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EXHIBIT 1.1
FIRST SIERRA FINANCIAL, INC.
3,400,000 SHARES1
COMMON STOCK
UNDERWRITING AGREEMENT
January __, 1998
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXXX XXXXXXX INC.
c/o Friedman, Billings, Xxxxxx & Co., Inc.
Potomac Tower
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
As Representatives of the Several Underwriters
Dear Sirs:
First Sierra Financial, Inc., a Delaware corporation (the "Company")
and the stockholders of the Company named in Schedule II hereto (the "Selling
Stockholders") hereby confirm their agreement with the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you have been duly
authorized to act as representatives (in such capacity, the "Representatives"),
as set forth below. If you are the only Underwriters, all references herein to
the Representatives shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein
contained, the Company and the Selling Stockholders propose to issue and sell
to the several Underwriters an aggregate of 3,400,000 shares (the "Firm
Securities") of the Company's Common Stock, $0.01 par value per share (the
"Common Stock"), of which 2,083,334 Firm Securities are to be issued and sold
by the Company and 1,316,666 Firm Securities are to be sold by the Selling
Stockholders, with each Selling Stockholder selling the number of Firm
Securities set forth opposite such Selling Stockholder's name in Schedule II
hereto. The Company also proposes to issue and sell to the several
Underwriters not more than 510,000 additional shares of Common Stock if
requested by the Representatives as provided in Section 3 of this Agreement.
Any and all shares of Common Stock to
_________________________
1 Plus an option to purchase from First Sierra Financial, Inc. up to
510,000 additional shares to cover over-allotments.
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be purchased by the Underwriters pursuant to such option are referred to herein
as the "Option Securities." The Firm Securities and any Option Securities are
collectively referred to herein as the "Securities."
2. Representations and Warranties.
(a) The Company represents and warrants to, and agrees
with, each of the several Underwriters that:
(i) A registration statement on Form S-1
(Reg. No. 333 - 41833) with respect to the Securities, including a
prospectus subject to completion, has been filed by the Company with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), and one or more
amendments to such registration statement may have been so filed.
After the execution of this Agreement, the Company will file with the
Commission either (i) if such registration statement, as it may have
been amended, has been declared by the Commission to be effective
under the Act, either (A) if the Company relies on Rule 434 under the
Act, a Term Sheet (as hereinafter defined) relating to the Securities,
that shall identify the Preliminary Prospectus (as hereinafter
defined) that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Act or
(B) if the Company does not rely on Rule 434 under the Act, a
prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been
filed, in such registration statement), with such changes or
insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or
(i)(B) of this sentence, as have been provided to and approved by the
Representatives prior to the execution of this Agreement, or (ii) if
such registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the Act, an amendment
to such registration statement, including a form of prospectus, a copy
of which amendment has been furnished to and approved by the
Representatives prior to the execution of this Agreement. The Company
may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering
certain additional Securities, which registration statement shall be
effective upon filing with the Commission. As used in this Agreement,
the term "Original Registration Statement" means the registration
statement initially filed with the Commission relating to the
Securities, as amended at the time when it was or is declared
effective, including any financial schedules and all exhibits thereto
and including any information omitted
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therefrom pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined). The term "Rule 462(b)
Registration Statement" means any registration statement filed with
the Commission pursuant to Rule 462(b) under the Act (including the
Original Registration Statement and any Preliminary Prospectus or
Prospectus incorporated therein at the time such registration
statement becomes effective). The term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
registration statement. The term "Preliminary Prospectus" means each
prospectus subject to completion filed with any Registration Statement
or any amendment thereto (including the prospectus subject to
completion, if any, included in the Registration Statement or any
amendment thereto at the time it was or is declared effective). The
term "Prospectus" means: (A) if the Company relies on Rule 434 under
the Act, the Term Sheet relating to the Securities that is first filed
with the Commission pursuant to Rule 424(b)(7) under the Act, together
with the Preliminary Prospectus identified therein that such Term
Sheet supplements; (B) if the Company does not rely on Rule 434 under
the Act, the prospectus first filed with the Commission pursuant to
Rule 424(b) under the Act; or (C) if the Company does not rely on Rule
434 under the Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Act, the prospectus included in the
Registration Statement. The term "Term Sheet" means any term sheet
that satisfies the requirements of Rule 434 under the Act. Any
reference herein to the "date" of a Prospectus that includes a Term
Sheet shall mean the date of such Term Sheet.
(ii) The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus.
When the Preliminary Prospectus included in the Registration Statement
at the time it was or is declared effective was filed with the
Commission it (A) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not include any untrue statement of
a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. When the Registration
Statement or any amendment thereto was or is declared effective, it
(A) contained or will contain all statements required to be stated
therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (B) did not or will not
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
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misleading. When the Prospectus or any Term Sheet that is a part
thereof or any amendment or supplement to the Prospectus is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus or any
Term Sheet that is a part thereof or such amendment or supplement is
not required to be so filed, when the Registration Statement or the
amendment thereto containing such amendment or supplement to the
Prospectus was or is declared effective) and on the Firm Closing Date
and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (A) contained
or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (ii) do not apply to statements
or omissions made in any Preliminary Prospectus, the Registration
Statement or any amendment thereto or the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(iii) If the Company has elected to rely
on Rule 462(b) and the Rule 462(b) Registration Statement has not been
declared effective (i) the Company will prepare and file with the
Commission a Rule 462(b) Registration Statement in compliance with,
and that is effective upon filing pursuant to, Rule 462(b) and (ii)
the Company has paid or will give irrevocable instructions for
transmission of the applicable filing fee in connection with the
filing of the Rule 462(b) Registration Statement, in compliance with
Rule 111 promulgated under the Act.
(iv) The Company does not own or control,
directly or indirectly, any corporation, association or other entity
other than the subsidiaries listed in Exhibit 21.1 to the Registration
Statement. The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation and
are duly qualified to transact business as foreign corporations and
are in good standing under the laws of all other jurisdictions where
the ownership or leasing of their respective properties or the conduct
of their respective businesses requires such qualification, except
where the failure to be so qualified would not result in a material
adverse change in the financial
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condition, business, net worth or results of operations of the Company
and its subsidiaries considered as one enterprise (a "Material Adverse
Effect").
(v) The Company and each of its
subsidiaries have corporate power to own or lease their respective
properties and conduct their respective businesses as described in the
Registration Statement and the Prospectus, and the Company has
corporate power to enter into this Agreement and to carry out all the
terms and provisions hereof to be carried out by it.
(vi) The issued shares of capital stock
of each of the Company's subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned
beneficially by the Company free and clear of any security interests,
liens, encumbrances, equities or claims.
