_______________ Shares
Superior Services, Inc.
Common Stock
($.01 Par Value)
UNDERWRITING AGREEMENT
_______________, 1997
______________________________
______________________________
______________________________
______________________________
c/o ___________________________
______________________________
______________________________
Ladies and Gentlemen:
Superior Services, Inc., a Wisconsin corporation (the
"Company"), proposes to sell to you (herein referred to as the
"Underwriters" or the "Representatives") an aggregate of __________ shares
of the Company's Common Stock, without par value (the "Firm Shares"). The
respective amounts of the Firm Shares to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The
Company also proposes to sell at the Underwriters' option an aggregate of
up to __________ additional shares of the Company's Common Stock (the
"Option Shares") as set forth below.
You have advised the Company (a) that you are authorized to
enter into this Agreement, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Firm
Shares set forth opposite their respective names in Schedule I, plus their
pro rata portion of the Option Shares if you elect to exercise the over-
allotment option in whole or in part for the accounts of the several
Underwriters. The Firm Shares and the Option Shares (to the extent the
aforementioned option is exercised) are herein collectively called the
"Shares."
In consideration of the mutual agreements contained herein and
of the interests of the parties in the transactions contemplated hereby,
the parties hereto agree as follows:
1. Representations and Warranties of the Company.
The Company represents and warrants as follows:
(a) A registration statement on Form S-3 (File No. 333-
_____) with respect to the Shares has been carefully prepared by
the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the Rules
and Regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission under the Act. Copies of such
registration statement, including any amendments thereto, the
preliminary prospectuses contained therein and the exhibits,
financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to you.
Such registration statement, herein referred to as the
"Registration Statement," has been declared effective by the
Commission under the Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this
Agreement. The prospectus constituting a part of the
Registration Statement and the prospectus supplement relating to
the offering of the Shares (the "Prospectus Supplement"),
including all documents incorporated by reference therein, as
from time to time amended or supplemented pursuant to the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or otherwise, are collectively referred to herein as the
"Prospectus." Each preliminary prospectus supplement related to
the offering of the Shares, including the preliminary prospectus
supplement dated _______________, is herein referred to as a
"Preliminary Prospectus Supplement." Any reference herein to
the Registration Statement, the Prospectus or the Preliminary
Prospectus Supplement shall be deemed to refer to and include
the documents incorporated by reference therein, as of the date
of such Registration Statement, Prospectus or Preliminary
Prospectus Supplement, as the case may be, and, in the case of
any reference herein to any Prospectus or Preliminary Prospectus
Supplement, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or
amendments relating to the Shares being issued and sold pursuant
hereto, filed with the Commission after the date of filing of
the Prospectus or Preliminary Prospectus Supplement under Rules
424(b) and prior to the termination of the offering of the
Shares by the Underwriters.
(b) A registration statement on Form S-3 (File No. 333-
_____) with respect to the Shares has been carefully prepared by
the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the Rules
and Regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission. Copies of such registration
statement, including any amendments thereto, the preliminary
prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have
heretofore been delivered by the Company to you. Such
registration statement, together with any registration statement
filed by the Company pursuant to Rule 462 (b) of the Act, herein
referred to as the "Registration Statement," which shall be
deemed to include all information omitted therefrom in reliance
upon Rule 430A and contained in the Prospectus referred to
below, has become effective under the Act and no post-effective
amendment to the Registration Statement has been filed as of the
date of this Agreement. "Prospectus" means (a) the form of
prospectus first filed with the Commission pursuant to
Rule 424(b) or (b) the last preliminary prospectus included in
the Registration Statement filed prior to the time it becomes
effective or filed pursuant to Rule 424(a) under the Act that is
delivered by the Company to the Underwriters for delivery to
purchasers of the Shares, together with any term sheet or
abbreviated term sheet filed with the Commission pursuant to
Rule 424(b)(7) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it
becomes effective is herein referred to as a "Preliminary
Prospectus."
(c) The Company has been duly organized and is validly
existing as a corporation in current status under the laws of
the State of Wisconsin, with corporate power and authority to
own or lease its properties and conduct its business as
described in the Registration Statement. The Subsidiaries of
the Company as listed in Exhibit 21 to Item 16(a) of the
Registration Statement (the "Subsidiaries") have been duly
organized and are validly existing as corporations in good
standing under the laws of the jurisdiction of their
incorporation, with corporate power and authority to own or
lease their properties and conduct their business as described
in the Registration Statement. The Subsidiaries are the only
Subsidiaries, direct or indirect, of the Company. The Company
and the Subsidiaries are duly qualified to transact business in
all jurisdictions in which the conduct of their business
requires such qualification. The outstanding shares of capital
stock of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable (except as provided
under Wisconsin statutes Section 180.0622(2)(b)) and are owned
by the Company free and clear of all liens, encumbrances and
equities and claims; (other than liens and encumbrances under
the Company's bank revolving credit agreement referred to in the
Registration Statement and the right of first refusal with
respect to the outstanding capital stock of Superior Lamp
Recycling, Inc.) and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock
or ownership interests in the Subsidiaries are outstanding.
