Exhibit (1)
National Research Corporation
Shares Common Stock 1
Underwriting Agreement
_______________, 1997
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxx X. Xxxxx & Co. Incorporated
As Representatives of the Several
Underwriters Named in Schedule A
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. Introductory. National Research Corporation
("Company") a Nebraska corporation, has an authorized capital stock
consisting of ______ shares of Preferred Stock, $________ par value, of
which ______ shares were outstanding as of ____________, 19___ and
________ shares, $____ par value, of Common Stock ("Common Stock"), of
which ________ shares were outstanding as of such date. The Company
proposes to issue and sell _______ shares of its authorized but unissued
Common Stock, and a shareholder of the Company (referred to as the
"Selling Shareholder" and named in Schedule B) propose to sell ______
shares of the Company's issued and outstanding Common Stock to the several
underwriters named in Schedule A as it may be amended by the Pricing
Agreement hereinafter defined ("Underwriters"), who are acting severally
and not jointly. Collectively, such total of ________ shares of Common
Stock proposed to be sold by the Company and the Selling Shareholder is
hereinafter referred to as the "Firm Shares." In addition, the Selling
Shareholder proposes to grant to the Underwriters an option to purchase up
to ______ additional shares of Common Stock ("Option Shares") as provided
in Section 5 hereof. The Firm Shares and, to the extent such option is
exercised, the Option Shares, are hereinafter collectively referred to as
the "Shares."
You have advised the Company and the Selling Shareholder that the
Underwriters propose to make a public offering of their respective
portions of the Shares as soon as you deem advisable after the
registration statement hereinafter referred to becomes effective, if it
has not yet become effective, and the Pricing Agreement hereinafter
defined has been executed and delivered.
_________________
1 Plus an option to acquire up to ____ additional shares to cover
allotments.
Prior to the purchase and public offering of the Shares by the
several Underwriters, the Company, the Selling Shareholder and the
Representatives, acting on behalf of the several Underwriters, shall enter
into an agreement substantially in the form of Exhibit A hereto ("Pricing
Agreement"). The Pricing Agreement may take the form of an exchange of
any standard form of written telecommunication between the Company, the
Selling Shareholder and the Representatives and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering
of the Shares will be governed by this Agreement, as supplemented by the
Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate
the Pricing Agreement.
The Company and the Selling Shareholder hereby confirm their
agreements with the Underwriters as follows:
SECTION 2. Representations and Warranties of the Company. The
Company represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-2 (File No. 33-_______)
and a related preliminary prospectus with respect to the Shares have
been prepared and filed with the Securities and Exchange Commission
("Commission") by the Company in conformity with the requirements of
the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "1933 Act;" unless
indicated to the contrary, all references herein to specific rules
are rules promulgated under the 0000 Xxx); and the Company has so
prepared and has filed such amendments thereto, if any, and such
amended preliminary prospectuses as may have been required to the
date hereof and will file such additional amendments thereto and such
amended prospectuses as may hereafter be required. There have been
or will promptly be delivered to you three signed copies of such
registration statement and amendments, three copies of each exhibit
filed therewith, and conformed copies of such registration statement
and amendments (but without exhibits) and of the related preliminary
prospectus or prospectuses and final forms of prospectus for each of
the Underwriters.
Such registration statement (as amended, if applicable) at the
time it becomes effective and the prospectus constituting a part
thereof (including the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) and/or Rule 434), as from time to time
amended or supplemented, are hereinafter referred to as the
"Registration Statement," and the "Prospectus," respectively, except
that if any revised prospectus shall be provided to the Underwriters
by the Company for use in connection with the offering of the Shares
which differs from the Prospectus on file at the Commission at the
time the Registration Statement became or becomes effective (whether
or not such revised prospectus is required to be filed by the Company
pursuant to Rule 424(b)), the term Prospectus shall refer to such
revised prospectus from and after the time it was provided to the
Underwriters for such use. If the Company elects (subject to your
comment) to rely on Rule 434 of the 1933 Act, subject to your
consent, all references to "Prospectus" shall be deemed to include,
without limitation, the form of prospectus and the term sheet, taken
together, provided to the Underwriters by the Company in accordance
with Rule 434 of the 1933 Act ("Rule 434 Prospectus"). Any
registration statement (including any amendment or supplement thereto
or information which is deemed part thereof) filed by the Company
under Rule 462(b) ("Rule 462(b) Registration Statement") shall be
deemed to be part of the "Registration Statement" as defined herein,
and any prospectus (including any amendment or supplement thereto or
information which is deemed part thereof) included in such
registration statement shall be deemed to be part of the
"Prospectus", as defined herein, as appropriate. The Securities
Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder are hereinafter collectively referred to as
the "Exchange Act."
(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each
preliminary prospectus has conformed in all material respects with
the requirements of the 1933 Act and, as of its date, has not
included any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein not
misleading; and when the Registration Statement became or becomes
effective, and at all times subsequent thereto, up to the First
Closing Date or the Second Closing Date hereinafter defined, as the
case may be, the Registration Statement, including the information
deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b), if applicable, and the
Prospectus and any amendments or supplements thereto, contained or
will contain all statements that are required to be stated therein in
accordance with the 1933 Act and in all material respects conformed
or will in all material respects conform to the requirements of the
1933 Act, and neither the Registration Statement nor the Prospectus,
nor any amendment or supplement thereto, included or will include any
untrue statement of a material fact or omitted or will omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that the
Company makes no representation or warranty as to information
contained in or omitted from any preliminary prospectus, the
Registration Statement, the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in the
preparation thereof.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of place of
incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
the Company is duly qualified to do business as a foreign corporation
under the corporation law of, and are in good standing as such in,
each jurisdiction in which it owns or leases substantial properties,
has an office, or in which substantial business is conducted and such
qualification is required except in any such case where the failure
to so qualify or be in good standing would not have a material
adverse effect upon the Company; and no proceeding of which the
Company has knowledge has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
(d) The Company does not have any subsidiaries, is not a party
to any joint venture and is not a partner in any partnership.
(e) The issued and outstanding shares of capital stock of the
Company as set forth in the Prospectus have been duly authorized and
validly issued, are fully paid and nonassessable, and conform to the
description thereof contained in the Prospectus. Except as disclosed
in the Registration Statement, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or liens related to or entitling any
person to purchase or otherwise to acquire any share of the capital
stock of, or other ownership interest in, the Company or its
business.
(f) The Shares to be sold by the Company have been duly
authorized and when issued, delivered and paid for pursuant to this
Agreement, will be validly issued, fully paid and nonassessable, and
will conform to the description thereof contained in the Prospectus.
(g) The making and performance by the Company of this Agreement
and the Pricing Agreement have been duly authorized by all necessary
corporate action and will not violate any provision of the Company's
charter or bylaws and will not result in the breach, or be in
contravention, of any provision of any agreement, franchise, license,
indenture, mortgage, deed of trust, or other instrument to which the
Company is a party or by which the Company or any of its property may
be bound or affected, or any order, rule or regulation applicable to
the Company of any court or regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or any
of its properties, or any order of any court or governmental agency
or authority entered in any proceeding to which the Company was or is
now a party or by which it is bound. No consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the
execution and delivery of this Agreement or the Pricing Agreement or
the consummation of the transactions contemplated herein or therein,
except for compliance with the 1933 Act and blue sky laws applicable
to the public offering of the Shares by the several Underwriters and
clearance of such offering with the National Association of
Securities Dealers, Inc. ("NASD"). This Agreement has been duly
executed and delivered by the Company.