(vii) The Company has an authorized,
issued and outstanding capitalization as set forth in the Prospectus.
All of the issued shares of capital stock of the Company (including
the Firm Securities to be sold by the Selling Stockholders) have been
duly authorized and validly issued and are fully paid and
nonassessable. The Firm Securities and the Option Securities have been
duly authorized and at the Firm Closing Date or the Option Closing
Date (as the case may be), after payment therefor in accordance
herewith, will be validly issued, fully paid and nonassessable. At
the Firm Closing Date or the Option Closing Date, no holders of
outstanding shares of capital stock of the Company will be entitled as
such to any preemptive or other rights to subscribe for any Common
Stock, and no holder of securities of the Company has any right which
has not been fully exercised or waived to require the Company to
register the offer or sale of any securities owned by such holder
under the Act in the public offering contemplated by this Agreement.
(viii) The capital stock of the Company
conforms in all material respects to the description thereof contained
in the Prospectus.
(ix) Except as disclosed in the
Prospectus, there are no outstanding (A) securities or obligations of
the Company or any of its subsidiaries convertible into or
exchangeable for any capital stock of the Company or any such
subsidiary, (B) warrants, rights or options to subscribe for or
purchase from the Company or any such subsidiary any such capital
stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any such subsidiary
to issue any shares of capital stock,
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any such convertible or exchangeable securities or obligations, or any
such warrants, rights or options.
(x) The consolidated financial
statements and schedules of the Company and the financial statements
of Heritage Credit Services, Inc. ("Heritage") and Corporate Capital
Leasing Group, Inc. ("CCL") included in the Registration Statement and
the Prospectus fairly present the financial position of the Company
and its consolidated subsidiaries and, to the Company's knowledge,
Heritage and CCL, respectively, and the results of operations and cash
flows of the Company and its consolidated subsidiaries and, to the
Company's knowledge, Heritage and CCL as of the dates and periods
therein specified. Such financial statements and schedules of the
Company, and to the Company's knowledge, such financial statements of
Heritage and CCL, have been prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied
throughout the periods involved (except as otherwise noted therein).
The pro forma financial statements of the Company and its subsidiaries
and the related notes set forth in the Registration Statement and the
Prospectus present fairly in all material respects the information
shown therein, have been prepared in accordance with the applicable
requirements of Rule 11-02 of Regulation S-X promulgated by the
Commission, have been properly compiled on the pro forma bases
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 to give effect to the proposed
transactions referred to therein. The selected financial data set
forth under the captions "Capitalization" and "Selected Consolidated
Financial Data" in the Prospectus fairly present, in accordance with
GAAP on the basis stated in the Prospectus (or such Preliminary
Prospectus), the information included therein.
(xi) Xxxxxx Xxxxxxxx LLP, BDO Xxxxxxx,
LLP and MacDade Xxxxxx LLP, who have audited certain financial
statements of the Company and its consolidated subsidiaries and
Heritage and CCL, respectively, and delivered their reports with
respect to the audited consolidated financial statements included in
the Registration Statement and the Prospectus, are independent public
accountants as required by the Act and the applicable rules and
regulations thereunder.
(xii) The execution and delivery of this
Agreement have been duly authorized by the Company and this Agreement
has been duly executed and delivered by the Company.
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(xiii) No legal or governmental proceedings
are pending to which the Company or any of its subsidiaries is a party
or to which the property of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not described therein, and to the
Company's knowledge, no such proceedings have been threatened against
the Company or any of its subsidiaries or with respect to any of their
respective properties; and no contract or other document is required
to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that is not
described therein or filed as required.
(xiv) The issuance, offering and sale of
the Securities to the Underwriters by the Company pursuant to this
Agreement, the compliance by the Company with the other provisions of
this Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained, such as may be required under state
securities or blue sky laws, such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") and, if the
Registration Statement filed with respect to the Securities (as
amended) is not effective under the Act as of the time of execution
hereof, such as may be required (and shall be obtained as provided in
this Agreement) under the Act, or (B) conflict with or result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties are bound, or the
charter documents or bylaws of the Company or any of its subsidiaries,
or any statute or any judgment, decree, order, rule or regulation of
any court or other governmental authority or any arbitrator applicable
to the Company or any of its subsidiaries.
(xv) Subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business or properties
which is reasonably likely to have or result in a Material Adverse
Effect from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding and there has not been any event,
circumstance, or development that results in, or that the Company
believes is reasonably likely to result in, a Material
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Adverse Effect, except in each case as described in or contemplated by
the Prospectus.
(xvi) The Company has not, directly or
indirectly (except for the sale of Securities under this Agreement)
(i) taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities, or (ii)
since the filing of the Registration Statement (A) sold, bid for,
purchased or paid anyone any compensation for soliciting purchases of,
the Securities or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of the Company.
(xvii) Neither the Company nor any of its
subsidiaries nor, to the Company's knowledge, any employee of the
Company or its subsidiaries has made any payment of funds of the
Company or its subsidiaries prohibited by law and no funds of the
Company or its subsidiaries have been set aside to be used for any
payment prohibited by law.
(xviii) (a) The Company and its subsidiaries
possess all certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses except where the failure to
possess any such item is not reasonably likely to have a Material
Adverse Effect, and (b) neither the Company nor any such subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit that,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, is reasonably likely to have a Material Adverse
Effect, except as described in or contemplated by the Prospectus.
(xix) The Company is not an investment
company under the Investment Company Act of 1940, as amended (the
"1940 Act"), and this transaction will not cause the Company to become
an investment company subject to registration under the 1940 Act.
(xx) The Company and each of its
subsidiaries has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file is not
reasonably likely to have a Material Adverse Effect) and has paid all
taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent
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that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as described in or contemplated by the Prospectus or which
would not result in a Material Adverse Effect.
(xxi) The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain asset accountability; (C) access to assets is permitted only
in accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxii) Except as described in the
Registration Statement and the Prospectus, no default exists,
and no event has occurred that, with notice or lapse of time or both,
is reasonably likely to constitute a default, in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
the Company, any of its subsidiaries or any of their respective
properties is bound or may be affected, in any respect that would have
a Material Adverse Effect.
(xxiii) The Company has not distributed and,
prior to the later of (A)the Firm Closing Date or any Option Closing
Date and (B) the completion of the distribution of the Securities,
will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or Term Sheet or any amendment or supplement thereto, or
other materials, if any, permitted by the Act.