(d) The outstanding shares of Common Stock of the Company
have been duly authorized and validly issued and are fully paid
and non-assessable (except as provided under Wisconsin statutes
Section 180.0622(2)(b)); the Shares to be issued and sold by the
Company have been duly authorized and when issued and paid for
as contemplated herein will be validly issued, fully paid and
non-assessable (except as provided under Wisconsin statutes
Section 180.0622(2)(b)); and no preemptive rights of
stockholders exist with respect to any of the Shares or the
issue and sale thereof. Neither the filing of the Registration
Statement nor the offering or sale of the Shares as contemplated
by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock.
(e) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct as of the
dates thereof. All of the Shares conform to the description
thereof contained in the Registration Statement. The form of
certificates for the Shares conforms to the corporate law of the
jurisdiction of the Company's incorporation.
(f) The Commission has not issued an order preventing or
suspending the use of any Prospectus relating to the proposed
offering of the Shares nor instituted proceedings for that
purpose. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will
contain, all statements which are required to be stated therein
by, and will conform to, the requirements of the Act and the
Rules and Regulations. The Registration Statement and any
amendment thereto do not contain as of their respective dates
and the Closing Date or the Option Closing Date, as the case may
be, and will not contain as of their respective dates and the
Closing Date or the Option Closing Date, as the case may be, any
untrue statement of a material fact and do not omit, and will
not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments and supplements
thereto do not contain as of their respective dates and the
Closing Date or the Option Closing Date, as the case may be, and
will not contain as of their respective dates and the Closing
Date or the Option Closing Date, as the case may be, any untrue
statement of material fact; and do not omit as of their
respective dates and the Closing Date, and will not omit as of
their respective dates and the Closing Date or the Option
Closing Date, as the case may be, to state any material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or
supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives, specifically for use in
the preparation thereof.
(g) The consolidated financial statements of the Company
and the Subsidiaries, together with related notes and schedules
as set forth in the Registration Statement, present fairly the
financial position and the results of operations and cash flows
of the Company and the consolidated Subsidiaries, at the
indicated dates and for the indicated periods. Such financial
statements and related schedules have been prepared in
accordance with generally accepted principles of accounting,
consistently applied throughout the periods involved, except as
disclosed herein, and all adjustments necessary for a fair
presentation of results for such periods have been made. The
summary financial and statistical data of the Company included
in the Registration Statement presents fairly the information
shown therein and such data has been compiled on a basis
consistent with the financial statements presented therein and
the books and records of the Company.
(h) ____________________, who have certified certain of
the financial statements filed with the Commission as part of
the Registration Statement, are independent public accountants
as required by the Act and the Rules and Regulations.
(i) There is no action, suit, claim or proceeding pending
or, to the knowledge of the Company, threatened against the
Company or the Subsidiaries before any court or administrative
agency or otherwise which if determined adversely to the Company
or its Subsidiaries might result in any material adverse change
in the earnings, business, management, properties, assets,
rights, operations, condition (financial or otherwise) or
prospects of the Company and of the Subsidiaries taken as a
whole or to prevent the consummation of the transactions
contemplated hereby, except as set forth in the Registration
Statement.
(j) The Company and the Subsidiaries have good and
marketable title to all of the properties and assets reflected
in the financial statements (or as described in the Registration
Statement) hereinabove described, subject to no lien, mortgage,
pledge, charge or encumbrance of any kind except those reflected
in such financial statements (or as described in the
Registration Statement) or which are not material in amount to
the business of the Company and the Subsidiaries taken as a
whole. The Company and the Subsidiaries occupy their leased
properties under valid and binding leases conforming in all
material respects to the description thereof set forth in the
Registration Statement.
(k) The Company and the Subsidiaries have filed all
Federal, State, local and foreign income tax returns which have
been required to be filed and have paid all taxes indicated by
said returns and all assessments received by them or any of them
to the extent that such taxes have become due and are not being
contested in good faith. All tax liabilities have been
adequately provided for in the financial statements of the
Company.
(l) To the Company's knowledge, since the respective dates
as of which information is given in the Registration Statement,
as it may be amended or supplemented, there has not been any
material adverse change or any development involving a
prospective material adverse change in or affecting the
earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise), or prospects of
the Company and its Subsidiaries taken as a whole, whether or
not occurring in the ordinary course of business, and there has
not been any material transaction entered into by the Company or
the Subsidiaries, other than transactions in the ordinary course
of business and changes and transactions described in the
Registration Statement, as it may be amended or supplemented.
The Company and the Subsidiaries have no material (to the
business of the Company and the Subsidiaries taken as a whole)
contingent obligations which are not disclosed in the
Registration Statement.
(m) Neither the Company nor any of the Subsidiaries is or
with the giving of notice or lapse of time or both, will be, in
violation of or in default under its Charter or By-Laws or
under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which it,
or any of its properties, is bound and which default is of
material significance in respect of the condition, financial or
otherwise of the Company and the Subsidiaries taken as a whole
or the business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of
the Company and the Subsidiaries taken as a whole. The
execution and delivery of this Agreement and the consummation of
the transactions herein contemplated and the fulfillment of the
terms hereof will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of the Subsidiaries is a
party, or of the Charter or By-Laws of the Company or any order,
rule or regulation applicable to the Company or any of the
Subsidiaries of any court or of any regulatory body or
administrative agency or other governmental body having
jurisdiction.