(h) The accountants who have expressed their opinions with
respect to certain of the financial statements and schedules included
in the Registration Statement are independent accountants as required
by the 1933 Act.
(i) The financial statements and schedules of the Company
included in the Registration Statement present fairly the financial
position of the Company as of the respective dates of such financial
statements, and the results of operations and cash flows of the
Company for the respective periods covered thereby, all in conformity
with generally accepted accounting principles consistently applied
throughout the periods involved, and the supporting schedules
included in the Registration Statement present fairly the information
required to be stated therein. The financial information set forth
in the Prospectus under "Selected Consolidated Financial Data"
presents fairly on the basis stated in the Prospectus, the
information set forth therein. The pro forma financial information
included in the Prospectus present fairly the information shown
therein, have been prepared in accordance with generally accepted
accounting principles and the Commission's rules and guidelines with
respect to pro forma financial information, have been properly
compiled on the pro forma basis described therein, and, in the
opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate under the circumstances.
(j) The Company is not in violation of its charter or in
default under any consent decree, or in default with respect to any
material provision of any lease, loan agreement, franchise, license,
permit or other contract obligation to which it is a party; and there
does not exist any state of facts which constitutes an event of
default as defined in such documents or which, with notice or lapse
of time or both, would constitute such an event of default, in each
case, except for defaults which neither singly nor in the aggregate
are material to the Company.
(k) There are no legal or governmental proceedings pending, or
to the Company's knowledge, threatened to which the Company is or may
be a party or of which material property owned or leased by the
Company is or may be the subject, or related to environmental or
discrimination matters which are not disclosed in the Prospectus, or
which question the validity of this Agreement or the Pricing
Agreement or any action taken or to be taken pursuant hereto or
thereto.
(l) There are no holders of securities of the Company having
rights to registration thereof, preemptive rights or rights of first
refusal to purchase Common Stock.
(m) The Company has good and marketable title to all the
properties and assets reflected as owned in the financial statements
hereinabove described (or elsewhere in the Prospectus), subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except
those, if any, reflected in such financial statements or which are
not material to the Company and its subsidiaries taken as a whole.
The Company holds its leased properties under valid and binding
leases.
(n) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Shares.
(o) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as
contemplated by the Prospectus, the Company has not incurred any
material liabilities or obligations, direct or contingent, nor
entered into any material transactions not in the ordinary course of
business and there has not been any material adverse change in its
condition (financial or otherwise) or results of operations nor any
material change in its capital stock, short-term debt or long-term
debt.
(p) The Company agrees not to sell, contract to sell or
otherwise dispose of any Common Stock or securities convertible into
Common Stock (except Common Stock issued pursuant to currently
outstanding options, warrants or convertible securities) for a period
of 180 days after this Agreement becomes effective without the prior
written Xxxxxxx Xxxxx & Company, L.L.C. The Company has obtained
similar agreements from each of its officers and directors.
(q) There is no document of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which is not
described or filed as required.
(r) The Company owns and possesses all right, title and
interest in and to, or has duly licensed from third parties, all
patents, patent rights, trade secrets, inventions, know-how,
trademarks, trade names, copyrights, service marks and other
proprietary rights ("Trade Rights") material to the business of the
Company. The Company has not received any notice of infringement,
misappropriation or conflict from any third party as to any Trade
Rights which has not been resolved or disposed of and the Company has
not infringed, misappropriated or otherwise conflicted with Trade
Rights of any third parties, which infringement, misappropriation or
conflict would have a material adverse effect upon the condition
(financial or otherwise) or results of operations of the Company.
(s) The conduct of the business of the Company is in compliance
in all respects with applicable federal, state, local and foreign
laws and regulations, except where the failure to be in compliance
would not have a material adverse effect upon the condition
(financial or otherwise) or results of operations of the Company.
(t) All offers and sales of the Company's capital stock prior
to the date hereof were at all relevant times exempt from the
registration requirements of the 1933 Act and were duly registered
with or the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky laws.
(u) The Company has filed all necessary federal and state
income and franchise tax returns and has paid all taxes shown as due
thereon, and there is no tax deficiency that has been, or to the
knowledge of the Company might be, asserted against the Company or
any of its properties or assets that would or could be expected to
have a material adverse affect upon the condition (financial or
otherwise) or results of operations of the Company.
(v) The Company has filed a registration statement pursuant to
Section 12(g) of the Exchange Act to register the Common Stock
thereunder, has filed an application to list the Shares on the Nasdaq
National Market, and has received notification that the listing has
been approved, subject to notice of issuance or sale of the Shares,
as the case may be.
(w) The Company is not, and does not intend to conduct its
business in a manner in which it would become, an "investment
company" as defined in Section 3(a) of the Investment Company Act of
1940, as amended ("Investment Company Act").
(x) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or
has become effective with the Commission or with the Florida
Department of Banking and Finance (the "Department"), whichever date
is later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(y) The Company and its shareholders have made a valid election
pursuant to Section 1362(a) of the Internal Revenue Code of 1986, as
amended (the "Code") to be an "S-corporation" within the meaning of
Section 1361(a)(1) of the Code for all taxable periods beginning
after July 31, 1994 and no event has occurred that would result in a
termination of such election. The Company has no material federal
corporate income tax liability for the period from July 31, 1994 to
the termination of the election to be an S-corporation which shall
occur upon the First Closing.
SECTION 3. Representations, Warranties and Covenants of the
Selling Shareholder.
(a) The Selling Shareholder represents and warrants to, and
agrees with, the Company and the Underwriters that:
(i) The Selling Shareholder has, and on the First Closing
Date or the Second Closing Date hereinafter defined, as the case
may be, will have, valid marketable title to the Shares proposed
to be sold by the Selling Shareholder hereunder on such date and
full right, power and authority to enter into this Agreement and
the Pricing Agreement and to sell, assign, transfer and deliver
such Shares hereunder, free and clear of all voting trust
arrangements, liens, encumbrances, equities, claims and
community property rights; and upon delivery of and payment for
such Shares hereunder, the Underwriters will acquire valid
marketable title thereto, free and clear of all voting trust
arrangements, liens, encumbrances, equities, claims and
community property rights.
(ii) The Selling Shareholder has not taken and will not
take, directly or indirectly, any action designed to or which
might be reasonably expected to cause or result, under the
Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale
or resale of the Shares.
(iii) The Selling Shareholder has executed and
delivered a Power of Attorney ("Power of Attorney") among the
Selling Shareholder, ____________, ________________, and
______________ (the "Agents"), naming the Agents as such Selling
Shareholder's attorneys-in-fact (and, by the execution by any
Agent of this Agreement, such Agent hereby represents and
warrants that he has been duly appointed as attorney-in-fact by
the Selling Shareholder pursuant to the Power of Attorney) for
the purpose of entering into and carrying out this Agreement and
the Pricing Agreement, and the Power of Attorney has been duly
executed by the Selling Shareholder and a copy thereof has been
delivered to you.