(xxiv) Neither the Company nor any of its
subsidiaries owns any items of real property, and each of them has
marketable title to all personal property owned by it, in each case
free and clear of any security interests, liens, encumbrances,
equities, claims and other defects, except as shown on the financial
statements set forth in the Registration Statement and which do not
interfere with the use made or proposed to be made of such property by
the Company or such subsidiary, and any real property and buildings
held
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under lease by the Company or any such subsidiary are held under
valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Company or such subsidiary,
in each case except as described in or contemplated by the Prospectus.
(xxv) No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the Company's
knowledge, is threatened or imminent that is reasonably likely to
result in a Material Adverse Effect, except as described in or
contemplated by the Prospectus.
(xxvi) The Company and its subsidiaries own
or possess, or can acquire on reasonable terms, all material
trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by
them in connection with their respective businesses, and neither the
Company nor any such subsidiary has received any notice of
infringement of or conflict with asserted rights of any third party
with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling, or
finding, is reasonably likely to have a Material Adverse Effect,
except as described in or contemplated by the Prospectus.
(xxvii) The Company and each of its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged;
and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that is not reasonably likely to have a Material
Adverse Effect, except as described in or contemplated by the
Prospectus.
(xxviii) Neither the Company nor any of its
subsidiaries has violated any foreign, Federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants, nor any Federal or state law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable
Federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder except where any such violations would not,
singly or in the aggregate, have a Material Adverse Effect.
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(xxix) Subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, (A) neither the Company nor any of its subsidiaries has
incurred any material liability or obligation, direct or contingent,
or entered into any material transaction not in the ordinary course of
business; and (B) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock, except in each case as
described in or contemplated by the Prospectus;
(b) Any certificate signed by any officer of the Company
and delivered to the Representatives or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to each Underwriter, as
to the matters covered thereby.
(c) Each Selling Stockholder represents and warrants to,
and agrees with, each of the several Underwriters that:
(i) Such Selling Stockholder has, and on the Firm
Closing Date hereinafter mentioned will have, good and valid title to
the Firm Securities proposed to be sold by such Selling Stockholder
hereunder on such Firm Closing Date and full right, power and
authority to enter into this Agreement and to sell, assign, transfer
and deliver such Firm Securities hereunder, free and clear of all
voting trust arrangements, liens, encumbrances, equities, security
interests, restrictions and claims whatsoever, and upon delivery of
and payment for such Firm Securities hereunder, such Selling
Stockholder will convey to the Underwriters good and valid title
thereto, free and clear of all liens, encumbrances, equities, claims,
restrictions, security interests, voting trusts or other defects of
title whatsoever.
(ii) Such Selling Stockholder has executed and
delivered a Power of Attorney and caused to be executed and delivered
on its behalf a Custody Agreement (hereinafter collectively referred
to as the "Stockholders Agreement," and in connection herewith such
Selling Stockholder further represents, warrants and agrees that such
Selling Stockholder has deposited in custody, under the Stockholders
Agreement, with the agent named therein (the "Agent") as custodian,
certificates in negotiable form for the Firm Securities to be sold
hereunder by such Selling Stockholder, for the purpose of further
delivery pursuant to this Agreement. Such Selling Stockholder agrees
that the Firm Securities to be sold by such Selling Stockholder on
deposit with the Agent are subject to the interests of the Company and
the Underwriters to the extent set forth herein and in the
Stockholders Agreement, that the arrangements made for such custody
are to that extent
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irrevocable, and that the obligations of such Selling Stockholder
hereunder shall not be terminated, except as provided in this
Agreement or in the Stockholders Agreement, by any act of such Selling
Stockholder, by operation of law, by the termination or revocation of
the trust agreement or other governing documents of such Selling
Stockholder or by the occurrence of any other event. If the trust
agreement or other governing documents of such Selling Stockholder
should be terminated or revoked before the delivery of the Firm
Securities hereunder, the documents evidencing the Firm Securities
then on deposit with the Agent shall be delivered by the Agent in
accordance with the terms and conditions of this Agreement and the
Stockholders Agreement as if such termination, revocation or other
event had not occurred, regardless of whether or not the Agent shall
have received notice thereof. This Agreement and the Stockholders
Agreement have been duly executed and delivered by or on behalf of
such Selling Stockholder and the form of the Stockholders Agreement
has been delivered to you.
(iii) The performance of this Agreement and the
Stockholders Agreement and the consummation of the transactions
contemplated hereby and by the Stockholders Agreement will not result
in a breach or violation by such Selling Stockholder of any of the
terms or provisions of, or constitute a default by such Selling
Stockholder under any material indenture, mortgage, deed of trust,
trust (constructive or other), loan agreement, lease, franchise,
license or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder or any of
its properties is bound, or any judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to
such Selling Stockholder or any of its properties, except (x) for any
violation, breach, or default that could not have an adverse effect on
such Selling Stockholder's sale of the Firm Securities to be sold
hereunder or such Selling Stockholder's performance of any of its
other obligations hereunder or under the Stockholders Agreement and
(y) that the Selling Stockholder makes no representation or warranty
hereunder with respect to federal or state securities or "blue sky"
laws or any similar laws in applicable foreign jurisdictions.
(iv) Such Selling Stockholder has not taken and will
not take, directly or indirectly, any action designed to or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Common Stock of the Company to
facilitate the sale or resale of the Securities.
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(v) Each Preliminary Prospectus that has been
distributed by the Underwriters or the Company to prospective
investors and the Prospectus, insofar as they include or reflect
information with respect to such Selling Stockholder, has conformed in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and 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 in light
of the circumstances under which they were made; and neither the
Registration Statement nor the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), nor any
amendment or supplement thereto, insofar as they include or reflect
information with respect to such Selling Stockholder, will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(vi) Such Selling Stockholder is not aware that any
of the representations or warranties of the Company set forth in
Section 2(a) above is untrue or inaccurate in any material respect.
(vii) All stock transfer or other taxes (other than
income taxes), if any, that are required to be paid in connection with
the sale and transfer of the Firm Securities proposed to be sold by
such Selling Stockholder to the several Underwriters pursuant to this
Agreement will be fully paid or provided for by such Selling
Stockholder.
(viii) No consent, approval, authorization or order
of, or any filing with, any court or governmental agency or body is
required for the consummation by such Selling Stockholder of the
transactions on its part contemplated in this Agreement, the Power of
Attorney or the Custody Agreement, except as may be required under the
Act or state securities or "blue sky" laws or similar laws in
applicable foreign jurisdictions or by the NASD.
(ix) Other than as permitted by the Act and the
rules and regulations of the Commission thereunder, such Selling
Stockholder has not distributed and will not distribute any
preliminary prospectus, the Prospectus or any other offering material
in connection with the offering and sale of the Firm Securities
proposed to be sold by the Selling Stockholder.
