GENMAR HOLDINGS, INC. DRAFT
9-24-99
6,500,000 Shares
Common Stock
UNDERWRITING AGREEMENT
----------------------
__________, 1999
Xxxxxxxx Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
As Representatives of the several
Underwriters named in Schedule I hereto.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Genmar Holdings, Inc., a Delaware corporation (the "Company"),
confirms its agreement with the several underwriters (the "Underwriters") for
whom you are acting as representatives (the "Representatives") to issue and
sell 6,500,000 newly issued shares (the "Underwritten Shares") of the
Company's common stock, par value $0.01 per share (the "Common Stock"), to
the Underwriters. The Company's Common Stock is more fully described in the
Registration Statement and the Prospectus hereinafter mentioned.
For the sole purpose of covering over-allotments in connection with
the sale of the Underwritten Shares, the Company proposes to grant to the
Underwriters the option (the "Option") described in Section 2 hereof to
purchase all or any part of an aggregate of 975,000 additional shares of
Common Stock (the "Option Shares"). The Underwritten Shares and the Option
Shares purchased pursuant to this Underwriting Agreement (this "Agreement")
are herein collectively called the "Shares" and the proposed offering of the
Underwritten Shares and, if applicable, the Option Shares by the Underwriters
is hereinafter referred to as the "Public Offering."
The Company has filed with the Securities and Exchange Commission
(the "Commission"), pursuant to the Securities Act of 1933, as amended (the
"Act"), and published rules and regulations adopted by the Commission under
the Act (the "Rules"), a registration statement on Form S-1 (the "Form S-1")
(File No. 333-85447), including a preliminary prospectus, relating to the
Shares, and such amendments to such registration statement as may have been
filed with the Commission to the date of this Agreement. The term
"preliminary prospectus" means any preliminary prospectus (as referred to in
Rule 430 or Rule 430A of the Rules) included at any time as a part of the
registration statement. The Company has furnished to the Representatives
copies of such registration statement, each amendment to it filed by the
Company with the Commission and each preliminary prospectus filed by the
Company with the Commission and any other offering materials used by the
Company. If such registration statement has not become effective, a further
amendment (the "Final Amendment") to such registration statement, including a
form of final prospectus, if necessary to permit such registration statement
to become effective, will promptly be filed by the Company with the
Commission. If such registration statement has become effective, a final
prospectus (the "Rule 430A Prospectus") containing information permitted to
be omitted at the time of effectiveness by Rule 430A of the Rules will
promptly be filed by the Company with the Commission in accordance with the
Rules. The registration statement as amended at the time it becomes or became
effective (the "Effective Date"), including financial statements and all
exhibits and any information deemed to be included by Rule 430A, is called
the "Registration Statement." The term "Prospectus" means the prospectus as
first filed with the Commission pursuant to Rule 424(b) of the Rules, or if
no such filing is required, the form of final prospectus included in the
Registration Statement at the Effective Date.
Any reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein on or before the Effective Date
or the date of such preliminary prospectus or the Prospectus, as the case may
be. Any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934 (the "Exchange Act") after the
Effective Date or the date of any preliminary prospectus or the Prospectus,
as the case may be, and deemed to be incorporated therein by reference.
As the Representatives, you have advised the Company (a) that you
are authorized to enter into this Agreement on behalf of the several
Underwriters and (b) the Underwriters are willing, acting severally and not
jointly, to purchase the amounts of the Underwritten Shares set forth
opposite their respective names in Schedule I hereto, plus their pro rata
portion of the Option Shares as set forth in Section 2 hereof, if you elect
to exercise the Option in whole or in part for the accounts of the several
Underwriters.
In consideration of the mutual agreements contained herein and of
the interests of the parties in the transactions contemplated hereby, the
Company and the Underwriters hereby agree as follows:
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
(a) The Company represents and warrants to, and agrees with, each
Underwriter as follows:
(i) The Company has been duly organized, is in compliance
with its Certificate of Incorporation, as amended and/or restated to date,
and is validly existing as a corporation in good standing under the laws of
the State of Delaware, with full power and authority (corporate and other) to
own its properties and conduct its business as described in the Registration
Statement and Prospectus. Each subsidiary of the Company listed on Schedule
II hereto (each, a "Subsidiary" and collectively, the "Subsidiaries") has
been duly organized or incorporated and is validly existing as a corporation
or other legally authorized entity, in good standing under the laws of the
jurisdiction of its organization, with full power and authority (corporate
and other) to own and lease its properties and conduct its business; the
Company and the Subsidiaries are duly qualified to transact business in all
jurisdictions in which the conduct of their business or the ownership or
lease of their properties requires such qualifications, except where failure
to be so qualified or in good standing as a foreign corporation would not in
the aggregate have a material adverse effect on the financial condition, or
in the business, properties, business prospects or results of operations of
the Company and its Subsidiaries taken as a whole (a "Material Adverse
Effect"); all of the outstanding shares of capital stock or other ownership
interests of each Subsidiary are owned by the Company and have been duly
authorized and validly issued, are fully paid and non-assessable and, except
as set forth in the Prospectus, and except for those securing indebtedness as
described in the Financial Statements to the Registration Statement, are
owned by the Company free and clear of any claim, lien, encumbrance or
security interest.
(ii) The outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable; the
Shares have been duly authorized and, when issued and paid for as
contemplated herein, will be validly issued, fully paid and non-assessable.