(iv) The Selling Shareholder further represents, warrants
and agrees that he has deposited in custody, under a Custody
Agreement ("Custody Agreement") with _____________________, as
custodian ("Custodian"), certificates in negotiable form for the
Shares to be sold hereunder by the Selling Shareholder, for the
purpose of further delivery pursuant to this Agreement. The
Selling Shareholder agrees that the Shares to be sold by the
Selling Shareholder on deposit with the Custodian are subject to
the interests of the Company and the Underwriters, that the
arrangements made for such custody, and the appointment of the
Agents pursuant to the Power of Attorney, are to that extent
irrevocable, and that the obligations of the Selling Shareholder
hereunder and under the Power of Attorney and the Custody
Agreement shall not be terminated except as provided in this
Agreement, the Power of Attorney or the Custody Agreement by any
act of the Selling Shareholder, by operation of law, whether by
the death or incapacity of such Selling Shareholder or, in the
case of a trust or estate, by the death of the trustee or
trustees or the executor or executors or the termination of such
trust or estate or by the occurrence of any other event. If the
Selling Shareholder or any trustee or executor should die or
become incapacitated, or any such trust or estate should be
terminated, or if any other event should occur before the
delivery of the Shares hereunder, the documents evidencing
Shares then on deposit with the Custodian shall be delivered by
the Custodian in accordance with the terms and conditions of
this Agreement as if such death, incapacity, termination or
other event had not occurred, regardless of whether or not the
Custodian shall have received notice thereof. Each Agent has
been authorized by the Selling Shareholder to execute and
deliver this Agreement and the Pricing Agreement and the
Custodian has been authorized to receive and acknowledge receipt
of the proceeds of sale of the Shares to be sold by the Selling
Shareholder against delivery thereof and otherwise act on behalf
of the Selling Shareholder. The Custody Agreement has been duly
executed by the Selling Shareholder and a copy thereof has been
delivered to you.
(v) Each preliminary prospectus, insofar as it has related
to the Selling Shareholder and, to the knowledge of the Selling
Shareholder in all other respects, as of its date, has conformed
in all material respects with the requirements of the 1933 Act
and, as of its date, has not included any untrue statement of a
material fact or omitted to state a material fact necessary to
make the statements therein not misleading; and the Registration
Statement at the time of effectiveness, and at all times
subsequent thereto, up to the First Closing Date or the Second
Closing Date hereinafter defined, as the case may be, (1) such
parts of the Registration Statement and the Prospectus and any
amendments or supplements thereto as relate to the Selling
Shareholder, and the Registration Statement and the Prospectus
and any amendments or supplements thereto, to the knowledge of
the Selling Shareholder in all other respects, contained or will
contain all statements that are required to be stated therein in
accordance with the 1933 Act and in all material respects
conformed or will in all material respects conform to the
requirements of the 1933 Act, and (2) neither the Registration
Statement nor the Prospectus, nor any amendment or supplement
thereto, as it relates to the Selling Shareholder, and, to the
knowledge of the Selling Shareholder in all other respects,
included or will include any untrue statement of a material fact
or omitted or will omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading.
(vi) The Selling Shareholder agrees with the Company and
the Underwriters not to sell, contract to sell or otherwise
dispose of any Common Stock for a period of 180 days after this
Agreement becomes effective without the prior written consent of
the Representatives.
(b) The Selling Shareholder severally represents and warrants
to, and agrees with, the Underwriters to the same effect as the
representations and warranties of the Company set forth in Section 2
of this Agreement.
In order to document the Underwriter's compliance with the reporting
and withholding provisions of the Internal Revenue Code of 1986, as
amended, with respect to the transactions herein contemplated, the Selling
Shareholder agrees to deliver to you prior to or on the First Closing
Date, as hereinafter defined, a properly completed and executed United
States Treasury Department Form W-8 or W-9 (or other applicable form of
statement specified by Treasury Department regulations in lieu thereof).
SECTION 4. Representations and Warranties of the Underwriters.
The Representatives, on behalf of the several Underwriters, represent and
warrant to the Company and the Selling Shareholder that the information
set forth (a) on the cover page of the Prospectus with respect to price,
underwriting discount and terms of the offering and (b) under
"Underwriting" in the Prospectus was furnished to the Company by and on
behalf of the Underwriters for use in connection with the preparation of
the Registration Statement and is correct and complete in all material
respects.
SECTION 5. Purchase, Sale and Delivery of Shares. On the basis
of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company and the
Selling Shareholder, severally and not jointly, agree to sell to the
Underwriters named in Schedule A hereto, and the Underwriters agree,
severally and not jointly, to purchase from the Company and the Selling
Shareholder, respectively, _________ Firm Shares from the Company and the
respective number of Firm Shares set forth opposite the names of the
Selling Shareholder in Schedule B hereto at the price per share set forth
in the Pricing Agreement. The obligation of each Underwriter to the
Company shall be to purchase from the Company that number of full shares
which (as nearly as practicable, as determined by you) bears to
______________, the same proportion as the number of Shares set forth
opposite the name of such Underwriter in Schedule A hereto bears to the
total number of Firm Shares to be purchased by all Underwriters under this
Agreement. The obligation of each Underwriter to the Selling Shareholder
shall be to purchase from the Selling Shareholder the number of full
shares which (as nearly as practicable, as determined by you) bears to
that number of Firm Shares set forth opposite the name of the Selling
Shareholder in Schedule B hereto, the same proportion as the number of
Shares set forth opposite the name of such Underwriter in Schedule A
hereto bears to the total number of Firm Shares to be purchased by all
Underwriters under this Agreement. The initial public offering price and
the purchase price shall be set forth in the Pricing Agreement.
At 9:00 A.M., Chicago Time, on the fourth business day, if permitted
under Rule 15c6-1 under the Exchange Act, (or the third business day if
required under Rule 15c6-1 under the Exchange Act or unless postponed in
accordance with the provisions of Section 12) following the date the
Registration Statement becomes effective (or, if the Company has elected
to rely upon Rule 430A, the fourth business day, if permitted under Rule
15c6-1 under the Exchange Act, (or the third business day if required
under Rule 15c6-1 under the Exchange Act) after execution of the Pricing
Agreement), or such other time not later than ten business days after such
date as shall be agreed upon by the Representatives and the Company, the
Company and the Custodian will deliver to you at the offices of counsel
for the Underwriters or through the facilities of The Depository Trust
Company for the accounts of the several Underwriters, certificates
representing the Firm Shares to be sold by them, respectively, against
payment of the purchase price therefor by delivery of federal or other
immediately available funds, by wire transfer or otherwise, to the Company
and the Custodian. Such time of delivery and payment is herein referred
to as the "First Closing Date." The certificates for the Firm Shares so to
be delivered will be in such denominations and registered in such names as
you request by notice to the Company and the Custodian prior to
10:00 A.M., Chicago Time, on the second business day preceding the First
Closing Date, and will be made available at the Company's expense for
checking and packaging by the Representatives at 10:00 A.M., Chicago Time,
on the business day preceding the First Closing Date. Payment for the
Firm Shares so to be delivered shall be made at the time and in the manner
described above at the offices of counsel for the Underwriters.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Selling Shareholder hereby grants an option to the
several Underwriters to purchase, severally and not jointly, up to an
aggregate of _______ Option Shares, at the same purchase price per share
to be paid for the Firm Shares, for use solely in covering any
overallotments made by the Underwriters in the sale and distribution of
the Firm Shares. The option granted hereunder may be exercised at any
time (but not more than once) within 30 days after the date of the initial
public offering upon notice by you to the Company and the Agents setting
forth the aggregate number of Option Shares as to which the Underwriters
are exercising the option, the names and denominations in which the
certificates for such shares are to be registered and the time and place
at which such certificates will be delivered. Such time of delivery
(which may not be earlier than the First Closing Date), being herein
referred to as the "Second Closing Date," shall be determined by you, but
if at any time other than the First Closing Date, shall not be earlier
than three nor later than 10 full business days after delivery of such
notice of exercise. The number of Option Shares to be purchased by each
Underwriter shall be determined by multiplying the number of Option Shares
to be sold by the Selling Shareholder pursuant to such notice of exercise
by a fraction, the numerator of which is the number of Firm Shares to be
purchased by such Underwriter as set forth opposite its name in Schedule A
and the denominator of which is the total number of Firm Shares (subject
to such adjustments to eliminate any fractional share purchases as you in
your absolute discretion may make). Certificates for the Option Shares
will be made available at the Company's expense for checking and packaging
at 10:00 A.M., Chicago Time, on the business day preceding the Second
Closing Date. The manner of payment for and delivery of the Option Shares
shall be the same as for the Firm Shares as specified in the preceding
paragraph.