(n) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body necessary in
connection with the execution and delivery by the Company of
this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by
the Commission, the National Association of Securities Dealers,
Inc. (the "NASD"), The Nasdaq Stock Market or such additional
steps as may be necessary to qualify the Shares for public
offering by the Underwriters under state securities or Blue Sky
laws) has been obtained or made and is in full force and effect.
(o) The Company and the Subsidiaries hold all material
licenses, certificates and permits from federal and/or state
governmental authorities which are necessary to the conduct of
their businesses; and, to the Company's knowledge, neither the
Company nor any of the Subsidiaries has infringed any patents,
patent rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company and the
Subsidiaries taken as a whole. The Company knows of no material
infringement by others of patents, patent rights, trade names,
trademarks or copyrights owned by or licensed to the Company.
(p) Neither the Company, nor to the Company's best
knowledge, any of its affiliates, has taken or may take,
directly or indirectly, any action designed to cause or result
in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or
resale of the Shares.
(q) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of
the Commission thereunder.
(r) The Company maintains a system of internal accounting
controls sufficient in all material respects to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability
for assets; (iii) access to demand deposit accounts is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for
[inventory] is compared with existing [inventory] at reasonable
intervals and appropriate action is taken with respect to any
differences.
(s) The Company and its Subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the
value of their respective properties.
(t) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder
("ERISA"); no "reportable event" (as defined in ERISA) has
occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the
Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would
have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by
failure to act, which would cause the loss of such
qualification.
(u) The Company's application for designation of the
Shares on The Nasdaq Stock Market has been approved.
(v) To the best of the Company's knowledge, there are no
affiliations with the National Association of Securities
Dealers, Inc. among the Company's officers, directors or 5% or
greater security holders, except as set forth in the
Registration Statement or as otherwise disclosed in writing to
the Representatives.
(w) The conditions for the use of a registration statement
on Form S-3 set forth in the General Instructions on Form S-3
have been satisfied and the Company is entitled to use such form
for the transactions contemplated herein.
2. Purchase, Sale and Delivery of the Firm Shares. On the
basis of the representations, warranties and covenants herein contained,
and subject to the conditions herein set forth, the Company agrees to sell
to the Underwriters and each Underwriter agrees, severally and not
jointly, to purchase, at a price of $_____ per share, the number of Firm
Shares set forth opposite the name of each Underwriter in Schedule I
hereof, subject to adjustments in accordance with Section 9 hereof.
Payment for the Firm Shares to be sold hereunder is to be made
in immediately available funds by wire transfer to the order of the
Company against delivery of certificates therefor to the Representatives
for the several accounts of the Underwriters. Such payment and delivery
are to be made at the offices of _________________________,
_________________________, at 10:00 A.M., __________ time, on the third
business day after the date of this Agreement or at such other time and
date not later than three business days thereafter as you and the Company
shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the
New York Stock Exchange is open for trading and on which banks in New York
are open for business and are not permitted by law or executive order to
be closed.) The certificates for the Firm Shares will be delivered in
such denominations and in such registrations as the Representatives
request in writing not later than the second full business day prior to
the Closing Date, and will be made available for inspection by the
Representatives at least one business day prior to the Closing Date.
In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company hereby grants an option to the several Underwriters to
purchase the Option Shares at the price per share as set forth in the
first paragraph of this Section 2. The option granted hereby may be
exercised in whole or in part but only once and at any time upon written
notice given within 30 days after the date of this Agreement, by you, to
the Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the option, the names and
denominations in which the Option Shares are to be registered and the time
and date at which such certificates are to be delivered. The time and
date at which certificates for Option Shares are to be delivered shall be
determined by the Representatives but shall not be earlier than three nor
later than 10 full business days after the exercise of such option, nor in
any event prior to the Closing Date (such time and date being herein
referred to as the "Option Closing Date"). If the date of exercise of the
option is three or more days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date. The
number of Option Shares to be purchased by each Underwriter shall be in
the same proportion to the total number of Option Shares being purchased
as the number of Firm Shares being purchased by such Underwriter bears to
__________, adjusted by you in such manner as to avoid fractional shares.
The option with respect to the Option Shares granted hereunder may be
exercised only to cover over-allotments in the sale of the Firm Shares by
the Underwriters. You may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the Company.
To the extent, if any, that the option is exercised, payment for the
Option Shares shall be made on the Option Closing Date in immediately
available funds by wire transfer to the order of the Company against
delivery of certificates therefor at the offices of
_________________________, _________________________.
3. Offering by the Underwriters. It is understood that the
several Underwriters are to make a public offering of the Firm Shares as
soon as the Representatives deem it advisable to do so. The Firm Shares
are to be initially offered to the public at the initial public offering
price set forth in the Prospectus. The Representatives may from time to
time thereafter change the public offering price and other selling terms.
To the extent, if at all, that any Option Shares are purchased pursuant to
Section 2 hereof, the Underwriters will offer them to the public on the
foregoing terms.