There are no preemptive or other restrictive rights to subscribe for or to
purchase, or any restriction upon the voting or transfer of any class of the
Company's stock pursuant to the Company's Amended and Restated Certificate of
Incorporation, Bylaws, or other governing documents or any agreement or other
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them may be bound. Neither the filing of the Registration
Statement nor the offering 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 any class of
the Company's capital stock.
(iii) The Shares conform to the description thereof contained
in any preliminary prospectus, the Prospectus and the Registration Statement.
As of the Closing Date (as defined below) and any Option Closing Date (as
defined below), if applicable, the Company will have the authorized
capitalization set forth under the captions "Capitalization" and "Description
of Capital Stock" in the Prospectus. No further corporate approval or
authority on behalf of the Company will be required for the issuance and sale
of the Shares to be sold by the Company as contemplated herein.
(iv) The Registration Statement has been filed with the
Commission under the Act.
(v) Neither the Commission nor any other agency, body,
authority, court or arbitrator of competent jurisdiction has, by order or
otherwise, prohibited or suspended the use of any preliminary prospectus or
the Prospectus relating to the proposed offering of the Shares or instituted
proceedings for that purpose. The Registration Statement, the Prospectus and
any preliminary prospectus, and any amendments or supplements thereto, at the
time they became or become effective (as to the Registration Statement and
any amendment thereto), or at the time they were or are filed with the
Commission (as to the Prospectus and any supplement thereto), conformed or
conform in all material respects to the requirements of the Act and the
Rules. None of the Registration Statement, the Prospectus and any preliminary
prospectus, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing date (as
to the Prospectus and any supplement thereto) and as of its date (as to any
preliminary prospectus) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein (in 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 any preliminary prospectus 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, expressly for use in the preparation
thereof.
(vi) 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 in all material respects the
consolidated financial position, results of operations and changes in cash
flow of the Company and the Subsidiaries, at the indicated dates and for the
indicated periods. Such financial statements have been prepared in accordance
with United States generally accepted accounting principles, consistently
applied throughout the periods involved, and all adjustments, consisting only
of normal recurring adjustments or accruals, necessary for a fair
presentation of results for such periods have been made. The Summary
Consolidated Financial Data and the Selected Consolidated Financial Data
included in the Prospectus have been compiled on a basis consistent with that
of the audited and unaudited financial statements from which they were
derived. The Company and its subsidiaries will maintain and keep accurate
books and records and maintain internal accounting controls which provide
reasonable assurance that (1) transactions are executed in accordance with
management's authorization, (2) transactions are recorded as necessary to
permit the preparation of the Company's consolidated financial statements and
to maintain accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and its subsidiaries is
permitted only in accordance with management's authorization, and (4) the
recorded accounts of the assets of the Company and its subsidiaries are
compared with existing assets at reasonable intervals.
(vii) There is no action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary
before any court or administrative or governmental agency or other body which
might (A) result in any material adverse change in the financial condition,
or in the business, properties, business prospects or results of operations
of the Company or any of its Subsidiaries (a "Material Adverse Change"),
whether or not arising in the ordinary course of business, or (B) affect the
performance of this Agreement or the consummation of the transactions herein
contemplated, except in either case as disclosed in the Registration
Statement and the Prospectus and , except as otherwise set forth in the
Registration Statement and the Prospectus, for which the Company maintains a
reserve in an amount which it believes is adequate to cover potential
liabilities.
(viii) Except as set forth in the Registration Statement and
the Prospectus, neither the Company nor any Subsidiary is in violation of any
law, ordinance, governmental rule or regulation or court decree to which it
is subject which violation is expected to result in a Material Adverse Change.
(ix) The Company and each Subsidiary has good and marketable
title to all of the material properties and assets reflected in the financial
statements hereinabove described or as described in the Prospectus as being
owned by them, subject to no lien, mortgage, pledge, charge or other
encumbrance of any kind except those securing indebtedness described in such
financial statements or as described in the Prospectus or which do not
materially affect the present or proposed use of such properties or assets.
The Company and the Subsidiaries occupy their leased properties under valid,
subsisting and binding leases with only such exceptions as are not material
and
do not interfere with the conduct of the business of the Company. There
exists no default under the provisions of any lease, contract or other
obligation to which the Company or any Subsidiary is a party which may result
in a Material Adverse Change.
(x) The Company and each Subsidiary have filed all federal,
State and foreign tax returns which have been required to be filed up to the
date hereof, except insofar as the failure to file such returns, individually
or in the aggregate, would not have a Material Adverse Effect, 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, except for any
state taxes that are being contested in good faith.
(xi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, as they may be
amended or supplemented, (A) there has not been any Material Adverse Change
nor to the Company's knowledge is any such change threatened, (B) there has
not been any transaction entered into by the Company or any of the
Subsidiaries that is material to the business, properties, business prospects
or results of operations of the Company or any such Subsidiary, other than
transactions in the ordinary course of business and changes and transactions
contemplated by the Registration Statement and the Prospectus, as they may be
amended or supplemented, and (C) there has not been any material change in
the capital stock, long term debt or liabilities of the Company.