You have advised the Company and the Selling Shareholder that each
Underwriter has authorized you to accept delivery of its Shares, to make
payment and to receipt therefor. You, individually and not as the
Representatives of the Underwriters, may make payment for any Shares to be
purchased by any Underwriter whose funds shall not have been received by
you by the First Closing Date or the Second Closing Date, as the case may
be, for the account of such Underwriter, but any such payment shall not
relieve such Underwriter from any obligation hereunder.
SECTION 6. Covenants of the Company. The Company covenants and
agrees that:
(a) The Company will advise you and the Selling Shareholder
promptly of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any
notification of the suspension of qualification of the Shares for
sale in any jurisdiction or the initiation or threatening of any
proceedings for that purpose, and will also advise you and the
Selling Shareholder promptly of any request of the Commission for
amendment or supplement of the Registration Statement, of any
preliminary prospectus or of the Prospectus, or for additional
information.
(b) The Company will give you and the Selling Shareholder
notice of its intention to file or prepare any amendment to the
Registration Statement (including any post-effective amendment) or
any Rule 462(b) Registration Statement or any amendment or supplement
to the Prospectus (including any revised prospectus which the Company
proposes for use by the Underwriters in connection with the offering
of the Shares which differs from the prospectus on file at the
Commission at the time the Registration Statement became or becomes
effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) and any term sheet as contemplated by
Rule 434) and will furnish you and the Selling Shareholder with
copies of any such amendment or supplement a reasonable amount of
time prior to such proposed filing or use, as the case may be, and
will not file any such amendment or supplement or use any such
prospectus to which you or counsel for the Underwriters shall
reasonably object.
(c) If the Company elects to rely on Rule 434 of the 1933 Act
(subject to your consent), the Company will prepare a term sheet that
complies with the requirements of Rule 434. If the Company elects
not to rely on Rule 434 (subject to your comment), the Company will
provide the Underwriters with copies of the form of prospectus, in
such numbers as the Underwriters may reasonably request, and file
with the Commission such prospectus in accordance with Rule 424(b) of
the 1933 Act by the close of business in New York City on the second
business day immediately succeeding the date of the Pricing
Agreement. If the Company elects to rely on Rule 434, the Company
will provide the Underwriters with copies of the form of Rule 434
Prospectus, in such numbers as the Underwriters may reasonably
request, by the close of business in New York on the business day
immediately succeeding the date of the Pricing Agreement.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act any event occurs as a
result of which the Prospectus, including any amendments or
supplements, would include an untrue statement of a material fact, or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus, including any
amendments or supplements thereto and including any revised
prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Shares which differs from the
prospectus on file with the Commission at the time of effectiveness
of the Registration Statement, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) to comply with the
1933 Act, the Company promptly will advise you thereof and will
promptly prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance; and, in case any
Underwriter is required to deliver a prospectus nine months or more
after the effective date of the Registration Statement, the Company
upon request, but at the expense of such Underwriter, will prepare
promptly such prospectus or prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the
1933 Act.
(e) Neither the Company nor any of its subsidiaries will, prior
to the earlier of the Second Closing Date or termination or
expiration of the related option, incur any liability or obligation,
direct or contingent, or enter into any material transaction, other
than in the ordinary course of business, except as specifically
contemplated by the Prospectus.
(f) Neither the Company nor any of its subsidiaries will
acquire any capital stock of the Company prior to the earlier of the
Second Closing Date or termination or expiration of the related
option nor will the Company declare or pay any dividend or make any
other distribution upon the Common Stock payable to stockholders of
record on a date prior to the earlier of the Second Closing Date or
termination or expiration of the related option, except in either
case as specifically contemplated by the Prospectus.
(g) Not later than January 30, 1999 the Company will make
generally available to its security holders an earnings statement
(which need not be audited) covering a period of at least 12 months
beginning after the effective date of the Registration Statement,
which will satisfy the provisions of the last paragraph of Section
11(a) of the 1933 Act.
(h) During such period as a prospectus is required by law to be
delivered in connection with offers and sales of the Shares by an
Underwriter or dealer, the Company will furnish to you at its
expense, subject to the provisions of subsection (d) hereof, copies
of the Registration Statement, the Prospectus, each preliminary
prospectus and all amendments and supplements to any such documents
in each case as soon as available and in such quantities as you may
reasonably request, for the purposes contemplated by the 1933 Act.
(i) The Company will cooperate with the Underwriters in
qualifying or registering the Shares for sale under the blue sky laws
of such jurisdictions as you designate, and will continue such
qualifications in effect so long as reasonably required for the
distribution of the Shares. The Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any such jurisdiction where it is not currently
qualified or where it would be subject to taxation as a foreign
corporation.
(j) During the period of five years hereafter, the Company will
furnish you and each of the other Underwriters with a copy (i) as
soon as practicable after the filing thereof, of each report filed by
the Company with the Commission, any securities exchange or the NASD;
(ii) as soon as practicable after the release thereof, of each
material press release in respect of the Company; and (iii) as soon
as available, of each report of the Company mailed to stockholders.
(k) The Company will use the net proceeds received by it from
the sale of the Shares being sold by it in the manner specified in
the Prospectus.
(l) If, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in
reliance upon Rule 430A and/or Rule 434, then immediately following
the execution of the Pricing Agreement, the Company will prepare, and
file or transmit for filing with the Commission in accordance with
such Rule 430A, Rule 424(b) and/or Rule 434, copies of an amended
Prospectus, or, if required by such Rule 430A and/or Rule 434, a
post-effective amendment to the Registration Statement (including an
amended Prospectus), containing all information so omitted. If
required, the Company will prepare and file, or transmit for filing,
a Rule 462(b) Registration Statement not later than the date of the
execution of the Pricing Agreement. If a Rule 462(b) Registration
Statement is filed, the Company shall make payment of, or arrange for
payment of, the additional registration fee owing to the Commission
required by Rule 111.
(m) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act and the Nasdaq National
Market and will file with the Commission in a timely manner all
reports on Form SR required by Rule 463 and will furnish you copies
of any such reports as soon as practicable after the filing thereof.
SECTION 7. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective
as to all of its provisions or is terminated, the Company agrees to pay
(i) all costs, fees and expenses (other than legal fees and disbursements
of counsel for the Underwriters and the expenses incurred by the
Underwriters) incurred in connection with the performance of the Company's
obligations hereunder, including without limiting the generality of the
foregoing, all fees and expenses of legal counsel for the Company and of
the Company's independent accountants, all costs and expenses incurred in
connection with the preparation, printing, filing and distribution of the
Registration Statement, each preliminary prospectus and the Prospectus
(including all exhibits and financial statements) and all amendments and
supplements provided for herein, this Agreement, the Pricing Agreement and
the Blue Sky Memorandum, (ii) all costs, fees and expenses (including
legal fees not to exceed $10,000 and disbursements of counsel for the
Underwriters) incurred by the Underwriters in connection with qualifying
or registering all or any part of the Shares for offer and sale under blue
sky laws, including the preparation of a blue sky memorandum relating to
the Shares and clearance of such offering with the NASD; and (iii) all
fees and expenses of the Company's transfer agent, printing of the
certificates for the Shares and all transfer taxes, if any, with respect
to the sale and delivery of the Shares to the several Underwriters.