4. Covenants of the Company. The Company covenants and agrees
with the several Underwriters that:
(a) The Company will (i) prepare and timely file with the
Commission under Rule 424(b) of the Rules and Regulations a
Prospectus containing information previously omitted at the time
of effectiveness of the Registration Statement in reliance on
Rule 430A of the Rules and Regulations, (ii) not file any
amendment to the Registration Statement or supplement to the
Prospectus or document incorporated by reference therein of
which the Representatives shall not previously have been advised
and furnished with a copy or to which the Representatives shall
have reasonably objected in writing or which is not in
compliance with the Rules and Regulations and (iii) file on a
timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the
Commission subsequent to the date of the Prospectus and prior to
the termination of the offering of the Shares by the
Underwriters.
(b) The Company will advise the Representatives promptly
of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or
for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the
institution of any proceedings for that purpose, and the Company
will use its best efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus
and to obtain as soon as possible the lifting thereof, if
issued.
(c) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities
laws of such jurisdictions as the Representatives may reasonably
have designated in writing and will make such applications, file
such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction where
it is not now so qualified or required to file such a consent.
The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a
period as the Representatives may reasonably request for
distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any
Preliminary Prospectus as the Representatives may reasonably
request. The Company will deliver to, or upon the order of, the
Representatives during the period when delivery of a Prospectus
is required under the Act, as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the
Representatives may reasonably request. The Company will
deliver to the Representatives at or before the Closing Date,
four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and
will deliver to the Representatives such number of copies of the
Registration Statement, including documents incorporated by
reference therein, but without exhibits, and of all amendments
thereto, as the Representatives may reasonably request.
(e) If during the period in which a prospectus is required
by law to be delivered by an Underwriter or dealer any event
shall occur as a result of which, in the judgment of the Company
or in the opinion of counsel for the Underwriters, it becomes
necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company
promptly will either (i) prepare and file with the Commission an
appropriate amendment to the Registration Statement or
supplement to the Prospectus or (ii) prepare and file with the
Commission an appropriate filing under the Exchange Act which
shall be incorporated by reference in the Prospectus so that the
Prospectus as so amended or supplemented will not, in the light
of the circumstances when it is so delivered, be misleading, or
so that the Prospectus will comply with law.
(f) The Company will make generally available to its
security holders, as soon as it is practicable to do so, but in
any event not later than 15 months after the effective date of
the Registration Statement (as defined in Rule 158(c)), an
earning statement (which need not be audited) in reasonable
detail, covering a period of at least 12 consecutive months
beginning after the effective date of the Registration
Statement, which earning statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations and will advise you in writing when such
statement has been so made available.
(g) The Company will, for a period of five years from the
Closing Date, deliver to the Representatives copies of annual
reports and copies of all other documents, reports and
information furnished by the Company to its stockholders or
filed with any securities exchange pursuant to the requirements
of such exchange or with the Commission pursuant to the Act or
the Exchange Act. The Company will deliver to the
Representatives similar reports with respect to significant
subsidiaries, as that term is defined in the Rules and
Regulations, which are not consolidated in the Company's
financial statements.
(h) No offering, sale or other disposition of any Common
Stock or Preferred Stock of the Company will be made for a
period of _____ days after the date of this Agreement, directly
or indirectly, by the Company otherwise than hereunder or with
the prior written consent of the Representatives except that the
Company may, without such consent, issue shares upon the
exercise of options outstanding on the date of this Agreement
issue shares pursuant to the Company's incentive stock option
plan, issued as consideration for future acquisitions or issue
shares pursuant to the Company's dividend reinvestment and stock
purchase plan.
5. Costs and Expenses. The Company will pay all costs,
expenses and fees incident to the performance of the obligations of the
Company under this Agreement, including, without limiting the generality
of the foregoing, the following: accounting fees of the Company; the fees
and disbursements of counsel for the Company; the cost of printing and
delivering to, or as requested by, the Underwriters copies of the
Registration Statement, Preliminary Prospectuses, the Prospectus, the
Invitation Letter and any supplements or amendments thereto; the filing
fees of the Commission; the filing fees and expenses incident to securing
any required review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Shares; and the fees and
expenses incurred with respect to the listing of the Shares on the Nasdaq
Stock Market. The Company shall not, however, be required to pay for any
of the Underwriters' expenses except that, if this Agreement shall not be
consummated because the conditions in Section 7 hereof are not satisfied,
or because this Agreement is terminated by the Representatives pursuant to
Section 6 hereof, or by reason of any failure, refusal or inability on the
part of the Company to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on its part to be
performed, unless such failure to satisfy said condition or to comply with
said terms be due to the default or omission of any Underwriter, then the
Company shall reimburse the several Underwriters for reasonable out-of-
pocket expenses, including fees and disbursements of counsel, reasonably
incurred in connection with investigating, marketing and proposing to
market the Shares or in contemplation of performing their obligations
hereunder; but the Company shall not in any event be liable to any of the
several Underwriters for damages on account of loss of anticipated profits
from the sale by them of the Shares.
6. Conditions of Obligations of the Underwriters. The several
obligations of the Underwriters to purchase the Firm Shares on the Closing
Date and the Option Shares, if any, on the Option Closing Date are subject
to the accuracy, as of the Closing Date or the Option Closing Date, as the
case may be, of the representations and warranties of the Company
contained herein, and to the performance by the Company of its covenants
and obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
taken or, to the knowledge of the Company, shall be contemplated
by the Commission.