(xii) The filing of the Registration Statement and related
Prospectus and the execution and delivery of this Agreement have been duly
authorized by the Board of Directors of the Company; this Agreement
constitutes a valid and legally binding obligation of the Company enforceable
in accordance with its terms except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and by general principles of equity, and except
insofar as rights to indemnification and contribution contained herein may be
limited by federal or state securities laws or related public policy. Neither
the Company nor any of the Subsidiaries individually or in the aggregate are
in breach or violation of or default under any indenture, mortgage, deed of
trust, lease, contract, note or other agreement or instrument to which it is
a party or by which it or any of its properties is bound and which breach,
violation or default would, individually or in the aggregate have a Material
Adverse Effect. The consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not result in a breach or violation
of any of the material terms and provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, lease, contract, note or other
agreement or instrument to which the Company or any Subsidiary is a party, or
of the Company's Amended and Restated Certificate of Incorporation or By-laws
or any law, decree, order, rule, writ, injunction or regulation applicable to
the Company or any Subsidiary of a court or of any regulatory body or
administrative agency or other governmental body having jurisdiction, except
for those violations that, individually or in the aggregate, would not result
in a Material Adverse Change.
(xiii) 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 performance of its obligations
hereunder (except such additional steps, if any, as may be necessary to
qualify the Shares for public offering by the Underwriters under state
securities or Blue Sky laws) have been obtained or made and is in full force
and effect.
(xiv) The Company and each Subsidiary hold all material
licenses, authorizations, charters, certificates and/or permits from
governmental authorities which are necessary to the conduct of their
businesses and neither the Company nor any Subsidiary has received notice of
any proceeding relating to the revocation or modification of any of such
licenses, authorizations, charters, certificates or permits, which,
individually or in the aggregate, if the subject of an unfavorable decision,
would result in a Material Adverse Change.
(xv) Xxxxxx Xxxxxxxx LLP, independent public accountants,
who have reported on the audited consolidated financial statements of the
Company and its Subsidiaries, filed with the Commission and included as part
of the Registration Statement and Prospectus, are independent public
accountants within the meaning of the
Act, the Rules and Regulation S-X of the Commission and Rule 101 of the Code
of Professional Ethics of the American Institute of Certified Public
Accountants.
(xvi) There are no agreements, contracts or other documents
of a character required to be described in the Registration Statement or the
Prospectus or required by Form S-1 to be filed as exhibits to the
Registration Statement or incorporated by reference in the Registration
Statement which are not described, filed or incorporated as required.
(xvii) No labor dispute exists or, to the Company's knowledge,
is imminent with the Company's employees or with employees of any Subsidiary
which could reasonably be expected to have a Material Adverse Effect.
(xviii) Except as contemplated by Section 2 hereof and as
disclosed in the Prospectus and permitted by the Rules, the Company 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 a violation of
Section 5 of the Act, Rule 10b-6 or Rule 102 of Regulation M under the
Exchange Act, or otherwise in stabilization or manipulation of the price of
the Company's Common Stock.
(xix) The Company has delivered to you a true and complete
copy of the Agreement and Plan of Reorganization by and among Genmar
Holdings, Inc., POS Acquisition Corporation, Pyramid Operating Systems, Inc.
("Pyramid") and the stockholders of Pyramid, dated June 18, 1999, and the
related attachments and exhibits (the "Pyramid Agreements"), which provide
for the acquisition by way of merger (the "Pyramid Merger") by the Company,
through a wholly-owned subsidiary (the "Merger Subsidiary"), of all of the
outstanding capital stock of Pyramid. Neither the Company nor the Merger
Subsidiary is in default under the terms of such Pyramid Agreements and, to
the Company's knowledge, neither Pyramid nor its stockholders are in default
under the terms of such Pyramid Agreements in any respect that is reasonably
likely to result in the Company's failure to consummate the acquisition
contemplated by the Pyramid Agreements on the Closing Date; all of the
material conditions to which the Pyramid Merger is subject have been
fulfilled, and the Company is unconditionally obligated and legally bound to
consummate the Pyramid Merger.
(xx) The Company and the Merger Subsidiary have the
requisite power and authority to enter into the Pyramid Agreements and
perform their obligations thereunder. The execution, delivery and performance
of the Pyramid Agreements by the Company and the Merger Subsidiary have been
duly authorized and no further corporate action is necessary to authorize
such execution, delivery and performance. The Pyramid Agreements have been
duly executed and delivered by the Company and the Merger Subsidiary, are in
full force and effect and are valid and legally binding obligations of the
parties thereto enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium or other
laws affecting creditors' rights generally and by general principles of
equity, and have not been amended or modified in any material respect.
(xxi) Except as contemplated by or otherwise disclosed in
the Pyramid Agreements: (a) the execution and delivery of the Pyramid
Agreements do not, and the consummation of the transactions contemplated
thereby by the Company and the Merger Subsidiary will not, conflict with or
result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, the respective Certificates of Incorporation or
Bylaws of either of the Company or the Merger Subsidiary, or any agreement to
which either of the Company or the Merger Subsidiary is a party to or by
which the Company or the Merger Subsidiary is bound, or any law, statute,
rule, regulation, order, judgment or decree affecting either of the Company
or the Merger Subsidiary; and (b) no consent, authorization, approval, order,
license, certificate or permit of or from, or declaration of filing with, any
federal, state, local or other governmental authority or any court or other
tribunal and no consent, approval or waiver of any party to any agreement to
which the Company or the Merger Subsidiary is subject, is required for the
execution and delivery of the Pyramid Agreements or the consummation of the
transactions contemplated thereby.
(xxii) No action or proceedings have been instituted or
threatened before a court or other body or any public authority to restrict
or prohibit any of the transactions contemplated by the Pyramid Agreements.