The provisions of this Section shall not affect any agreement which
the Company and the Selling Shareholder may make for the allocation or
sharing of such expenses and costs.
SECTION 8. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the
Firm Shares on the First Closing Date and the Option Shares on the Second
Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Shareholder herein
set forth as of the date hereof and as of the First Closing Date or the
Second Closing Date, as the case may be, to the accuracy of the statements
of officers of the Company made pursuant to the provisions hereof, to the
performance by the Company and the Selling Shareholder of their respective
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective
either prior to the execution of this Agreement or not later than
1:00 P.M., Chicago Time, on the first full business day after the
date of this Agreement, or such later time as shall have been
consented to by you but in no event later than 1:00 P.M., Chicago
Time, on the third full business day following the date hereof; and
prior to the First Closing Date or the Second Closing Date, as the
case may be, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or shall be pending or, to
the knowledge of the Company, the Selling Shareholder or you, shall
be contemplated by the Commission. If the Company has elected to
rely upon Rule 430A and/or Rule 434, the information concerning the
initial public offering price of the Shares and price-related
information shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the prescribed period and the Company
will provide evidence satisfactory to the Representatives of such
timely filing (or a post-effective amendment providing such
information shall have been filed and declared effective in
accordance with the requirements of Rules 430A and 424(b)). If a
Rule 462(b) Registration Statement is required, such Registration
Statement shall have been transmitted to the Commission for filing
and become effective within the prescribed time period and, prior to
the First Closing Date, the Company shall have provided evidence of
such filing and effectiveness in accordance with Rule 462(b).
(b) The Shares shall have been qualified for sale under the
blue sky laws of such states as shall have been specified by the
Representatives.
(c) The legality and sufficiency of the authorization, issuance
and sale or transfer and sale of the Shares hereunder, the validity
and form of the certificates representing the Shares, the execution
and delivery of this Agreement and the Pricing Agreement, and all
corporate proceedings and other legal matters incident thereto, and
the form of the Registration Statement and the Prospectus (except
financial statements) shall have been approved by counsel for the
Underwriters exercising reasonable judgment.
(d) You shall not have advised the Company that the
Registration Statement or the Prospectus or any amendment or
supplement thereto, contains an untrue statement of fact, which, in
the opinion of counsel for the Underwriters, is material or omits to
state a fact which, in the opinion of such counsel, is material and
is required to be stated therein or necessary to make the statements
therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the
business, properties or shareholders of the Company, whether or not
arising in the ordinary course of business, which, in the judgment of
the Representatives, makes it impractical or inadvisable to proceed
with the public offering or purchase of the Shares as contemplated
hereby.
(f) There shall have been furnished to you, as Representatives
of the Underwriters, on the First Closing Date or the Second Closing
Date, as the case may be, except as otherwise expressly provided
below:
(i) An opinion of Xxxxx & Xxxxxxx, counsel for the Company
and for the Selling Shareholder, addressed to the Underwriters
and dated the First Closing Date or the Second Closing Date, as
the case may be, to the effect that:
(1) the Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Nebraska with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and the Company has been duly
qualified to do business as a foreign corporation under the
corporation law of, and is in good standing as such in,
every jurisdiction where the ownership or leasing of
property, or the conduct of its business requires such
qualification except where the failure so to qualify would
not have a material adverse effect upon the condition
(financial or otherwise) or results of operations of the
Company taken as a whole;
(2) to such counsel's knowledge, the Company does not
have any subsidiaries, is not a party to any joint venture
and is not a partner in any partnership;
(3) the authorized capital stock of the Company, of
which there is outstanding the amount set forth in the
Registration Statement and Prospectus (except for
subsequent issuances, if any, pursuant to stock options or
other rights referred to in the Prospectus), conforms as to
legal matters in all material respects to the description
thereof in the Registration Statement and Prospectus and to
such counsel's knowledge, no holder of any security of the
Company has any right to require registration of any
subsidiary of the Company;
(4) the issued and outstanding capital stock of the
Company has been duly authorized and validly issued and is
fully paid and nonassessable and was not issued in
violation of any preemptive or similar rights arising by
operation of law under the charter or by-laws of the
Company or, to the knowledge of such counsel, under any
agreement;
(5) the certificates for the Shares to be delivered
hereunder are in due and proper form, and when duly
countersigned by the Company's transfer agent and delivered
to you or upon your order against payment of the agreed
consideration therefor in accordance with the provisions of
this Agreement and the Pricing Agreement, the Shares
represented thereby will be duly authorized and validly
issued, fully paid and nonassessable and qualified for
inclusion on the Nasdaq National Market;
(6) the Registration Statement has become effective
under the 1933 Act, and, to the best knowledge of such
counsel, 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, and the Registration
Statement (including the information deemed to be part of
the Registration Statement at the time of effectiveness
pursuant to Rule 430A(b) and/or Rule 434, if applicable),
the Prospectus and each amendment or supplement thereto
(except for the financial statements and other statistical
or financial data derived therefrom as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the 1933 Act;
such counsel have no reason to believe that either the
Registration Statement (including the information deemed to
be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) and/or Rule 434, if
applicable) or the Prospectus, or the Registration
Statement or the Prospectus as amended or supplemented, as
of their respective effective or issue dates, contained any
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 the
Prospectus as amended or supplemented, if applicable, as of
the First Closing Date or the Second Closing Date, as the
case may be, contained any untrue statement of a material
fact or omitted to state any material fact necessary to
make the statements therein not misleading in light of the
circumstances under which they were made; the statements in
the Registration Statement and the Prospectus summarizing
statutes, rules, regulations, contracts or documents are
accurate and fairly and correctly present the information
required to be presented by the 1933 Act or the rules and
regulations thereunder, in all material respects and such
counsel does not know of any statutes, rules, regulations,
contracts or documents required to be described or referred
to in the Registration Statement or the Prospectus that are
not described or referred to therein as required; and such
counsel does not know of any legal or governmental
proceedings pending or threatened required to be described
in the Prospectus which are not described as required, nor
of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or to
be filed as exhibits to the Registration Statement which
are not described or filed, as required;
(7) the statements under the captions "S-corporation
Termination," "Management - Employment Agreements,"
"Management-Employee Benefit Plans," "Management -
Indemnification of Directors and Officers," "Certain
Transactions," "Description of Capital Stock," "Shares
Eligible for Future Sale" and "Underwriting" in the
Prospectus, insofar as such statements constitute a summary
of documents referred to therein or matters of law, are
accurate summaries and fairly and correctly present, in all
material respects, the information called for with respect
to such documents and matters;
(8) this Agreement and the Pricing Agreement and the
performance of the Company's obligations hereunder have
been duly authorized by all necessary corporate action and
this Agreement and the Pricing Agreement have been duly
executed and delivered by and on behalf of the Company, and
are legal, valid and binding agreements of the Company,
except as enforceability of the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights and by the
exercise of judicial discretion in accordance with general
principles applicable to equitable and similar remedies and
except as to those provisions relating to indemnities for
liabilities arising under the 1933 Act as to which no
opinion need be expressed; and no approval, authorization
or consent of any public board, agency, or instrumentality
of the United States or of any state or other jurisdiction
is necessary in connection with the issue or sale of the
Shares by the Company pursuant to this Agreement (other
than under the 1933 Act, applicable blue sky laws and the
rules of the NASD) or the consummation by the Company of
any other transactions contemplated hereby;
(9) the execution and performance of this Agreement
will not contravene any of the provisions of, or result in