(d) Each Selling Stockholder agrees with the Company and the
Underwriters not to offer to sell, sell or contract to sell or
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otherwise dispose of any shares of Common Stock or securities convertible into
or exchangeable for any shares of Common Stock in accordance with the terms of
a separate letter agreement between such Selling Stockholder and the
Representatives as provided in Section 7(e) hereof.
(e) Any certificate signed by or on behalf of a Selling
Stockholder and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Selling
Stockholder, to each Underwriter, as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, (i) the Company agrees to sell 2,083,334 Firm
Securities to the Underwriters, (ii) each Selling Stockholder agrees, severally
and not jointly, to sell the number of Firm Securities set forth opposite such
Selling Stockholder's name in Schedule II hereto, and (iii) each of the
Underwriters, severally and not jointly, agrees to purchase from the Company
and the respective Selling Stockholders, at a purchase price of $_____ per
share, the number of Firm Securities (subject to such adjustment to eliminate
fractional shares as you may determine) that bears the same proportion to the
total number of Firm Securities to be sold by the Company and each of the
Selling Stockholders, respectively, as the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule 1 hereto bears to the total
number of Firm Securities. Certificates in definitive form for the Firm
Securities that the several Underwriters have agreed to purchase hereunder, and
in such denomination or denominations and registered in such name or names as
the Representatives request upon notice to the Company and the Agent at least
48 hours prior to the Firm Closing Date, shall be delivered by or on behalf of
the Company and the Selling Stockholders to the Representatives for the
respective accounts of the Underwriters, against payment by or on behalf of the
Underwriters of the aggregate purchase price therefor by wire transfers in same
day funds (the "Wired Funds") to accounts specified by the Company and the
Agent, respectively. Documents required to be delivered pursuant to this
Agreement in connection with such delivery of and payment for the Firm
Securities shall be made at the offices of Xxxxxx & Xxxxxx L.L.P., 2300 First
City Tower, 0000 Xxxxxx, Xxxxxxx, Xxxxx 00000-0000 at 9:00 a.m., Central time,
on ____________, 1998, or at such other place, time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, such time and date of delivery against
payment being herein referred to
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as the "Firm Closing Date." The Company and the Selling Stockholders will make
such certificates for the Firm Securities available for checking and packaging
by the Representatives at the location in New York, New York specified by the
Representatives at least 24 hours prior to the Firm Closing Date.
(b) For the sole purpose of covering any over-allotments
in connection with the distribution and sale of the Firm Securities as
contemplated by the Prospectus, the Company hereby grants to the several
Underwriters an option to purchase, severally and not jointly, the Option
Securities. The purchase price to be paid for any Option Securities shall be
the same price per share as the price per share for the Firm Securities set
forth above in paragraph (a) of this Section 3. The option granted hereby may
be exercised as to all or any part of the Option Securities from time to time
within thirty days after the date of the Prospectus (or, if such 30th day shall
be a Saturday or Sunday or a holiday, on the next business day thereafter when
the Nasdaq National Market is open for trading). The Underwriters shall not be
under any obligation to purchase any of the Option Securities prior to the
exercise of such option. The Representatives may from time to time exercise
the option granted hereby by giving notice in writing or by telephone
(confirmed within 24 hours in writing) to the Company setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment
for such Option Securities. Any such date of delivery shall be determined by
the Representatives but shall not be earlier than two business days or later
than five business days after such exercise of the option and, in any event,
shall not be earlier than the Firm Closing Date. The time and date set forth
in such notice, or such other time on such other date as the Representatives
and the Company may agree upon or as the Representatives may determine pursuant
to Section 9 hereof, is herein called the "Option Closing Date" with respect to
such Option Securities. Upon exercise of the option as provided herein, the
Company shall become obligated to sell to each of the several Underwriters,
and, subject to the terms and conditions herein set forth, each of the
Underwriters (severally and not jointly) shall become obligated to purchase
from the Company, the same percentage of the total number of the Option
Securities as to which the several Underwriters are then exercising the option
as such Underwriter is obligated to purchase of the aggregate number of Firm
Securities, as adjusted by the Representatives in such manner as it deems
advisable to avoid fractional shares. If the option is exercised as to all or
any portion of the Option Securities, one or more certificates in definitive
form for such Option Securities, and payment therefor, shall be delivered on
the related Option Closing Date in the manner, and upon the terms and
conditions, set forth in paragraph (a) of this Section 3, except that reference
therein to the Firm Securities and the Firm Closing
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Date shall be deemed, for purposes of this paragraph 3(b), to refer to such
Option Securities and Option Closing Date, respectively.
(c) It is understood that you, individually and not as
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations hereunder.
(d) The Company and the Selling Stockholders hereby
acknowledge that the wire transfer by or on behalf of the Underwriters of the
purchase price for any Securities does not constitute closing of a purchase and
sale of the Securities. Only execution and delivery of a receipt (by facsimile
or otherwise) for the Securities by the Underwriters indicates completion of
the closing of a purchase of the Securities from the Company and the Selling
Stockholders. Furthermore, in the event that the Underwriters wired funds to
the Company and the Selling Stockholders prior to the completion of the closing
of a purchase of Securities, the Company and the Selling Stockholders hereby
acknowledge that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company and the Selling Stockholders
will not be entitled to the Wired Funds and shall return the Wired Funds to the
Underwriters as soon as practicable (by wire transfer of same-day funds) upon
demand. In the event that the closing of a purchase of Securities is not
completed and the Wired Funds are not returned by the Company and the Selling
Stockholders to the Underwriters on the same day the Wired Funds were received
by the Company and the Selling Stockholders, the Company and the Selling
Stockholders agree to pay to the Underwriters, pro rata in proportion to the
number of Securities being sold by the Company and each of the respective
Selling Stockholders, in respect of each day the Wired Funds are not returned
by it, in same-day funds, interest at the Prime Rate as stated in the Wall
Street Journal on the date hereof on the amount of such Wired Funds.
4. Offering by the Underwriters. Upon your authorization of the
release of the Firm Securities, the several Underwriters propose to offer the
Firm Securities for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees
with each of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, to become effective as promptly as possible. If required, the
Company will file the Prospectus or any Term Sheet
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that constitutes a part thereof and any amendment or supplement thereto with
the Commission in the manner and within the time period required by Rules 434
and 424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Company (i) will
comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the Prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement of which the Representatives shall not previously have
been advised and furnished with a copy for a reasonable period of time prior to
the proposed filing and as to which filing the Representatives shall reasonably
object. The Company will prepare and file with the Commission, in accordance
with the rules and regulations of the Commission, promptly upon request by the
Representatives or counsel for the Underwriters, any amendments to the
Registration Statement or amendments or supplements to the Prospectus that may
be necessary or advisable in connection with the distribution of the Securities
by the several Underwriters, and will use its best efforts to cause any such
amendment to the Registration Statement to be declared effective by the
Commission as promptly as possible. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time when the
Registration Statement or any amendment thereto has been filed or declared
effective or the Prospectus or any amendment or supplement thereto has been
filed and will provide to the Representatives copies of each such filing.