(xxiii) Except for those matters which are specifically
disclosed in the Prospectus or which would not reasonably be expected to
result in a Material Adverse Change: (a) each of the Company and its
Subsidiaries is in compliance with all applicable environmental laws, rules
and regulations ("Environmental Laws"), (b) each of the Company and its
Subsidiaries has all environmental permits and approvals required to operate
their businesses as presently conducted or as reasonably anticipated to be
conducted, (c) neither the Company nor its Subsidiaries has received any
written, or to the Company's knowledge other, communication from a
governmental authority that alleges that such Company or Subsidiary is not in
compliance with all Environmental Laws, (d) to the Company's knowledge, there
are no circumstances that may prevent or interfere with such compliance in
the future, (e) there is no claim regarding environmental matters pending or,
to the Company's knowledge, threatened against the Company or any Subsidiary,
(f) there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the release,
emission, discharge or disposal of any material or substance of environmental
concern, that could form the basis of any environmental claims against any of
the Company or its Subsidiaries; and (g) (1) there are no on-site or off-site
locations in which either of the Company or its Subsidiaries have stored,
disposed or arranged for the disposal of materials or substances of
environmental concern, (2) there are no underground storage tanks located on
property owned or leased by the Company or its Subsidiaries, (3) there is no
friable asbestos contained in or forming part of any building, building
component, structure or office space owned or leased by the Company or its
Subsidiaries, and (4) no polychlorinated biphenyls are used or stored at any
property owned or leased by the Company or its Subsidiaries.
(xxiv) Except for those matters which individually or in the
aggregate, have not resulted in or are not reasonably likely to result in a
Material Adverse Change, (a) the Company or its Subsidiaries own and possess
all right, title and interest in and to, or have a valid license to use, all
of their Intellectual Property (as defined below) free and clear of
encumbrances and other interests; (b) the Company or its Subsidiaries own and
possess all right, title and interest in and to all Intellectual Property
necessary or required for the use and operation of the Company's personal
property; (c) the Company or its Subsidiaries have full ownership rights and
interests in and to all of the trade secrets used in connection with their
personal property; (d) no claim by any third party contesting the validity,
enforceability, use or ownership of any Intellectual Property has been made
or, to the Company's knowledge, is threatened against the Company or any
affiliate of the Company; (e) neither the Company nor any Subsidiary has
infringed or misappropriated any Intellectual Property and, to the Company's
knowledge, no such claim has been made or threatened against the Company or
any Subsidiary; (f) the Company has taken reasonable and prudent steps to
protect the Intellectual Property from infringement by any other individual
or entity; and (g) the operations of the Company or its Subsidiaries are not
reasonably likely to result in the infringement or misappropriation of any
Intellectual Property rights of third parties. As used in this Agreement,
"Intellectual Property" means: all patents, patent applications, patent
disclosures and inventions (whether or not patentable and whether or not
reduced to practice); all trade names, trademarks, trade dress, logos and all
goodwill associated therewith; all copyrights, copyrightable work, and mask
works; all registrations and applications and renewals for any of the
foregoing; all trade secrets, manufacturing and production processes and
techniques, technical and computer data, documentation and software, software
licenses, all tangible embodiments thereof. To the Company's knowledge, the
representations and warranties regarding Intellectual Property set forth in
Section 3.9 of the Pyramid Agreements are true and correct as of the date of
this Agreement.
(xxv) The Company has taken all requisite corporate and
other action to approve and adopt the spin-off to the Company's current
stockholders of all of the outstanding capital stock of its subsidiary,
Hatteras Yachts Inc., a Delaware corporation (the "Hatteras Subsidiary")
which operates the Hatteras Yachts division of the Company (the "Hatteras
Spin-Off"), to be effective immediately prior to the Closing. In this regard,
the Company has delivered to you a true and complete copy of the Distribution
Agreement by and among the Company, Minstar, Inc., Genmar Industries, Inc.
and Hatteras Yachts, Inc.; the Capital Contribution Agreement between Genmar
Industries, Inc., and Hatteras Yachts, Inc.; and the Shareholders' Agreement
by and among Hatteras Yachts, Inc. and the Shareholders of Hatteras Yachts,
Inc., together with all related attachments and exhibits (the "Hatteras
Agreements"), which have been executed and delivered among the parties
thereto, and which provide for the Hatteras Spin-Off and contemplate certain
actions by each of the Company and the Hatteras Subsidiary at and after the
time of the Hatteras Spin-Off. Neither the Company nor the Hatteras
Subsidiary is in default under the terms of
the Hatteras Agreements, and all of the material conditions to which the
Hatteras Spin-Off is subject have been fulfilled, except for the sale of the
Underwritten Shares by the Underwriters.
(xxvi) The Company and the Hatteras Subsidiary have the
requisite power and authority to enter into the Hatteras Agreements and
perform their obligations thereunder. The execution, delivery and performance
of the Hatteras Agreements by the Company and the Hatteras Subsidiary have
been duly authorized and no further corporate action is necessary to
authorize such execution, delivery and performance. The Hatteras Agreements
have been duly executed and delivered by the Company and the Hatteras
Subsidiary, are in full force and effect and are valid and legally binding
obligations of the parties thereto enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and by general
principles of equity, and have not been amended or modified in any material
respect.
(xxvii) Except as contemplated by or otherwise disclosed in
the Hatteras Agreements: (a) the execution and delivery of the Hatteras
Agreements do not, and the consummation of the transactions contemplated
thereby by the Company and the Hatteras Subsidiary will not, conflict with or
result in a breach of any of the terms, conditions or provisions of, or
constitute a default under, the respective certificates of incorporation or
bylaws of either the Company or the Hatteras Subsidiary, or any agreement to
which either the Company or the Hatteras Subsidiary is a party or by which
the Company or the Hatteras Subsidiary is bound, or any law, statute, rule,
regulation, order, judgment or decree affecting either the Company or the
Hatteras Subsidiary; and (b) no consent, authorization, approval, order,
license, certificate or permit of or from, or declaration of filing with, any
federal, state, local or other governmental authority or any court or other
tribunal and no consent, approval or waiver of any party to any agreement to
which the Company or the Hatteras Subsidiary is subject, is required for the
execution and delivery of the Hatteras Agreements or the consummation of the
transactions contemplated thereby.
