underwriter who becomes a party hereto and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto their respective successors and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Offered Common Stock from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
Section 13. Governing Law.
This Agreement and the rights and obligations of the parties created
hereby and thereby shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in such state. Any suit, action or proceeding brought by the Company against
an Underwriter in connection with or arising under this Agreement shall be
brought solely in the state or federal court of appropriate jurisdiction
located in the Borough of Manhattan, The City of New York.
Exhibit A
Form of Opinion of Company Counsel
----------------------------------
____________, ______
[UNDERWRITERS]
Re: Xxxxxx & Xxxxx Corporation
Common Stock (the "Offered Common Stock")
-----------------------------------------
Ladies and Gentlemen:
This opinion is directed to the Underwriters pursuant to
Section 5(b)(1) of the Underwriting Agreement Basic Provisions and the Terms
Agreement (of which the Underwriting Agreement Basic Provisions is Annex A
thereto) dated ________________, 199__ (collectively, the "Underwriting
Agreement"), among the Company and you, with respect to the offer and sale of
the Offered Common Stock with the Preferred Stock Purchase Rights attached.
All terms defined or used in the Underwriting Agreement have the same meaning
when used herein, unless otherwise noted.
I am Vice President-General Counsel and Secretary of the Company
and have acted as such in connection with the Offered Common Stock and the
Underwriting Agreement. I or attorneys under my supervision have made such
examination and investigation as we have deemed necessary in order to give the
following opinion.
Based on the foregoing, it is my opinion that:
(i) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Tennessee and has
full corporate power and authority under such laws to own its properties and to
conduct its business as described in the Prospectus; the Company is duly
qualified to do business and is in good standing in each jurisdiction in which
it owns or leases real property or in which the conduct of its business
requires such qualification, except for such instances which in the aggregate
will not have a material adverse effect on the Company;
(ii) Each subsidiary of the Company which is a significant
subsidiary as defined in Rule 405 of Regulation C of the 1933 Act Regulations
(each a "Significant Subsidiary") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement, and, to the best of my knowledge, is duly qualified to
do business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued and is fully paid and non-assessable, and all of such capital
stock, except for directors' qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity;
(iii) Except for matters described in the Prospectus (as to which I
can express no opinion at this time concerning the Company's liability (if
any) or the effect of any adverse determination upon the business, condition
(financial or otherwise) or operations of the Company), there is no pending,
or to my knowledge, threatened action or proceeding before any court or
administrative agency which individually (or in the aggregate in the case of
any group of related lawsuits) is expected to have a material adverse effect
on the financial condition of the Company;
(iv) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(v) The Offered Common Stock has been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such shares
will not be subject to any preemptive or similar rights. The Preferred Stock
Purchase Rights have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement and the Rights Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such Rights
will not be subject to any preemptive or similar rights.
(vi) The Company possesses all permits, approvals, franchises and
other rights which are requisite for the conduct of its business as described
in the Prospectus or for the actions contemplated by the Underwriting Agreement
and the offering contemplated by the Prospectus;
(vii) I have reviewed or caused to be reviewed by attorneys under my
supervision the Registration Statement, the Prospectus and each amendment and
supplement thereto (including the documents incorporated by reference) and
have no reason to believe that, as of their respective effective or issue
dates, as of the date of the Terms Agreement or as of the Closing Time, either
the Registration Statement or the Prospectus or any such amendment or
supplement (or any such documents incorporated by reference) 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;
(viii) I do not know of any statute or regulation or legal or
governmental proceeding required to be described in the Prospectus which is
not described as required, nor of any contract or document of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which is not described and
filed as required; and the descriptions in the Registration Statement and the
Prospectus of the contracts and other documents therein described are accurate
and fairly present the information required to be shown;
(ix) The execution and delivery by the Company of the Underwriting
Agreement and the consummation by the Company of the transactions herein and
therein contemplated and compliance with the terms of the Underwriting
Agreement do not and will not conflict with or result in a breach of any of the