a default under, any agreement, franchise, license,
indenture, mortgage, deed of trust, or other instrument
known to such counsel, of the Company or by which the
property of the Company is bound and which contravention or
default would be material to the Company; or violate any of
the provisions of the charter or bylaws of the Company or,
so far as is known to such counsel, violate any statute,
order, rule or regulation of any regulatory or governmental
body having jurisdiction over the Company;
(10) to such counsel's knowledge, all offers and sales
of the Company's capital stock since August 1, 1994 were at
all relevant times exempt from the registration
requirements of the 1933 Act and were duly registered or
the subject of an available exemption from the registration
requirements of the applicable state securities or blue sky
laws;
(11) with respect to the Selling Shareholder, this
Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by or on behalf of the
Selling Shareholder; the Agents and the Custodian for the
Selling Shareholder have been duly and validly authorized
to carry out all transactions contemplated herein on behalf
of the Selling Shareholder; and the performance of this
Agreement and the Pricing Agreement and the consummation of
the transactions herein contemplated by the Selling
Shareholder will not result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, any statute, any indenture, mortgage, deed of trust,
note agreement or other agreement or instrument known to
such counsel to which the Selling Shareholder is a party or
by which he is bound or to which any of the property of the
Selling Shareholder is subject, or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
Selling Shareholder or any of his properties; and no
consent, approval, authorization or order of any court or
governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement and the Pricing Agreement in connection with the
sale of Shares to be sold by the Selling Shareholder
hereunder, except such as have been obtained under the 1933
Act and such as may be required under applicable blue sky
laws in connection with the purchase and distribution of
such Shares by the Underwriters and the clearance of such
offering with the NASD;
(12) the Selling Shareholder has full right, power and
authority to enter into this Agreement and the Pricing
Agreement and to sell, transfer and deliver the Shares to
be sold on the First Closing Date or the Second Closing
Date, as the case may be, by the Selling Shareholder
hereunder and good and marketable title to such Shares so
sold, free and clear of all voting trust arrangements,
liens, encumbrances, equities, claims and community
property rights whatsoever, has been transferred to the
Underwriters (who counsel may assume to be bona fide
purchasers) who have purchased such Shares hereunder;
(13) this Agreement and the Pricing Agreement are
legal, valid and binding agreements of the Selling
Shareholder except as enforceability of the same may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors'
rights and by the exercise of judicial discretion in
accordance with general principles applicable to equitable
and similar remedies and except with respect to those
provisions relating to indemnities for liabilities arising
under the 1933 Act, as to which no opinion need be
expressed;
(14) to the knowledge of such counsel except as
disclosed in the Prospectus, no person has the right,
contractual or otherwise, to cause the Company to issue, or
register pursuant to the 1933 Act, any shares of capital
stock of the Company, upon the issue and sale of the Shares
to be sold by the company to the Underwriters pursuant to
this Agreement, nor does any person have preemptive rights,
rights of first refusal, or other rights to purchase any
capital stock of the Company; and
(15) the Company is not an "investment company" or a
person "controlled by" an "investment company" within the
meaning of the Investment Company Act.]
In rendering such opinion, such counsel may state that
insofar as their opinion under clause (7) above relates to the
accuracy and completeness of the Prospectus and Registration
Statement, it is based upon a general review with the Company's
representatives and independent accountants of the information
contained therein, without independent verification by such
counsel of the accuracy or completeness of such information.
Such counsel may also rely upon the opinions of other competent
counsel and, as to factual matters, on certificates of the
Selling Shareholder and of officers of the Company and of state
officials, in which case their opinion is to state that they are
so doing and copies of said opinions or certificates are to be
attached to the opinion unless said opinions or certificates
(or, in the case of certificates, the information therein) have
been furnished to the Representatives in other form.
(ii) Such opinion or opinions of Xxxxxxxx & Xxxxxx, Ltd.,
counsel for the Underwriters, dated the First Closing Date or
the Second Closing Date, as the case may be, with respect to the
incorporation of the Company, the validity of the Shares to be
sold by the Company, the Registration Statement and the
Prospectus and other related matters as you may reasonably
require, and the Company shall have furnished to such counsel
such documents and shall have exhibited to them such papers and
records as they request for the purpose of enabling them to pass
upon such matters.
(iii) A certificate of the chief executive officer and
the principal financial officer of the Company, dated the First
Closing Date or the Second Closing Date, as the case may be, to
the effect that:
(1) the representations and warranties of the Company
set forth in Section 2 of this Agreement are true and
correct as of the date of this Agreement and as of the
First Closing Date or the Second Closing Date, as the case
may be, and the Company has complied with all the
agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to such Closing Date;
and
(2) the Commission has not issued an order preventing
or suspending the use of the Prospectus or any preliminary
prospectus filed as a part of the Registration Statement or
any amendment thereto; no stop order suspending the
effectiveness of the Registration Statement has been
issued; and to the best knowledge of the respective
signers, no proceedings for that purpose have been
instituted or are pending or contemplated under the 1933
Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and
warranty of the Company as to the facts required in the
immediately foregoing clauses (1) and (2) of this subparagraph
to be set forth in said certificate.
(iv) A certificate of the Selling Shareholder dated the
First Closing Date or the Second Closing Date, as the case may
be, to the effect that the representations and warranties of the
Selling Shareholder set forth in Section 3 of this Agreement are
true and correct as of such date and the Selling Shareholder has
complied with all the agreements and satisfied all the
conditions on the part of the Selling Shareholder to be
performed or satisfied at or prior to such date.
(v) At the time the Pricing Agreement is executed and also
on the First Closing Date or the Second Closing Date, as the
case may be, there shall be delivered to you a letter addressed
to you, as Representatives of the Underwriters, from KPMB Peat
Marwick, LLP, independent accountants, the first one to be dated
the date of the Pricing Agreement, the second one to be dated
the First Closing Date and the third one (in the event of a
second closing) to be dated the Second Closing Date, to the
effect set forth in Schedule C. There shall not have been any
change or decrease specified in the letters referred to in this
subparagraph which makes it impractical or inadvisable in the
judgment of the Representatives to proceed with the public
offering or purchase of the Shares as contemplated hereby.
(vi) Such further certificates and documents as you may
reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you
and to Xxxxxxxx & Xxxxxx, Ltd., counsel for the Underwriters, which
approval shall not be unreasonably withheld. The Company shall furnish
you with such manually signed or conformed copies of such opinions,
certificates, letters and documents as you request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon notification to the Company
and the Selling Shareholder without liability on the part of the
Underwriter or the Company or any Selling Shareholder, except for the
expenses to be paid or reimbursed by the Company pursuant to Sections 7
and 9 hereof and except to the extent provided in Section 11 hereof.
SECTION 9. Reimbursement of Underwriters' Expenses. If the
sale to the Underwriters of the Shares on the First Closing Date is not
consummated because any condition of the Underwriters' obligations
hereunder is not satisfied or because of any refusal, inability or failure
on the part of the Company or the Selling Shareholder to perform any
agreement herein or to comply with any provision hereof, unless such
failure to satisfy such condition or to comply with any provision hereof
is due to the default or omission of any Underwriter, the Company agrees
to reimburse you and the other Underwriters upon demand for all out-of-
pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by you and them in connection
with the proposed purchase and the sale of the Shares. Any such
termination shall be without liability of any party to any other party
except that the provisions of this Section, Section 7 and Section 11 shall
at all times be effective and shall apply.
SECTION 10. Effectiveness of Registration Statement. You, the
Company and the Selling Shareholder will use your, its and his best
efforts to cause the Registration Statement to become effective, if it has
not yet become effective, and to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement and, if such
stop order be issued, to obtain as soon as possible the lifting thereof.