(xxviii) No action or proceedings have been instituted or
threatened before a court or other body or any public authority seeking to
restrict or prohibit any of the transactions contemplated by the Hatteras
Agreements.
(xxix) Upon completion of the Hatteras Spin-Off, the assets
and liabilities of the Hatteras Subsidiary will consist only of those assets
used in the operation of the Hatteras Yacht division of the Company, (the
"Hatteras Assets"), and those liabilities assigned to the Hatteras Subsidiary
by the Company in accordance with the terms of the Hatteras Agreements.
(b) Any certificate signed by any officer of the Company and
delivered to you or counsel for the Representatives shall be deemed a
representation and warranty by the Company to the Underwriters as to the
matters covered thereby.
2. PURCHASE, SALE AND DELIVERY OF THE UNDERWRITTEN SHARES. On the
basis of the representations, warranties and covenants herein contained, and
subject to the terms and conditions herein set forth, the Company agrees to
sell each Underwriter, severally and not jointly, and each Underwriter
agrees, severally and not jointly, to purchase, at a price of $_______ per
share, the number of the Underwritten Shares set forth opposite the name of
each Underwriter in Schedule I attached hereto, subject to adjustment in
accordance with Section 10 hereof.
Payment for the Underwritten Shares shall be made by wire transfer
of immediately available funds to a designated account of the Company, drawn
to the order of the Company, against delivery of certificates for the Shares
to the Representatives for the accounts of the several Underwriters. Delivery
of certificates shall be to the Representatives at 000 Xxxxxx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000. Payment will be made at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Company, at _______, Central Time, on
________________, 1999 or at such other appropriate time and date as you and
the Company shall agree upon, such time and date of payment being herein
referred to as the "Closing Date." The certificates for the Underwritten
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 at such place as the Representatives may
reasonably request, at least one full business day prior to the Closing Date.
In addition, on the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an Option to the
several Underwriters to purchase all or any part of the Option Shares at the
price per share as set forth in the first paragraph of this Section 2. The
Option may be exercised in whole or in part at any time upon written notice
(or oral notice, subsequently confirmed in writing) given not more than
thirty (30) days following the date of commencement of the Public Offering,
by you, as the Representatives of the several Underwriters, to the Company
setting forth the number of Option Shares as to which the several
Underwriters are exercising the Option and the names and denominations in
which the Option Shares are to be registered. The date of delivery and
payment for the Option Shares (the "Option Closing Date"), if any, shall
occur no later than three business days following the date upon which notice
of exercise of the Option is given to the Company. The number of Option
Shares to be purchased by each Underwriter shall be in the same proportion as
the total number of Underwritten Shares being purchased by such Underwriter
bears to the total number of Underwritten Shares being purchased by all
Underwriters, adjusted by you in such manner to avoid fractional shares. The
Option may be exercised only to cover over-allotments in the sale of the
Underwritten Shares by the Underwriters. You, as the Representatives of the
several Underwriters, may cancel such Option at any time prior to its
expiration by giving written notice (or oral notice, subsequently confirmed
in writing) of such cancellation to the Company. To the extent, if any, that
the Option is exercised, payment for the Option Shares shall be made at such
closing on the Option Closing Date by wire transfer of immediately available
funds to a designated account of the Company, drawn to the order of the
Company. Certificates for the Option Shares shall be delivered in the same
manner and upon the same terms as the Underwritten Shares.
3. OFFERING BY THE UNDERWRITERS. It is understood that the Public
Offering of the Underwritten Shares is to be made as soon as the
Representatives deem it advisable to do so after the Registration Statement
has become effective. The Underwritten Shares are to be initially offered to
the public at the 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.
It is further understood that you will act as the Representatives
for the Underwriters in the offering and sale of the Shares, in accordance
with an Agreement Among Underwriters which has been entered into among you
and the several other Underwriters.
4. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees with each of the several
Underwriters that:
(i) The Company will use its best efforts to cause the
Registration Statement to become effective and will not, either before or
after effectiveness, file any amendment thereto or supplement to the
Prospectus (including a Prospectus filed pursuant to Rule 424(b) which
differs from the Prospectus on file at the time the Registration Statement
becomes effective) 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
Act or Rules.
(ii) The Company will advise the Representatives promptly of
any request of the Commission or other securities regulatory agency ("Other
Securities Regulator") 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, or comparable action taken or initiated
by any Other Securities Regulator, 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.
(iii) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions (including foreign jurisdictions) as the Representatives
reasonably may 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 HOWEVER, 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 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
reasonably required to continue such qualifications in effect for so long a
period as the Representatives may reasonably request for distribution of the
Shares.
(iv) 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 on the Effective Date
and thereafter from time to time 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 such number of copies of the Registration Statement,
with and without exhibits, and of all amendments thereto, as the
Representatives may reasonably request.