(b) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion
of Xxxxx & Xxxxxxx, counsel for the Company, dated the Closing
Date or the Option Closing Date, as the case may be, addressed
to the Underwriters (and stating that it may be relied upon by
counsel to the Underwriters, but no others) to the effect that:
(i) The Company has authorized capital stock as
set forth under the caption "Capitalization" in the
Prospectus; all of the Shares conform in all material
respects to the legal description thereof contained in
the Prospectus; the certificates for the Shares,
assuming they are in the form filed with the
Commission, are in due and proper form under the laws
of the State of Wisconsin; the shares of Common Stock,
including the Option Shares, if any, to be sold by the
Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and
non-assessable (except as provided in Wisconsin
statutes Section 180.0622(2)(b)) when issued and paid
for as contemplated by this Agreement; and no
preemptive rights of stockholders exist under the
Company's Articles of Incorporation or otherwise to
the knowledge of such counsel with respect to any of
the Shares or the issue or sale thereof.
(ii) Except as described in or contemplated by
the Prospectus, to the knowledge of such counsel,
there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of
capital stock of the Company and there are no
outstanding or authorized options, warrants or rights
of any character obligating the Company to issue any
shares of its capital stock or any securities
convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of such
stock; and except as described in the Prospectus, to
the knowledge of such counsel, no holder of any
securities of the Company or any other person has the
right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company
to sell or otherwise issue to them, or to permit them
to underwrite the sale of, any of the Shares or the
right to have any Common Shares or other securities of
the Company included in the Registration Statement or
the right, as a result of the filing of the
Registration Statement, to require registration under
the Act of any shares of Common Stock or other
securities of the Company.
(iii) The Registration Statement has become
effective under the Act and, to the knowledge of such
counsel, no stop order proceedings with respect
thereto have been instituted or are pending or
threatened under the Act.
(iv) The Registration Statement, the Prospectus
and each amendment or supplement thereto comply as to
form in all material respects with the requirements of
the Act and the applicable rules and regulations
thereunder (except that such counsel need express no
opinion as to the financial statements, statistical
data and related schedules therein).
(v) To the knowledge of such counsel based
solely upon its inquiry of the Company, the statements
under the captions "__________," "Description of
Capital Stock" and "Shares Eligible for Future Sale"
in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein
or matters of law, fairly summarize in all material
respects the information called for with respect to
such documents and matters.
(vi) To the knowledge of such counsel based
solely on its inquiry of the Company, the statements
under the captions "Risk Factors-Government
Regulation," "--Potential Environmental Liability,"
and "Business-Regulation," in the Prospectus, insofar
as such statements constitute a summary of documents
referred to therein or matters of law, fairly
summarize in all material respects the information
called for with respect to such documents and matters.
(vii) Such counsel does not know of any
contracts or documents required to be filed as
exhibits to in the Registration Statement or described
in the Registration Statement or the Prospectus which
are not so filed or described as required, and such
contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly
summarized in all material respects.
(viii) This Agreement has been duly
authorized, executed and delivered by the Company.
(ix) No approval, consent, order, authorization,
designation, declaration or filing by or with any
regulatory, administrative or other governmental body
is necessary in connection with the execution and
delivery of this Agreement and the consummation of the
transactions herein contemplated (other than as may be
required by the NASD, The Nasdaq Stock Market or as
required by State securities and Blue Sky laws as to
which such counsel need express no opinion) except
such as have been obtained or made, specifying the
same.
(x) The Company is not, and will not become, as
a result of the consummation of the transactions
contemplated by this Agreement, and application of the
net proceeds therefrom as described in the Prospectus,
required to register as an investment company under
the 1940 Act.
(xi) To such counsel's knowledge, this Agreement
has been duly authorized, executed and delivered on
behalf of the Selling Shareholders.
In rendering such opinion Xxxxx & Lardner may rely (x) upon the
opinion of Xxxxx X. Xxxxxx referred to in Paragraph (c) of this
Section 6 in connection with the delivery of the opinions
referenced in subparagraphs (i), (ii), and (vi) of paragraph (b)
of this Section 6 and (y), as to matters governed by the laws of
states other than Wisconsin or Federal laws, on local counsel in
such jurisdictions, provided that in each case Xxxxx & Lardner
shall state that they believe that they and the Underwriters are
justified in relying on Xxxxx X. Xxxxxx and such other counsel
provided that such justification is based on the reputation,
knowledge and background of such other counsel without further
inquiry or investigation. In addition to the matters set forth
above, such opinion shall also include a statement to the effect
that nothing has come to the attention of such counsel which
leads them to believe that (i) the Registration Statement, at
the time it became effective under the Act (but after giving
effect to any modifications incorporated therein pursuant to
Rule 430A under the Act) and as of the Closing Date or the
Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (ii) the Prospectus, or
any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of the Closing Date or the Option
Closing Date, as the case may be, contained an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements, in the light of the
circumstances under which they are made, not misleading (except
that such counsel need express no view as to financial
statements, schedules and statistical information therein).
With respect to such statement, Xxxxx & Lardner may state that
their belief is based upon the procedures set forth therein, but
is without independent check and verification.