SECTION 11. Indemnification. (a) The Company and the Selling
Shareholder, jointly and severally, agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the 1933 Act or the Exchange Act against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the 1933
Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company and/or the Selling Shareholder, as the case may be), insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, including the information deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A and/or Rule
434, if applicable, any preliminary prospectus, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; and will reimburse each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that neither the Company nor the Selling Shareholder will be
liable in any such case to the extent that (i) 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 the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives, specifically for use therein; or
(ii) if such statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus and (1) any such
loss, claim, damage or liability suffered or incurred by any Underwriter
(or any person who controls any Underwriter) resulted from an action,
claim or suit by any person who purchased Shares which are the subject
thereof from such Underwriter in the offering and (2) such Underwriter
failed to deliver or provide a copy of the Prospectus to such person at or
prior to the confirmation of the sale of such Shares in any case where
such delivery is required by the 1933 Act. In addition to their other
obligations under this Section 11(a), the Company and the Selling
Shareholder agree that, as an interim measure during the pendency of any
claim, action, investigation, inquiry or other proceeding arising out of
or based upon any statement or omission, or any alleged statement or
omission, described in this Section 11(a), they will reimburse the
Underwriters on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding
the absence of a judicial determination as to the propriety and
enforceability of the Company's and the Selling Shareholders' obligation
to reimburse the Underwriters for such expenses and the possibility that
such payments might later be held to have been improper by a court of
competent jurisdiction. This indemnity agreement will be in addition to
any liability which the Company and the Selling Shareholder may otherwise
have.
Without limiting the full extent of the Company's agreement to
indemnify each Underwriter, as herein provided, the Selling Shareholder
shall be liable under the indemnity agreements contained in paragraph (a)
of this Section only for an amount not exceeding the sum of (i) the
proceeds received by the Selling Shareholder from the sale of Shares
hereunder plus (ii) the amount of distributions received by the Selling
Shareholder since March 31, 1997.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the
Registration Statement, and the Selling Shareholder and each person, if
any, who controls the Company within the meaning of the 1933 Act or the
Exchange Act, against any losses, claims, damages or liabilities to which
the Company, or any such director, officer, Selling Shareholder or
controlling person may become subject under the 1933 Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of such Underwriter), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue or alleged untrue statement of
any material fact contained in the Registration Statement, any preliminary
prospectus, 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 the Registration Statement,
any preliminary prospectus, the Prospectus, or any amendment or supplement
thereto in reliance upon and in conformity with the information specified
in Section 4 of this Agreement; and will reimburse any legal or other
expenses reasonably incurred by the Company, or any such director,
officer, Selling Shareholder or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or
action. In addition to their other obligations under this Section 11(b),
the Underwriters agree that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding arising out
of or based upon any statement or omission, or any alleged statement or
omission, described in this Section 11(b), they will reimburse the Company
and the Selling Shareholder on a monthly basis for all reasonable legal
and other expenses incurred in connection with investigating or defending
any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the Underwriters' obligation to reimburse
the Company and the Selling Shareholder for such expenses and the
possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party except to the extent that the indemnifying party was
materially prejudiced by such failure to notify. In case any such action
is brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate in, and, to the extent that it may wish, jointly with all
other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, or the indemnified and
indemnifying parties may have conflicting interests which would make it
inappropriate for the same counsel to represent both of them, the
indemnified party or parties shall have the right to select separate
counsel to assume such legal defense and otherwise to participate in the
defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval
by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have
employed such counsel in connection with the assumption of legal defense
in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel), approved by Xxxxxxx Xxxxx & Company, L.L.C., in the case of
paragraph (a) representing all indemnified parties not having different or
additional defenses or potential conflicting interest among themselves who
are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying
party. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability arising out of such proceeding.
(d) If the indemnification provided for in this Section is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect of any losses, claims, damages or liabilities referred to therein,
then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Selling Shareholder and the
Underwriters from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Company, the Selling Shareholder and the Underwriters in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The respective relative benefits received by the Company, the Selling
Shareholder and the Underwriters shall be deemed to be in the same
proportion in the case of the Company and the Selling Shareholder, as the
total price paid to the Company and the Selling Shareholder for the Shares
by the Underwriters (net of underwriting discount but before deducting
expenses), and in the case of the Underwriters as the underwriting
discount received by them bears to the total of such amounts paid to the
Company and the Selling Shareholder and received by the Underwriters as
underwriting discount in each case as contemplated by the Prospectus. The
relative fault of the Company and the Selling Shareholder and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Company or by the Selling Shareholder or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages and
liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Company, the Selling Shareholder and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
Section were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
provisions of this Section, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section are several in proportion to their
respective underwriting commitments and not joint.
(e) The provisions of this Section shall survive any termination of
this Agreement.
SECTION 12. Default of Underwriters. It shall be a condition to
the agreement and obligation of the Company and the Selling Shareholder to
sell and deliver the Shares hereunder, and of each Underwriter to purchase
the Shares hereunder, that, except as hereinafter in this paragraph
provided, each of the Underwriters shall purchase and pay for all Shares
agreed to be purchased by such Underwriter hereunder upon tender to the
Representatives of all such Shares in accordance with the terms hereof.
If any Underwriter or Underwriters default in their obligations to
purchase Shares hereunder on the First Closing Date and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10 percent of the total number of
Shares which the Underwriters are obligated to purchase on the First
Closing Date, the Representatives may make arrangements satisfactory to
the Company and the Selling Shareholder for the purchase of such Shares by
other persons, including any of the Underwriters, but if no such
arrangements are made by such date the nondefaulting Underwriters shall be
obligated severally, in proportion to their respective commitments
hereunder, to purchase the Shares which such defaulting Underwriters
agreed but failed to purchase on such date. If any Underwriter or
Underwriters so default and the aggregate number of Shares with respect to
which such default or defaults occur is more than the above percentage and
arrangements satisfactory to the Representatives and the Company and the
Selling Shareholder for the purchase of such Shares by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any nondefaulting Underwriter or the
Company or the Selling Shareholder, except for the expenses to be paid by
the Company pursuant to Section 7 hereof and except to the extent provided
in Section 11 hereof.
In the event that Shares to which a default relates are to be
purchased by the nondefaulting Underwriters or by another party or
parties, the Representatives or the Company shall have the right to
postpone the First Closing Date for not more than seven business days in
order that the necessary changes in the Registration Statement, Prospectus
and any other documents, as well as any other arrangements, may be
effected. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
SECTION 13. Effective Date. This Agreement shall become effective
immediately as to Sections 7, 9, 11 and 14 and as to all other provisions
at 10:00 A.M., Chicago Time, on the day following the date upon which the
Pricing Agreement is executed and delivered, unless such a day is a
Saturday, Sunday or holiday (and in that event this Agreement shall become
effective at such hour on the business day next succeeding such Saturday,
Sunday or holiday); but this Agreement shall nevertheless become effective
at such earlier time after the Pricing Agreement is executed and delivered
as you may determine on and by notice to the Company and the Selling
Shareholder or by release of any Shares for sale to the public. For the
purposes of this Section, the Shares shall be deemed to have been so
released upon the release for publication of any newspaper advertisement
relating to the Shares or upon the release by you of telegrams
(i) advising Underwriters that the Shares are released for public
offering, or (ii) offering the Shares for sale to securities dealers,
whichever may occur first.
SECTION 14. Termination. Without limiting the right to terminate
this Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice
to you and the Selling Shareholder or by you by notice to the Company
and the Selling Shareholder at any time prior to the time this
Agreement shall become effective as to all its provisions, and any
such termination shall be without liability on the part of the
Company or the Selling Shareholder to any Underwriter (except for the
expenses to be paid or reimbursed pursuant to Section 7 hereof and
except to the extent provided in Section 11 hereof) or of any
Underwriter to the Company or the Selling Shareholder.