(v) During the period of time in which a Prospectus
relating to the Shares is required by law to be delivered, the Company shall
comply with all requirements imposed upon it by the Act, as now and hereafter
amended, and by the Rules, as from time to time in force, so far as is
necessary to permit the continuance of sales of or dealings in the Shares as
contemplated by the provisions hereof and the Prospectus. If, during the
period in which a Prospectus is required by law to be delivered, 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 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 will promptly
notify the Representatives and, subject to the Representatives' prior review,
prepare and file with the Commission and any appropriate Other Securities
Regulator an appropriate supplement to the Prospectus (at the expense of the
Company) so that the Prospectus as so supplemented will not, in light of the
circumstances when it is so delivered, be misleading, or so that the
Prospectus will comply with the law.
(vi) The Company will make generally available (within the
meaning of Section 11(a) of the Act) to its stockholders in the manner
contemplated by Rule 158(b) under the Act, as soon as it is practicable to do
so, but in any event not later than the forty-fifth day after the fiscal
quarter first occurring one year after the Effective Date, an earnings
statement (which need not be audited) in reasonable detail, covering a period
of at least twelve consecutive months beginning after the Effective Date,
which earnings statement shall satisfy the requirements of Section 11(a) of
the Act.
(vii) During the three year period immediately following the
date hereof, the Company will furnish to its stockholders, as soon as
practicable after the end of each respective period, annual reports
(including consolidated financial statements audited by independent public
accountants) and unaudited quarterly reports of consolidated earnings, and
will furnish to the Representatives: (a) concurrently with furnishing such
reports to its stockholders, consolidated statements of income of the Company
and its Subsidiaries for each period in the form furnished to the Company's
stockholders and certified by the Company's principal financial or accounting
officer; (b) concurrently with furnishing to its stockholders, a consolidated
balance sheet of the Company as at the end of such fiscal year, together with
consolidated statements of income, stockholders' equity and cash flows of the
Company and its Subsidiaries for such fiscal year, all in reasonable detail
and accompanied by a copy of the certificate or report thereon of independent
public accountants; (c) as soon as they are available, copies of all reports
(financial or other) mailed to stockholders; (d) as soon as they are
available, copies of all reports and financial statements furnished to or
filed with the Commission, the National Association of Securities Dealers,
Inc. ("NASD") or any securities exchange; (e) every press release released by
the Company; and (f) any additional information of a public nature concerning
the Company or its business which the Representatives may reasonably request.
(viii) As soon as the Company is advised thereof, it will
advise the Representatives, and confirm the advice in writing, that the
Registration Statement and any amendments shall have become effective.
(ix) The Company will use the net proceeds from the sale of
the Shares in the manner set forth in the Prospectus under the caption "Use
of Proceeds" and shall file such reports with the Commission with respect to
the sale of the Shares and the application of the proceeds therefrom as may
be required in accordance with Rule 463 under the Act.
(x) Other than as permitted by the Act and the Rules, the
Company will not distribute any prospectus or offering materials in
connection with the offering and sale of the Shares and prior to the Closing
Date or, if applicable, the Option Closing Date, will not issue any press
releases or other communications directly or indirectly, and will hold no
press conferences with respect to the Company or any of its Subsidiaries, the
financial condition, results of operations, business, properties, assets or
liabilities of the Company or any of its Subsidiaries, or the offering of the
Shares, without the prior written consent of the Representatives.
(xi) The Company will maintain an independent institutional
transfer agent and, if required by the jurisdiction of incorporation of the
Company, a registrar for its Common Stock and will, as of the Effective Date,
obtain approval for and use its best efforts to maintain the quotation of the
Shares on the Nasdaq National Market.
(xii) The Company will not, for a period of 180 days after
the Effective Date of the Registration Statement, offer to sell, contract to
sell, sell or otherwise dispose of any shares of the Company's Common Stock
or securities convertible into shares of the Company's Common Stock without
the prior written consent of Xxxxxxxx Inc. Further, the Company will cause
each officer and director of the Company, and each of the members of the
respective groups of affiliated persons listed as principal stockholders of
the Company under the caption "Principal Stockholders" in the Prospectus to
furnish to the Representatives on or prior to the execution of this
Agreement, a letter or letters in form and substance satisfactory to counsel
for Underwriters, pursuant to which each such person shall agree not to offer
for sale, sell, distribute or otherwise dispose of any shares of Common Stock
of the Company during the 180 days following the Effective Date, except with
the prior written consent of Xxxxxxxx Inc.
The foregoing covenants and agreements shall apply to any successor
of the Company, including without limitation, any entity into which the
Company might be converted, consolidated or merged.