(b) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, (ii) the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, (iii) the institution, threatening or
contemplation of any proceeding for any such purpose, or (iv) any request made
by the Commission for amending the Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company will
use its best efforts to prevent the issuance of any such stop order and, if any
such stop order is issued, to obtain the withdrawal thereof as promptly as
possible.
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(c) If, at any time prior to the later of (i) the final
date when a prospectus relating to the Securities is required to be delivered
under the Act or (ii) the Option Closing Date, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Prospectus to comply with the
Act or the rules or regulations of the Commission thereunder, the Company will
promptly notify the Representatives thereof and, subject to Section 5(a)
hereof, will prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such compliance.
(d) The Company will, without charge, provide (i) to each
of the Representatives and to counsel for the Underwriters a signed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) and any Rule 462(b)
Registration Statement, (ii) to each other Underwriter, a conformed copy of
such registration statement and any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto) and (iii) so long as
a prospectus relating to the Securities is required to be delivered under the
Act, as many copies of each Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto as the Representatives may reasonably request;
without limiting the application of clause (iii) of this sentence, the Company,
not later than the business day following the date of determination of the
public offering price, will deliver to the Underwriters, without charge, as
many copies of the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming orders that
are expected to settle on the Firm Closing Date.
(e) If the Company elects to rely on Rule 462(b), the
Company shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay or make arrangements for the
payment of the applicable fees in accordance with Rule 111 promulgated under
the Act not later than 10:00 P.M., Eastern Time on the date of this Agreement.
(f) The Company, as soon as practicable, will make
generally available to its securityholders and to the Representatives a
consolidated earnings statement of the Company and its subsidiaries that
satisfies the provisions of Section 11(a) of the Act and Rule 158 thereunder.
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(g) The Company will apply the net proceeds from the sale
of the Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without
the prior written consent of Friedman, Billings, Xxxxxx & Co., Inc., on behalf
of the Underwriters, offer, sell, offer to sell, contract to sell, pledge,
grant any option to purchase or otherwise sell or dispose (or announce any
offer, sale, offer of sale, contract of sale, pledge, grant of any option to
purchase or other sale or disposition) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of 90 days after the date hereof, except shares
issued pursuant to this Agreement, shares issued pursuant to the exercise of
conversion rights or warrants, or employee stock options outstanding on the
date hereof, options granted or shares issued pursuant to existing stock option
plans, and shares issued in connection with any acquisition, provided the
persons acquiring shares in any such acquisition may not sell such shares
during such 90 day period.
(i) The Company will not, directly or indirectly, (i)
take any action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities or (ii)(A) sell, bid for, purchase, or pay anyone
any compensation for soliciting purchases of, the Securities or (B) pay or
agree to pay to any person any compensation for soliciting another to purchase
any other securities of the Company.
(j) The Company will obtain the lockup agreements
described in Section 7(e) hereof prior to the Firm Closing Date.
(k) The Company will, for a period of five (5) years from
the date hereof, deliver to the Underwriters copies of annual reports and all
other definitive documents, reports and information furnished by the Company to
its securityholders or filed with any securities exchange or automated
quotation system pursuant to the requirements of such exchange or automated
quotation system or filed with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Company will
deliver to the Underwriters similar reports with respect to "significant
subsidiaries," as that term is defined in the rules and regulations of the
Commission, which are not consolidated in the Company's financial statements.
(l) The Company will cause the Securities to be duly
included for quotation on the Nasdaq National Market prior to the Firm Closing
Date. The Company will use its best efforts to ensure
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that the Securities remain included for quotation on the Nasdaq National Market
following the Firm Closing Date.
6. Expenses. The Company will pay all costs and expenses
incident to the performance of its and the Selling Stockholders obligations
under this Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 11 hereof,
including all costs and expenses incident to (i) the printing or other
production of documents with respect to the transactions, including any costs
of printing the Registration Statement originally filed with respect to the
Securities and any amendment thereto, any Rule 462(b) Registration Statement,
any Preliminary Prospectus and the Prospectus and any amendment or supplement
thereto, this Agreement and any blue sky memoranda, (ii) all arrangements
relating to the delivery to the Underwriters of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel, the accountants and
any other experts or advisors retained by the Company, (iv) the filing of the
Registration Statement with the Commission, including filing fees and other
fees and expenses incident thereto, (v) preparation, issuance and delivery to
the Underwriters of any certificates evidencing the Securities, including
transfer agent's and registrar's fees, (vi) the qualification of the Securities
under state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriters relating thereto, (vii) the
filing of the Registration Statement and Prospectus with the National
Association of Securities Dealers, Inc. relating to the Securities, including
the fees and disbursements of counsel for the Underwriters relating to such
filing, and (viii) the quotation of the Securities on the Nasdaq National
Market. If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 11(a)(i) hereof or because of any failure, refusal or
inability on the part of the Company or any Selling Stockholder to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder other than by reason of a default by any of the Underwriters, the
Company will reimburse the Representatives upon demand for all reasonable
out-of-pocket expenses (including counsel fees and disbursements) that shall
have been incurred by it in connection with the proposed purchase and sale of
the Securities. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
The provisions of this Section shall not affect any agreement
which the Company and the respective Selling Stockholders may make for the
allocation or sharing of the expenses and costs referred to above.
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7. Conditions of the Underwriters' Obligations. The obligations
of the several Underwriters to purchase and pay for the Firm Securities shall
be subject to the accuracy of the representations and warranties of the Company
and the Selling Stockholders contained herein as of the date hereof, and as of
the Firm Closing Date, as if made on and as of the Firm Closing Date, the
accuracy of the statements of the Company's officers made pursuant to the
provisions hereof, the performance by the Company of its covenants and
agreements hereunder and the following additional conditions:
(a) If the Original Registration Statement has not been
declared effective as of the time of execution hereof, the Original
Registration Statement shall have been declared effective not later than 11:00
A.M., Eastern Time, on the business day after the date hereof, or such later
time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission
in the manner and within the time period required by Rules 434 and 424(b) under
the Act; no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto shall have been issued, and no proceedings
for that purpose shall have been instituted or threatened or, to the knowledge
of the Company or the Representatives, shall be contemplated by the Commission;
and the Company shall have complied with any request of the Commission for
additional information to be included in the Registration Statement or the
Prospectus or otherwise.