(c) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion
of Xxxxx X. Xxxxxx, Vice President and General Counsel of the
Company, dated the Closing Date or the Option Closing Date, as
the case may be, addressed to the Underwriters (and stating that
it may be relied upon by counsel to the Underwriters) to the
effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in current status
under the laws of the State of Wisconsin, with
corporate power and authority to own or lease its
properties and conduct its business as described in
the Registration Statement; the Subsidiaries have been
duly organized and are validly existing as
corporations in good standing under the laws of the
jurisdiction of their incorporation, with corporate
power and authority to own or lease their properties
and conduct their business as described in the
Registration Statement; the Company and the
Subsidiaries are duly qualified to transact business
in all jurisdictions in which the conduct of their
business requires such qualification, or in which the
failure to qualify would have a materially adverse
effect upon the business of the Company and the
Subsidiaries taken as a whole; and the outstanding
shares of capital stock of the Subsidiaries have been
duly authorized and validly issued and are fully paid
and non-assessable (except as provided under Wisconsin
statutes Section 180.0622(2)(b)) and are owned by the
Company or the Subsidiaries; and, to the best of such
counsel's knowledge, the outstanding shares of capital
stock of the Subsidiaries are owned free and clear of
all liens, encumbrances and equities and claims (other
than liens and encumbrances under the Company's bank
revolving credit agreement referred to in the
Registration Statement and the right of first refusal
with respect to the outstanding capital stock of
Superior Lamp Recycling, Inc.), and no options,
warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert
any obligations into any shares of capital stock or of
ownership interests in the Subsidiaries are
outstanding.
(ii) The Company has authorized and, to his
knowledge, outstanding capital stock as set forth
under the caption "Capitalization" in the Prospectus;
the authorized shares of the Company's Common Stock
have been duly authorized; the outstanding shares of
the Company's Common Stock, including the Shares to be
sold by the Selling Shareholders have been duly
authorized and validly issued and are fully paid and
non-assessable (except as provided under Wisconsin
statutes Section 180.0622(2)(b)); all of the Shares
conform in all material respects to the legal
description thereof contained in the Prospectus; the
certificates for the Shares, assuming they are in the
form filed with the Commission, are in due and proper
form under Wisconsin law; the shares of Common Stock,
including the Option Shares, if any, to be sold by the
Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and
non-assessable (except as provided under Wisconsin
statutes Section 180.0622(2)(b)) when issued and paid
for as contemplated by this Agreement; and no
preemptive rights of stockholders exist with respect
to any of the Shares or the issue or sale thereof.
(iii) Except as described in or contemplated
by the Prospectus, to the knowledge of such counsel,
there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of
capital stock of the Company and there are no
outstanding or authorized options, warrants or rights
of any character obligating the Company to issue any
shares of its capital stock or any securities
convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of such
stock; and except as described in the Prospectus, to
the knowledge of such counsel, no holder of any
securities of the Company or any other person has the
right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company
to sell or otherwise issue to them, or to permit them
to underwrite the sale of, any of the Shares or the
right to have any Common Shares or other securities of
the Company included in the Registration Statement or
the right, as a result of the filing of the
Registration Statement, to require registration under
the Act of any shares of Common Stock or other
securities of the Company.
(iv) Such counsel knows of no legal or
governmental proceedings pending or threatened against
the Company or any of the Subsidiaries which, if
determined adversely to the Company or a Subsidiary,
would have a material adverse effect on the Company
and its subsidiaries taken as a whole, except as set
forth in the Prospectus.
(v) The execution and delivery of this Agreement
and the consummation of the transactions herein
contemplated do not and will not conflict with or
result in a breach of any of the terms or provisions
of, or constitute a default under, the Charter or By-
Laws of the Company, or any agreement or instrument
known to such counsel to which the Company or any of
the Subsidiaries is a party or by which the Company or
any of the Subsidiaries may be bound.
(vi) The statements under the captions "Risk
Factors-Restrictions on Landfill Expansion," "--
Government Regulation," "--Potential Environmental
Liability," "--Insurance and Performance Bonds,"
"Business-Regulation" "_______________," "Description
of Capital Stock" and "Shares Eligible for Future
Sale" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein
or matters of law, fairly summarize in all material
respects the information called for with respect to
such documents and matters.
(d) The Representatives shall have received from
_______________, counsel for the Underwriters, an opinion dated
the Closing Date or the Option Closing Date, as the case may be,
substantially to the effect specified in subparagraphs (____),
(____), (____) and (____) of Paragraph (b) of this Section 6,
and that the Company is a validly organized and existing
corporation under the laws of the State of ___________. In
rendering such opinion _______________ may rely as to all
matters governed other than by the laws of the State of
_______________ or Federal laws on the opinion of counsel
referred to in paragraph (b) of this Section 6. In addition to
the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention
of such counsel which leads them to believe that the
Registration Statement, as of the time it became effective under
the Act, and the Prospectus or any amendment or supplement
thereto, on the date it was filed pursuant to Rule 424(b) or any
of the documents incorporated by reference therein, as of the
date of effectiveness of the Registration Statement or, in the
case of documents incorporated by reference in the Prospectus
after the date of effectiveness of the Registration Statement,
as of the respective dates when such documents were filed with
the Commission and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, as of the
Closing Date or the Option Closing Date, as the case may be,
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading (except that such
counsel need express no view as to financial statements,
schedules and other financial information included or
incorporated by reference therein). With respect to such
statement, _______________ may state that their belief is based
upon the procedures set forth therein, but is without
independent check and verification.