5. COSTS AND EXPENSES. Whether or not the Registration Statement
becomes effective, 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 Underwriters copies of the
Registration Statement, preliminary prospectus, the Prospectus, this
Agreement, the Agreement Among Underwriters, the Selected Dealer Agreement,
the Underwriters' Questionnaire and Power of Attorney, and any blue sky
survey and any supplements thereto; the filing fees of the Commission; the
filing fees and expenses incident to securing any required review by the SEC
and the NASD of the terms of the sale of the Shares; any applicable listing
fees; the cost of printing certificates representing the Shares; the cost and
charges of any transfer agent or registrar; and the expenses, including the
reasonable fees and disbursements of counsel for the Underwriters, incurred
in connection with the qualification or exemption of the Shares under
applicable blue sky laws and the laws of any foreign jurisdiction. Any
transfer taxes imposed on the sale of the Shares to the Underwriters will be
paid by the Company. The Company shall not, however, be required to pay for
any of the Underwriters' expenses (other than those related to qualification
or exemption under blue sky and foreign laws) 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 unless such termination results from a failure
to satisfy a condition due to the default or omission of any Underwriter
(including any default under Section 10 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 their part to be performed, unless such failure to satisfy said
condition or to comply with said terms is due to the default or omission
of any Underwriter (including any default under Section 10 hereof), then the
Company shall reimburse the several Underwriters for all of their
out-of-pocket costs and expenses, including attorneys' fees and out-of-pocket
expenses, 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 obligations
of the several Underwriters are subject to the accuracy, as of the Closing
Date and as of the Option Closing Date, of the representations and warranties
of the Company contained herein, and to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than _________, Central Time, on ____________, 1999, unless a later
time and date is agreed to by the Representatives, and no stop order or other
order suspending the effectiveness thereof or the qualification of the Shares
under any blue sky laws or the laws of any foreign jurisdiction shall have
been issued and no proceeding for that purpose shall have been taken or, to
the knowledge of the Company, shall be contemplated or threatened by the
Commission or any Other Securities Regulator. If the Company has elected to
rely upon Rule 430A of the Rules, the price of the Shares and any
price-related information previously omitted from the effective Registration
Statement pursuant to such Rule 430A shall have been transmitted to the
Commission for filing pursuant to Rule 424(b) of the Act within the
prescribed time period, and prior to the Closing Date, the Company shall have
provided evidence satisfactory to the Representatives of such timely filing,
or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A under the Act. All requests for additional information on the part
of the Commission or any other government or regulatory authority with
jurisdiction (to be included in the Registration Statement or Prospectus or
otherwise) shall be complied with to the satisfaction of the Commission or
such authorities.
(b) The Representatives shall have received on the Closing Date
and on the Option Closing Date the opinion of Weil, Gotshal & Xxxxxx, counsel
for the Company, dated the Closing Date and the Option Closing Date, as the
case may be, addressed to the Underwriters in form and substance reasonably
satisfactory to Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, plc, counsel to
Underwriters, to the effect that:
(i) The Company is validly existing as a corporation in
good standing under the laws of the State of Delaware with full corporate
power and authority to own its properties and conduct its business as
described in the Prospectus and the Registration Statement; each of the
Subsidiaries is validly existing as a corporation or other lawfully organized
entity in good standing under the laws of the State of Delaware and has
corporate and other power and authority to own or lease its properties and
conduct its business as described in the Prospectus and the Registration
Statement; each of the Company and the Subsidiaries is duly qualified to
transact business in all jurisdictions in which the conduct of its business
or the ownership of the properties requires such qualification; all of the
outstanding shares of capital stock or other ownership interests of each
Subsidiary are owned by the Company and have been validly authorized and
issued and are fully paid and non-assessable; and except as set forth in the
Prospectus and the Registration Statement 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 other
ownership interests in the Subsidiaries are outstanding.
(ii) The Company has authorized the capital stock set forth
under the caption "Description of Capital Stock" in the Prospectus; the
outstanding shares of its capital stock have been duly authorized and validly
issued and are fully paid and non-assessable; all of the Shares conform to
the description thereof contained in the Prospectus; the Underwritten Shares,
and the portion of the Option Shares, if any, to be sold pursuant to this
Agreement have been duly authorized and will be validly issued, fully paid
and non-assessable when issued and paid for as contemplated by this
Agreement, and free from preemptive rights pursuant to the Company's Restated
Certificate of Incorporation or law.
(iii) The Registration Statement has become effective under
the Act, and such counsel is not aware of any stop order suspending the
effectiveness of the Registration Statement. To such counsel's knowledge, no
proceedings therefor have been initiated or overtly threatened by the
Commission and any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) under the Act has been made in the manner and
within the time period required by such Rule.
(iv) The Registration Statement and the Prospectus comply as
to form in all material respects with the requirements of the Act and the
Rules (except that such counsel need not express any opinion as to the
financial statements, schedules and notes thereto and the other financial,
statistical and accounting information included therein).
(v) The information required to be set forth in the
Registration Statement in answer to each of the Items of Form S-1 is
accurately and adequately set forth in all material respects or no response
is required with respect to such Items. The statements in the Registration
Statement under the captions "The Company - Recent Acquisitions," "Business
Patents and Trademarks," "Business - Regulation and Environmental," "Business
Legal Proceedings," "Management-Director Compensation" "Management-Certain
Stock-Based Compensation," "ManagementRetention Bonus Agreements,"
"Management - Management Incentive Plan," "Management - Senior Executive
Option Grants," "Management -Stock Awards and Plans," "Management -
Retirement Plans and Insurance," "Management Executive Severance Plan,"
"Certain Transactions" and "Description of Capital Stock," in each case
insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein in all material respects.
(vi) To such counsel's knowledge there are no legal or
governmental proceedings pending or overtly threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties 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 so
described. There are no contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed as
required.
(vii) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity) and except that rights to indemnification and contribution
thereunder may be limited by federal or state securities laws or public
policy relating thereto.
(viii) The execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations thereunder
will not result in the creation of any lien, charge or claim upon any
property or asset of the Company or any Subsidiary nor will such actions
conflict with or constitute a default under or violate (i) any of the terms,
conditions or provisions of the Restated Certificate of Incorporation or any
certificate of incorporation or by-laws of the Company or its Subsidiaries,
(ii) any of the terms, conditions or provisions of any material document,
agreement or other instrument known to such counsel to which the Company or
its Subsidiaries is a party or by which they are bound, (iii) New York,
Delaware or federal law or regulation (other than state securities or blue
sky laws, as to which such counsel need not express any opinion in this
paragraph), or (iv) any judgment, writ, injunction, decree, order or ruling
known to such counsel of any court or governmental authority binding on the
Company.