(b) The Representatives shall have received an opinion,
dated the Firm Closing Date, of Xxxxxx & Xxxxxx L.L.P., counsel for the Company
and the Selling Stockholders, to the effect that:
(i) the Company and each of its
subsidiaries (the "Subsidiaries") have been duly incorporated and are
validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation and are duly qualified
to transact business as foreign corporations and are in good standing
under the laws of all other jurisdictions where the ownership or
leasing of their respective properties or the conduct of their
respective businesses requires such qualification, except where the
failure to be so qualified is not reasonably likely to have a Material
Adverse Effect;
(ii) the Company and each of the
Subsidiaries have the corporate power to own or lease their respective
properties and conduct their respective businesses as described in the
Registration Statement and the Prospectus, and the Company has the
corporate power to enter into this
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Agreement and to carry out all the terms and provisions hereof to be
carried out by it;
(iii) the issued and outstanding shares of
capital stock of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and non-assessable and are owned by
the Company free and clear of any security interests, liens,
encumbrances or claims;
(iv) the Company has an authorized,
issued and outstanding capitalization as set forth in the Prospectus;
all of the issued shares of capital stock of the Company (including
the Firm Securities to be sold by the Selling Stockholders) have been
duly authorized and validly issued and are fully paid and
nonassessable, and, to the knowledge of such counsel, were not issued
in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities; the Firm Securities to be sold
by the Company hereunder have been duly authorized by all necessary
corporate action of the Company and, when issued and delivered to and
paid for by the Underwriters pursuant to this Agreement, will be
validly issued, fully paid and nonassessable; to the knowledge of such
counsel, no holders of outstanding shares of capital stock of the
Company are entitled as such to any preemptive or other rights to
subscribe for any of the Securities; and, to the knowledge of such
counsel, no holders of securities of the Company have any rights which
have not been fully exercised or waived to have such securities
registered under the Registration Statement;
(v) the statements set forth under the
headings "Management - Stock Option Plan," and "Description of Capital
Stock" in the Prospectus, insofar as such statements purport to
summarize certain documents or matters of law, are accurate in all
material respects;
(vi) the execution and delivery of this
Agreement have been duly authorized by all necessary corporate action
of the Company and by all necessary action of each Selling Stockholder
and this Agreement has been duly executed and delivered by the Company
and by or on behalf of each Selling Stockholder;
(vii) to the knowledge of such counsel,
(A) no legal or governmental proceedings are pending to which the
Company or any of the Subsidiaries is a party or to which the property
of the Company or any of the Subsidiaries is subject that are required
to be described in the Registration Statement or the Prospectus and
are not described therein and no such proceedings have been threatened
against the Company
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or any of the Subsidiaries or with respect to any of their respective
properties and (B) no contract or other document is required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that is not
described therein or filed as required;
(viii) the issuance, offering and sale of the
Securities to the Underwriters by the Company and the Selling
Stockholders pursuant to this Agreement, the compliance by the Company
and the Selling Stockholders with the other provisions of this
Agreement and the consummation of the other transactions herein
contemplated do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been obtained and such as may be required under
state securities or blue sky laws and by the NASD, or (B) conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries or any Selling
Stockholder is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound, or the
charter documents or bylaws of the Company or any of the Subsidiaries,
or the organizational documents or any trust agreement of any Selling
Stockholder or, so far as it is known to such counsel, any statute or
any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator having jurisdiction over the
Company or any of the Subsidiaries or any Selling Stockholder, except,
in the case of the Company, in each case, where such conflict, breach,
violation or default is not reasonably likely to have a Material
Adverse Effect and other than Federal or state securities or blue sky
laws, as to which such counsel need not express an opinion in this
paragraph;
(ix) the Registration Statement is
effective under the Act; any required filing of the Prospectus, or any
Term Sheet that constitutes a part thereof, pursuant to Rules 434 and
424(b) has been made in the manner and within the time period required
by Rules 434 and 424(b); and no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto
has been issued, and no proceedings for that purpose have been
instituted or threatened or are contemplated by the Commission;
(x) the Company is not, and the
transactions contemplated by this Agreement will not cause the Company
to become, an investment company subject to registration under the
1940 Act; and
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(xi) the specimen stock certificate of the
Company filed as an exhibit to the Registration Statement is in due
and proper form to evidence shares of Common Stock, has been duly
authorized and approved by the Board of Directors of the Company and
complies with all legal requirements applicable under the Delaware
General Corporation Law.
(xii) the Stockholders Agreement of each
Selling Stockholder has been duly authorized, executed and delivered
by such Selling Stockholder.
(xiii) Upon delivery of certificates for the
Firm Securities to be sold by the Selling Stockholders pursuant to the
Underwriting Agreement, as evidenced by the executed receipt for such
securities by the Underwriters, and payment for such Firm Securities
as provided therein, valid title to such Securities shall pass to the
Underwriters, severally, free and clear of any adverse claim within
the meaning of the Uniform Commercial Code, provided that the
Underwriters are without notice of any defect in the title of such
Securities and take such Securities in good faith.
In addition, such counsel shall state that such counsel is of the
opinion that the Registration Statement and the Prospectus (except the
financial statements and notes thereto, supporting schedules and other
information of a financial or statistical nature included therein, as to which
such counsel need not express any opinion) comply as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations thereunder. In passing upon the form of the Registration Statement
and the Prospectus, such counsel may state that such counsel has necessarily
assumed the correctness and completeness of the statements made therein; that
such counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except to the extent set forth in
subparagraph (v) above); and that such counsel has not independently verified
the accuracy, completeness or fairness of such statements (except as
aforesaid). Without limiting the foregoing, such counsel may state that such
counsel assumes no responsibility for and has not independently verified the
accuracy, completeness or fairness of the financial statements and notes
thereto and other financial and statistical data included in the Registration
Statement and has not examined the financial records from which such statements
and data are derived. Such counsel may note that, although certain portions of
the Registration Statement have been included therein on the authority of
"experts" within the meaning of the Act, such counsel is not an expert with
respect to any portion of the Registration Statement. However, such counsel
shall state that such counsel has participated in conferences with
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officers and other representatives of the Company, representatives of the
independent accountants of the Company, and with the underwriters'
representatives and counsel, at which the contents of the Registration
Statement and Prospectus and related matters were discussed, and that such
counsel has also reviewed certain corporate documents furnished to them by the
Company. Such counsel shall state that based on such participation and review
(relying as to materiality to a certain extent upon the officers and the other
representatives of the Company), and subject to the limitations described
above, no information has come to such counsel's attention that causes them to
believe that the Registration Statement, at the time it became effective or as
of the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein no misleading, or that the
Prospectus, as of its date or as of the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such counsel may also state that the opinions of such counsel relate
solely to, are based solely upon and are limited exclusively to the laws of the
State of Delaware and the federal laws of the United States of America, to the
extent applicable.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem(s) proper, on certificates of the Selling
Stockholders and of responsible officers of the Company and public officials
and opinions of such other counsel as are reasonably acceptable to the
Representatives.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representative shall have received from Xxxxxx
Xxxxxxxx LLP, BDO Xxxxxxx, LLP and MacDade Xxxxxx LLP a letter or letters
dated, respectively, the date hereof and the Firm Closing Date, in form and
substance reasonably satisfactory to the Representatives.