(e) The Representatives shall have received at or prior to
the Closing Date from Xxxxx & Lardner a memorandum or summary,
in form and substance satisfactory to the Representatives, with
respect to the qualification for offering and sale by the
Underwriters of the Shares under the State securities or Blue
Sky laws of such jurisdictions as the Representatives may
reasonably have designated to the Company.
(f) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a signed
letter from _______________, dated the Closing Date or the
Option Closing Date, as the case may be, which shall confirm, on
the basis of a review in accordance with the procedures set
forth in the letter signed by such firm and dated and delivered
to the Representatives on the date hereof that nothing has come
to their attention during the period from the date three days
prior to the date hereof, to a date not more than three days
prior to the Closing Date or the Option Closing Date, as the
case may be, which would require any change in their letter
dated the date hereof if it were required to be dated and
delivered on the Closing Date or the Option Closing Date, as the
case may be. All such letters shall be in form and substance
satisfactory to the Representatives.
(g) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a signed
opinion letter from _______________, confirming the matters set
forth in clauses (i), (ii) and (iii) of subparagraph (c) of this
Section 6.
(h) The Representatives shall have received on the Closing
Date or the Option Closing Date, as the case may be, a
certificate or certificates of the Chief Executive Officer and
the Chief Financial Officer of the Company to the effect that,
as of the Closing Date or the Option Closing Date, as the case
may be, each of them severally represents as follows:
(i) The Registration Statement has become
effective under the Act and no stop order suspending
the effectiveness of the Registration Statement has
been issued, and no proceedings for such purpose have
been taken or are, to his knowledge, contemplated by
the Commission.
(ii) He does not know of any litigation
instituted or threatened against the Company of a
character required to be disclosed in the Registration
Statement which is not so disclosed; he does not know
of any material contract required to be filed as an
exhibit to the Registration Statement which is not so
filed; and the representations and warranties of the
Company contained in Section 1 hereof are true and
correct as of the Closing Date or the Option Closing
Date, as the case may be.
(iii) He has carefully examined the
Registration Statement and the Prospectus and, in his
opinion, as of the effective date of the Registration
Statement, the statements contained in the
Registration Statement, including any document
incorporated by reference therein, were true and
correct, and such Registration Statement and
Prospectus or any document incorporated by reference
therein did not omit to state a material fact required
to be stated therein or necessary in order to make the
statements therein not misleading and, in his opinion,
since the effective date of the Registration
Statement, no event has occurred which should have
been set forth in a supplement to or an amendment of
the Prospectus which has not been so set forth in such
supplement or amendment.
(i) The Company shall have furnished to the
Representatives such further certificates and documents
confirming the representations and warranties contained herein
and related matters as the Representatives may reasonably have
requested, including appropriate letters or agreements
confirming the lock-up arrangements described in the Prospectus
Supplement.
(j) The Firm Shares and Option Shares, if any, shall have
been approved for listing upon official notice of issuance on
the Nasdaq Stock Market.
The opinions and certificates mentioned in this Agreement shall
be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to the Representatives and to
_______________, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this
Agreement to be fulfilled, the obligations of the Underwriters hereunder
may be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram at or prior to the Closing Date or
the Option Closing Date, as the case may be.
In such event, the Company and the Underwriters shall not be
under any obligation to each other (except to the extent provided in
Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company. The
obligations of the Company to sell and deliver the portion of the Shares
required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing
Date, as the case may be, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and in effect or
proceedings therefor initiated or threatened.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of the 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 or proceedings in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained or incorporated by reference in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter
and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company
by or through the Representatives specifically for use in the preparation
thereof. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Company or any such director, officer, or
controlling person may become subject under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained or incorporated by
reference in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under
which they were made, and will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding; provided, however,
that each Underwriter will be liable in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made in the Registration Statement,
any Preliminary Prospectus, the Prospectus or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by or through the Representatives specifically
for use in the preparation thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to this Section 8, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 8(a) or (b) shall be available to
any party who shall fail to give notice as provided in this Section 8(c)
if the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice, but the failure to give such notice shall not relieve
the indemnifying party or parties from any liability which it or they may
have to the indemnified party for contribution or otherwise than on
account of the provisions of Section 8(a) or (b). In case any such
proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party and shall pay as incurred the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred the fees and expenses of the
counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the reasonable fees and expenses of more
than one separate firm for all such indemnified parties. Such firm shall
be designated in writing by you in the case of parties indemnified
pursuant to Section 8(a) and by the Company in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 8(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under
Section 8(c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this Section 8(d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 8(d)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), (i) no Underwriter shall be required to contribute any
amount in excess of the underwriting discounts and commissions applicable
to the Shares purchased by such Underwriter and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in
this Section 8(d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this
Section 8 hereby consents to the jurisdiction of any court having
jurisdiction over any other contributing party, agrees that process
issuing from such court may be served upon him or it by any other
contributing party and consents to the service of such process and agrees
that any other contributing party may join him or it as an additional
defendant in any such proceeding in which such other contributing party is
a party.