terms of the Charter or By-laws of the Company, and will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan, credit or note
agreement, lease or other agreement or instrument material to the Company to
which the Company is a party or by which it or any or its properties are
bound, or any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, having
jurisdiction over the Company or any of its properties;
(x) No authorization, approval, consent or license of any
regulatory body or authority (other than under the 1933 Act and the securities
or Blue Sky laws of the various states) is required for the valid
authorization, issuance, sale and delivery of the Offered Common Stock as
herein contemplated or the valid authorization, execution, delivery and
performance by the Company of the Underwriting Agreement or the consummation
by the Company of the transactions contemplated herein or therein, or, if so
required, all such authorizations, approvals, consents and licenses,
specifying the sale, have been obtained and are in full force and effect;
(xi) The Registration Statement has become effective under the 1933
Act and, to the best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under the
1933 Act; the Registration Statement and the Prospectus, and each amendment
or supplement thereto (except for the financial statements and schedules
included therein, as to which I express no opinion), comply as to form in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and, as to documents incorporated therein, to the requirements of
the 1934 Act and the 1934 Act Regulations in effect at the time such documents
were filed with the Commission; and
(xii) The Underwriting Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting enforcement of creditors'
rights or by general equity principles and subject to any principles of public
policy limiting the right to enforce the indemnification and contribution
provisions contained in Sections 6 and 7 of the Underwriting Agreement.
In rendering the foregoing opinion, we have assumed that (i) all
signatures on all documents examined by us are genuine and that where any such
signature (other than a signature purporting to have been made on behalf of
the Company) purports to have been made in a corporate, governmental,
fiduciary or other capacity, the person who affixed such signature had the due
authority to do so, (ii) certain factual matters contained in certificates of
public officials are accurate, true and correct, and (iii) photostat copies of
such documents, records and certificates conform to the originals.
This opinion is intended solely for the benefit of the
Underwriters and is not to be relied on by, and no copies of it are to be
delivered to, any other person without my prior written consent, except that
Underwriters' counsel may rely upon this opinion as to all matters of
Tennessee law in rendering its opinion of even date herewith. I am not
assuming any professional responsibility to any other person by rendering this
opinion. It is understood that this opinion speaks as of the date given,
notwithstanding any delivery as contemplated above on any other date.
Very truly yours,
Exhibit B
[Form of Lock-up Letter]
_____________, 199__
[UNDERWRITERS]
[ADDRESS]
Ladies and Gentlemen:
The undersigned understands that the Underwriters propose to
enter into an underwriting agreement (the "Underwriting Agreement") with
Xxxxxx & Xxxxx Corporation, a Tennessee corporation (the "Company"), providing
for the public offering (the "Public Offering") by the several Underwriters,
(the "Underwriters"), of ______ shares (the "Shares") of the Common Stock par
value $.10 per share of the Company (the "Common Stock") with Preferred Stock
Purchase Rights attached.
To induce the Underwriters that may participate in the Public
Offering to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior consent of the Underwriters,
it will not, during the period commencing on the date hereof and ending 30
days after the date of the Prospectus relating to the Public Offering (the
"Prospectus"), (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock (whether such
shares or any such securities are now owned by the undersigned or are
hereafter acquired), or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in
clause (1) above or in this (2) is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise.
The foregoing sentence shall not apply to: (i) the sale of any
Shares to the Underwriters pursuant to the Underwriting Agreement, (ii) gifts,
(iii) stock grants in connection with the Company's benefit plans, (iv) the
exercise of a stock option under any of the Company's stock incentive plans
and (v) the sale of any shares in connection with the Company's acquisition
program. In addition, the undersigned agrees that, without the prior consent
of the Underwriters, it will not, during the period commencing on the date
hereof and ending 30 days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any shares of
Common Stock or any security convertible into or exercisable or exchangeable
for Common Stock.
Whether or not the Public Offering actually occurs depends on a
number of factors, including market conditions. Any Public Offering will only
be made pursuant to an Underwriting Agreement, the terms of which are subject
to negotiation between the Company and the Underwriters.
Very truly yours,
______________________________
(Name)
______________________________
(Address)