In the event that the letters referred to above set forth any such
changes, decreases or increases which, in the reasonable discretion of the
Representatives, are reasonably likely to result in a Material Adverse Effect,
it shall be a further condition to the obligations of the Underwriters that
such letters shall be accompanied by a written explanation of the Company as to
the significance thereof, unless the Representatives deem such explanation
unnecessary.
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References to the Registration Statement and the Prospectus in this
paragraph (c) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(d) The Representatives shall have received a
certificate, dated the Firm Closing Date, of Xxxxxx X. Xxxxxxx and Xxxxx X. Xx
in their capacities as the principal executive officer and the principal
financial officer, respectively, of the Company to the effect that:
(i) the representations and warranties
of the Company in this Agreement are true and correct in all material
respects as if made on and as of the Firm Closing Date; the
Registration Statement, as amended as of the Firm Closing Date, does
not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as of the
Firm Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Company has performed all covenants
and agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto
has been issued, and no proceedings for that purpose have been
instituted or threatened or, to the best of the Company's knowledge,
are contemplated by the Commission;
(iii) subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has
sustained any loss or interference with their respective businesses or
properties reasonably likely to have or result in a Material Adverse
Effect from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding, and there has not been any event,
circumstance, or development that has resulted in, or that the Company
believes is reasonably likely to result in, a Material Adverse Effect,
except in each case as described in or contemplated by the Prospectus
(exclusive of any amendment or supplement thereto); and
(iv) subsequent to the respective dates
as of which information is given in the Registration Statement and
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the Prospectus, (A) neither the Company, nor any of its Subsidiaries
has incurred any material liability or obligation, direct or
contingent, or entered into any material transaction not in the
ordinary course of business; and (B) the Company has not purchased any
of its outstanding capital stock, nor declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock, except
in each case as described in or contemplated by the Prospectus.
(e) The Representatives shall have received from each
person who is a director or officer of the Company and from each Selling
Stockholder an agreement to the effect that such person will not directly or
indirectly, without the prior written consent of the Representatives, offer,
sell, offer to sell, contract to sell, pledge, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, pledge,grant of an option to purchase or other sale or disposition) of
any shares of Common Stock or any securities convertible into, or exchangeable
or exercisable for, shares of Common Stock for a period of 90 days after the
date of this Agreement.
(f) On or before the Firm Closing Date, the
Representatives and counsel for the Underwriters shall have received such
further certificates, documents or other information as they may have
reasonably requested from the Company.
(g) Prior to the commencement of the offering of the
Securities, the Securities shall have been included for trading on the Nasdaq
National Market.
(h) The Representatives shall have received an opinion,
dated the Firm Closing Date, of XxXxxxxxx, Will & Xxxxx, counsel for the
Underwriters, with respect to the issuance and sale of the Firm Securities by
the Company, the Registration Statement and Prospectus, and such other related
matters as the Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(i) All the representations and warranties of each Selling
Stockholder contained in this Agreement shall be true and correct in all
material respects on the Firm Closing Date with the same force and effect as if
made on and as of the Firm Closing Date and you shall have received on the Firm
Closing Date a certificate dated the Closing Date from or on behalf of each
Selling Stockholder to such effect and to the effect that such Selling
Stockholder has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied
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with or satisfied by such Selling Stockholder on or prior to the Firm Closing
Date.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
8. Indemnification and Contribution.
(a) The Company and each Selling Stockholder, jointly and
severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which such Underwriter or such controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto
or the omission or alleged omission to state in the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse,
as incurred, 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, defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that neither the Company nor any Selling
Stockholder will be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in such
Registration Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto in reliance upon
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and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein; and
provided, further that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any such indemnified Underwriter or its respective officers,
shareholders, employees, directors and agents, and neither the Company nor any
Selling Stockholder shall be liable to any such indemnified Underwriter or its
respective officers, shareholders, employees, directors and agents, from whom
the person asserting any such losses, claims, expense, damage or liabilities
purchased the Securities concerned, to the extent that any such loss, claim,
expense, damage or liability of such indemnified Underwriter or its respective
officers, shareholders, employees, directors and agents results from the fact
that there was not sent or given to such person at or prior to the written
confirmation of the sale of such securities to such person, a copy of the
Prospectus, as the same may be amended or supplemented, and the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus was corrected
in such Prospectus and the Company had previously furnished copies thereof to
such indemnified Underwriter on a timely basis to permit the Prospectus (as the
same may be amended or supplemented) to be sent or given. This indemnity
agreement will be in addition to any liability that the Company or any Selling
Stockholder may otherwise have. Neither the Company nor any Selling
Stockholder will, without the prior written consent of the Representatives,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any Underwriter or any
person who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or any such director, officer of
the Company, or controlling person of the Company or any Selling Stockholder
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon (i) any untrue
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statement or alleged untrue statement of any material fact contained in the
Registration Statement or any amendment thereto, any Preliminary Prospectus or
the Prospectus or any amendment or supplement thereto, or any Application or
(ii) the omission or the alleged omission to state therein a material fact
required to be stated in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, 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 reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through the Representatives specifically for use therein; and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person or any Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or any action in respect thereof. 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 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, 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
otherwise than under this Section 8. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded or
shall have been advised by its counsel that there may be one or more legal
defenses available to it and/or other indemnified parties that conflict with
those available to the indemnifying party, the indemnifying party shall not
have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal
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or other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representative in the case of
paragraph (a) of this Section 8, representing the indemnified parties under
such paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the
consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
(i) the relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party on the other hand from the offering of the
Securities or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other hand in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Stockholders and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the public
of the Securities, in each case as set forth on the cover of the Prospectus.