(b) This Agreement may also be terminated by you prior to the
First Closing Date, and the option referred to in Section 5, if
exercised, may be canceled at any time prior to the Second Closing
Date, if (i) trading in securities on the New York Stock Exchange
shall have been suspended or minimum prices shall have been
established on such exchange, or (ii) a banking moratorium shall have
been declared by Illinois, New York, or United States authorities, or
(iii) there shall have been any change in financial markets or in
political, economic or financial conditions which, in the opinion of
the Representatives, either renders it impracticable or inadvisable
to proceed with the offering and sale of the Shares on the terms set
forth in the Prospectus or materially and adversely affects the
market for the Shares, or (iv) there shall have been an outbreak of
major armed hostilities between the United States and any foreign
power which in the opinion of the Representatives makes it
impractical or inadvisable to offer or sell the Shares. Any
termination pursuant to this paragraph (b) shall be without liability
on the part of any Underwriter to the Company or the Selling
Shareholder or on the part of the Company to any Underwriter or the
Selling Shareholder (except for expenses to be paid or reimbursed
pursuant to Section 7 hereof and except to the extent provided in
Section 11 hereof).
SECTION 15. Representations and Indemnities to Survive Delivery.
The respective indemnities, agreements, representations, warranties and
other statements of the Company, of its officers, of the Selling
Shareholder and of the several Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or
any of its or their partners, principals, members, officers or directors
or any controlling person, or the Selling Shareholder as the case may be,
and will survive delivery of and payment for the Shares sold hereunder.
SECTION 16. Notices. All communications hereunder will be in
writing and, if sent to the Underwriters will be mailed, delivered or
telegraphed and confirmed to you S Xxxxxxx Xxxxx & Company, L.L.C., 000
Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, with a copy to
___________________________________; and if sent to the Company or the
Selling Shareholder, will be mailed, delivered or telegraphed and
confirmed to the Company at its corporate headquarters with a copy to
Xxxxx & Xxxxxxx, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 53202-
5367, Attention: Xxxxxxxx X. Xxxxxx, III, Esq.; and if sent to the Selling
Shareholder will be mailed, delivered or telegraphed and confirmed to the
Agents and the Custodian at such address as they have previously furnished
to the Company and the Representatives, with a copy to Xxxxxxxx & Xxxxxx,
Ltd., 00 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
SECTION 17. Successors. This Agreement and the Pricing Agreement
will inure to the benefit of and be binding upon the parties hereto and
their respective successors, personal representatives and assigns, and to
the benefit of the officers and directors and controlling persons referred
to in Section 11, and no other person will have any right or obligation
hereunder. The term "successors" shall not include any purchaser of the
Shares as such from any of the Underwriters merely by reason of such
purchase.
SECTION 18. Representation of Underwriters. You will act as
Representatives for the several Underwriters in connection with this
financing, and any action under or in respect of this Agreement taken by
you will be binding upon all the Underwriters.
SECTION 19. Partial Unenforceability. If any section, paragraph
or provision of this Agreement is for any reason determined to be invalid
or unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
SECTION 10. Applicable Law. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws
of the State of Illinois.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the
Selling Shareholder and the several Underwriters including you, all in
accordance with its terms.
Very truly yours,
National Research Corporation
By:
Its: Chief Executive Officer, Selling
Shareholder
Xxxxxxx X. Xxxx
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxx X. Xxxxx & Co. Incorporated
Acting as Representatives of the
several Underwriters named in
Schedule A.
By Xxxxxxx Xxxxx & Company, L.L.C.
By:
Principal
Schedule A
Number of
Firm Shares
Underwriter to be Purchased
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxx X. Xxxxx & Co. Incorporated
----------
Total
==========
Schedule B
Number of Number of
Firm Shares Option Shares
to be Sold to be Sold
Company
Selling Shareholder:
Xxxxxxx X. Xxxx
---------- ----------
Total
========== ==========
SCHEDULE C
Comfort Letter of
(1) They are independent public accountants with respect to the
Company within the meaning of the 1933 Act.
(2) In their opinion the financial statements and schedules of the
Company included in the Registration Statement and the financial
statements of the Company from which the information presented under the
caption "Selected Financial Data" has been derived which are stated
therein to have been examined by them comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act.
(3) On the basis of specified procedures (but not an examination in
accordance with generally accepted auditing standards), including
inquiries of certain officers of the Company responsible for financial and
accounting matters as to transactions and events subsequent to
___________________, 19___, a reading of minutes of meetings of the
stockholders and directors of the Company since _________________, 19___,
a reading of the latest available interim unaudited financial statements
of the Company and its subsidiaries (with an indication of the date
thereof) and other procedures as specified in such letter, nothing came to
their attention which caused them to believe that (i) the unaudited
financial statements and pro forma information of the Company included in
the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act or
that such unaudited financial statements and pro forma information are not
fairly presented in accordance with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included in the Registration Statement, and
(ii) at a specified date not more than five days prior to the date thereof
in the case of the first letter and not more than two business days prior
to the date thereof in the case of the second and third letters, there was
any change in the capital stock or long-term debt or short-term debt
(other than normal payments) of the Company or any decrease in net current
assets or stockholders' equity as compared with amounts shown on the
latest unaudited balance sheet of the Company included in the Registration
Statement or for the period from the date of such balance sheet to a date
not more than five days prior to the date thereof in the case of the first
letter and not more than two business days prior to the date thereof in
the case of the second and third letters, there were any decreases, as
compared with the corresponding period of the prior year, in net sales,
income before income taxes or in the total or per share amounts of net
income except, in all instances, for changes or decreases which the
Prospectus discloses have occurred or which are set forth in such letter.
(4) They have carried out specified procedures, which have been
agreed to by the Representatives, with respect to certain information in
the Prospectus specified by the Representatives, and on the basis of such
procedures, they have found such information to be in agreement with the
general accounting records of the Company.
Exhibit A
National Research Corporation
Shares Common Stock 1
Pricing Agreement
, 1997
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxx X. Xxxxx & Co. Incorporated
As Representatives of the Several
Underwriters
S Xxxxxxx Xxxxx & Company, L.L.C.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated
_________________, 1997 (the "Underwriting Agreement") relating to the
sale by the Company and the Selling Shareholder and the purchase by the
several Underwriters for whom Xxxxxxx Xxxxx & Company, L.L.C. and Xxxxxx
X. Xxxxx & Co. Incorporated are acting as representatives (the
"Representatives"), of the above Shares. All terms herein shall have the
definitions contained in the Underwriting Agreement except as otherwise
defined herein.
Pursuant to Section 5 of the Underwriting Agreement, the Company and
the Selling Shareholder agree with the Representatives as follows:
1. The initial public offering price per share for the Shares shall
be $__________.
2. The purchase price per share for the Shares to be paid by the
several Underwriters shall be $_____________, being an amount equal to the
initial public offering price set forth above less $____________ per
share.
Schedule A is amended as follows:
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the
Selling Shareholder and the several Underwriters, including you, all in
accordance with its terms.
Very truly yours,
National Research Corporation
By:
Its: Chief Executive Officer
Selling Shareholder:
Xxxxxxx X. Xxxx
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx & Company, L.L.C.
Xxxxxx X. Xxxxx & Co. Incorporated
Acting as Representatives of the
several Underwriters
By Xxxxxxx Xxxxx & Company, L.L.C.
By
Principal