9. Default by Underwriters. If on the Closing Date or the
Option Closing Date, as the case may be, any Underwriter shall fail to
purchase and pay for the portion of the Shares which such Underwriter has
agreed to purchase and pay for on such date (otherwise than by reason of
any default on the part of the Company, you shall use your best efforts to
procure within 24 hours thereafter one or more of the other Underwriters,
or any others, to purchase from the Company such amounts as may be agreed
upon and upon the terms set forth herein, the Firm Shares or Option
Shares, as the case may be, which the defaulting Underwriter or
Underwriters failed to purchase. If during such 24 hours you shall not
have procured such other Underwriters, or any others, to purchase the Firm
Shares or Option Shares, as the case may be, agreed to be purchased by the
defaulting Underwriter or Underwriters, then (a) if the aggregate number
of shares with respect to which such default shall occur does not exceed
10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the other Underwriters shall be obligated, severally, in
proportion to the respective numbers of Firm Shares or Option Shares, as
the case may be, which they are obligated to purchase hereunder, to
purchase the Firm Shares or Option Shares, as the case may be, which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of shares of Firm Shares or Option Shares, as the case
may be, with respect to which such default shall occur exceeds 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the
Company or any of the Representatives will have the right, by written
notice given within the next 24-hour period to the parties to this
Agreement, to terminate this Agreement without liability on the part of
the non-defaulting Underwriters or of the Company except to the extent
provided in Section 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 9, the Closing
Date or Option Closing Date, as the case may be, may be postponed for such
period, not exceeding seven days, as you may determine in order that the
required changes in the Registration Statement or in the Prospectus or in
any other documents or arrangements may be effected. The term
"Underwriter" includes any person substituted for a defaulting
Underwriter. Any action taken under this Section 9 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Notices. All communications hereunder shall be in writing
and, except as otherwise provided herein, will be mailed, delivered or
telegraphed and confirmed as follows: if to the Underwriters, to
_________________________, _________________________, Attention:
_________________________, Managing Director; if to the Company, to
Superior Services, Inc., 00000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxxx, Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxx, General Counsel (with a
copy to Xxxxx & Lardner, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000 Attention: Xxxxxx X. Xxxxx).
11. Termination. This Agreement may be terminated by you by
notice to the Company as follows:
(a) at any time prior to the earlier of (i) the time the
Shares are released by you for sale by notice to the
Underwriters, or (ii) 11:30 A.M. on the first business day after
the date of this Agreement;
(b) at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, any material adverse change or any development
involving a prospective material adverse change in or affecting
the condition, financial or otherwise, of the Company and its
Subsidiaries taken as a whole or the earnings, business,
management, properties, assets, rights, operations, condition
(financial or otherwise) or prospects of the Company and its
Subsidiaries taken as a whole, whether or not arising in the
ordinary course of business, (ii) any outbreak or escalation of
hostilities or declaration of war or national emergency or other
national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change
on the financial markets of the United States would, in your
reasonable judgment, make it impracticable to market the Shares
or to enforce contracts for the sale of the Shares, or (iii)
suspension of trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or limitation on
prices (other than limitations on hours or numbers of days of
trading) for securities on either such Exchange, (iv) the
enactment, publication, decree or other promulgation of any
statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and
adversely affects or may materially and adversely affect the
business or operations of the Company, (v) declaration of a
banking moratorium by United States or New York State
authorities, (vi) any downgrading in the rating of the Company's
debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Exchange Act); (vii) the suspension of trading of the Company's
common stock by the Commission on the Nasdaq Stock Market or
(viii) the taking of any action by any governmental body or
agency in respect of its monetary or fiscal affairs which in
your reasonable opinion has a material adverse effect on the
securities markets in the United States; or
(c) as provided in Sections 6 and 9 of this Agreement.
This Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option
Shares, upon the occurrence at any time prior to the Option Closing Date
of any of the events described in subparagraph (b) above or as provided in
Sections 6 and 9 of this Agreement.
12. Successors. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company and their respective
successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no
other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares merely because
of such purchase.
13. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the
representations, warranties and covenants in this Agreement shall remain
in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation made by or on behalf of any Underwriter
or controlling person thereof, or by or on behalf of the Company or its
directors or officers and (c) delivery of and payment for the Shares under
this Agreement.
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.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of _______________.
If the foregoing letter is in accordance with your understanding
of our agreement, please sign and return to us the enclosed duplicates
hereof, whereupon it will become a binding agreement among the Company and
the several Underwriters in accordance with its terms.
Very truly yours,
SUPERIOR SERVICES, INC.
By _________________________________
G. Xxxxxxx Xxxxxxxx
President and Chief Executive
Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
____________________________________
____________________________________
____________________________________
____________________________________
By ______________________________
By ______________________________
Authorized Officer
SCHEDULE I
Schedule of Underwriters
Number of Firm
Underwriter Shares to be Purchased
____________________________________
____________________________________
____________________________________
____________________________________
Total _______________
EXHIBIT A
Subsidiaries