The relative fault of the parties shall be determined
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by reference to, among, other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company, the
Selling Stockholders and the Underwriters agree that it would not be equitable
if the amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total underwriting commission received by such Underwriter hereunder in
connection with the Securities underwritten by it and distributed to the
public, less the aggregate amount of any damages that such Underwriter has
otherwise been required to pay in respect of the same or any substantially
similar claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11 (f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute hereunder are several in proportion to
their respective underwriting obligations and not joint, and contributions
among Underwriters shall be governed by the provisions of the Agreement Among
Underwriters. For the purposes of this paragraph 8(d), each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company.
(e) Each Selling Stockholder shall be liable under this
Section 8 only for an amount not exceeding the net proceeds received by such
Selling Stockholder from the sale of Firm Securities hereunder.
9. Default of Underwriters. If one or more Underwriters default
in their obligations to purchase Firm Securities or Option Securities hereunder
and the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, then the other Underwriters may
make arrangements satisfactory to the Representatives for the
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purchase of such Securities by other persons (who may include one or more of
the nondefaulting Underwriters, including the Representatives), but if no such
arrangements are made by the Firm Closing Date or the related Option Closing
Date, as the case may be, the other Underwriters shall be obligated severally
in proportion to their respective commitments hereunder to purchase the Firm
Securities or Option Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase. If one or more Underwriters so
default with respect to an aggregate number of Securities that is more than ten
percent of the aggregate number of Firm Securities or Option Securities, as the
case may be, to be purchased by all of the Underwriters at such time hereunder,
and if arrangements satisfactory to the Representatives are not made within 36
hours after such default for the purchase by other persons (who may include one
or more of the nondefaulting Underwriters, including the Representatives) of
the Securities with respect to which such default occurs, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or
the Company other than as provided in Section 10 hereof. In the event of any
default by one or more Underwriters as described in this Section 9, the
Representatives shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3
hereof for not more than seven business days in order that any necessary
changes may be made in the arrangements or documents for the purchase and
delivery of the Firm Securities or Option Securities, as the case may be. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 9. Nothing herein shall relieve any
defaulting Underwriter from liability for its default.
10. Survival. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company and its
officers, the Selling Stockholders and the several Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, the Selling Stockholders, any Underwriter or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
11. Termination.
(a) This Agreement may be terminated with respect to the
Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company and the Agent given
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prior to the Firm Closing Date or the related Option Closing Date,
respectively, in the event that the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Firm Closing Date or such Option Closing Date, respectively,
(i) the Company or any of its
subsidiaries shall have, in the sole judgment of the Representatives,
sustained any loss or interference with their respective businesses or
properties having or resulting in a Material Adverse Effect from fire,
flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental
proceeding or there shall have been any event, circumstance of
development that results in, or that the Company believes would result
in, a Material Adverse Effect, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or
supplement thereto);
(ii) trading in the Common Stock shall
have been suspended by the Commission or the Nasdaq National Market or
trading in securities generally on the New York Stock Exchange or
Nasdaq National Market shall have been suspended or minimum or maximum
prices shall have been established on either such exchange or market
system;
(iii) a banking moratorium shall have been
declared by New York or United States authorities; or
(iv) there shall have been (A) an
outbreak or escalation of hostilities between the United States and
any foreign power, (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States or (C) any
other calamity or crisis or material adverse change in general
economic, political or financial conditions having an effect on the
U.S. financial markets that, in the sole judgment of the
Representatives, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the Securities as contemplated
by the Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this
Section 11 shall be without liability of any party to any other party except as
provided in Section 10 hereof.
12. Information Supplied by Underwriters. The statements set
forth in (i) the last paragraph on the front cover page, (ii) under the heading
"Underwriting" in any Preliminary Prospectus or the Prospectus and (iii) on
page 2 in any Preliminary Prospectus or the
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Prospectus pertaining to stabilization (to the extent such statements relate to
the Underwriters) constitute the only information furnished by any Underwriter
through the Representatives to the Company for the purposes of Sections 2(b)
and 8 hereof. The Underwriters confirm that such statements (to such extent)
are correct.
13. Notices. All communications hereunder shall be in writing
and, if sent to any of the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to Friedman, Billings,
Xxxxxx & Co., Inc., Potomac Tower, 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxxxx; and if sent to the Company, shall
be delivered or sent by mail, telex or facsimile, transmission and confirmed in
writing to the Company at Texas Commerce Tower, Suite 7050, 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000, Attention: Xxxxxx X. Xxxxxxx; and, if sent to the Selling
Stockholders shall be sent to the Agent, c/o the Company.
14. Successors. This Agreement shall inure to the benefit of and
shall be binding upon the several Underwriters, the Company and their
respective successors and legal representatives, and the Selling Stockholders,
and their respective successors and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein, shall be governed by
and construed in accordance with the laws of the Commonwealth of Virginia,
without giving effect to any provisions relating to conflicts of laws.
16. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent
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jurisdiction in the Commonwealth of Virginia, and by execution and delivery of
this Agreement, the Company and each Selling Stockholder accepts for itself and
in connection with its properties, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement. The Company and each
Selling Stockholder designates and appoints Xxxxxx X. Xxxxxxx and such other
persons as may hereafter be selected by the Company irrevocably agreeing in
writing to so serve, as its agent to receive on its behalf service of all
process in any such proceedings in any such court, such service being hereby
acknowledged by the Company and each Selling Stockholder to be effective and
binding service in every respect. A copy of any such process so served shall
be mailed by registered mail to the Company at its address provided in Section
13 hereof, provided, however, that, unless otherwise provided by applicable
law, any failure to mail such copy shall not affect the validity of service of
such process. If any agent appointed by the Company refuses to accept service,
the Company hereby agrees that service of process sufficient for personal
jurisdiction in any action against the Company in the Commonwealth of Virginia
may be made by registered or certified mail, return receipt requested, to the
Company at its address provided in Section 13 hereof, and the Company hereby
acknowledges that such service shall be effective and binding in every respect.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any Underwriter to bring
proceedings against the Company in the courts of any other jurisdiction.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and
each of the several Underwriters.
Very truly yours,
FIRST SIERRA FINANCIAL, INC.
By: ___________________________________
Xxxxxx X. Xxxxxxx
President and Chief Executive
Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
XXXXX XXXXXXX INC.
By: Friedman, Billings, Xxxxxx & Co., Inc.
By:_________________________________
Name:
Title:
For themselves and as the Representatives.
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Schedule I
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
----------- -------------
Friedman, Billings, Xxxxxx & Co., Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx Xxxxxxx Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
____________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . .
============
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Schedule II
Number of
Firm Securities
Selling Stockholders Being Sold
-------------------- ---------------
-------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
=============
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