(ix) No consent, approval, waiver, license or authorization
or other action by or filing with any New York, Delaware or federal
governmental authority is required in connection with the execution and
delivery by the Company of this Agreement, the consummation by the Company of
the transactions contemplated hereby or the performance by the Company of its
obligations hereunder, except for filings and other actions required
pursuant to the Act and/or the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder and state securities or blue sky
laws, as to which such counsel need not express any opinion in this
paragraph, and those already obtained.
(x) The Hatteras Agreements have been duly and validly
executed and delivered by the Company and the Hatteras Subsidiary and
(assuming the due authorization, execution and delivery thereof by each of
the other parties thereto) constitute the legal, valid and binding obligation
of the Company and the Hatteras Subsidiary, enforceable against each of the
Company and the Hatteras Subsidiary in accordance with their terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity and except that (A) rights to indemnification and
contribution thereunder may be limited by federal or state securities laws or
public policy relating thereto, (B) no opinion is expressed with respect to
Section ________ of the _______ Agreement, and (C) certain remedial
provisions of the Hatteras Agreements are or may be unenforceable in whole or
in part under the laws of the State of New York, but the inclusion of such
provisions does not affect the validity of the Hatteras Agreements, and the
Hatteras Agreements contain adequate provisions for the practical realization
of the rights and benefits afforded thereby.
(xi) Except as contemplated by or otherwise disclosed in the
Hatteras Agreements: (a) neither the Company nor the Hatteras Subsidiary is,
or with the giving of notice or lapse of time or both would be in violation
of or in default under, nor will the execution or delivery of the Hatteras
Agreements and the performance of the Company and the Hatteras Subsidiary of
its obligations thereunder, result in a violation of, or constitute a default
under, the respective certificates of incorporation or bylaws of either of
the Company or the Hatteras Subsidiary, or any material agreement known to
such counsel, to which the Company or the Hatteras Subsidiary is a party or
by which either of then is bound or to which any of their properties is
subject, nor will the performance of the Company or the Hatteras Subsidiary
of its obligations under the Hatteras Agreements violate (i) any federal, New
York or Delaware corporate law, rule or administrative regulation or (ii) any
decree of any court or any governmental agency or body having jurisdiction
over the Company, the Hatteras Subsidiary or their properties; and (b) no
approval, consent, order, authorization, designation, declaration or filing
by or with any regulatory administrative or other governmental body is
necessary under federal or New York law or the corporate laws of the State of
Delaware in connection with the execution and delivery of the Hatteras
Agreements (other than required by applicable blue sky laws or the laws of
any foreign jurisdiction, as to which such counsel need not express any
opinion) except such as have been obtained or made, specifying the same.
(xii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or overtly threatened to which the Company
or the Hatteras Subsidiary is a party seeking to restrict or prohibit any of
the transactions contemplated by the Hatteras Agreements.
(xiii) The transfer by the Company of the Hatteras Assets to
the Hatteras Subsidiary, solely in exchange for the capital stock of the
Hatteras Subsidiary, and the assumption by the Hatteras Subsidiary of the
liabilities of the Company incurred in connection with the Hatteras Yacht
division operated by the Company, followed by the Company's distribution of
the capital stock of the Hatteras Subsidiary to the current stockholders of
the Company, constitute a reorganization with the meaning of Section
368(a)(1)(D) of the Code.
(xiv) Each of the Company and Hatteras is a party to a
reorganization within the meaning of Section 368(b) of the Code.
(xv) The Company, under Section 361(a) of the Code, will
recognize no gain or loss upon or by reason of the transfer of the Hatteras
Assets to the Hatteras Subsidiary, solely in exchange for the stock of the
Hatteras Subsidiary and the assumption by the Hatteras Subsidiary of the
liabilities of the Company incurred in connection with the operations of the
Hatteras Yacht division operated by the Company.
(xvi) The Company, under Section 361(c)(1) of the Code, will
recognize no gain or loss upon or by reason of the distribution of all the
Hatteras Subsidiary stock to the Company's stockholders.
(xvii) Except as set forth in the Prospectus, no holders of
Common Stock or other securities of the Company have registration rights with
respect to such securities.
(xviii) Except as set forth in the Prospectus, any holders of
securities of the Company who have or upon the Closing will have rights to
the registration of shares of Common Stock or other securities because of the
filing of the Registration Statement by the Company, have waived such rights
in writing.
In addition to the matters set forth above, such
opinion shall also include a statement to the effect that such counsel has
participated in conferences with directors, officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, representatives of the Underwriters and
representatives of counsel for the Underwriters, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed, and, although such counsel has not independently verified and
need not pass upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus, no facts have come to its attention which lead it
to believe that the Registration Statement, on the effective date thereof,
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 contained therein not misleading or that the Prospectus, on the
date thereof or on the date hereof, 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 contained therein, in
light of the circumstances under which they were made, not misleading (it
being understood that such counsel need not express any view with respect to
the financial statements and related notes, the financial statement schedules
and the other financial ,statistical and accounting data included in the
Registration Statement or Prospectus).
Such opinion shall be to such further effect with respect to other
legal matters relating to this Agreement as Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx,
plc, counsel to the Underwriters, may reasonably request.
(c) The Representatives shall have received from Xxxxxx, Xxxxxxx,
Xxxxxx & Xxxxxx, plc, counsel to the Underwriters, an opinion dated the
Closing Date, substantially to the effects specified in subparagraphs (iii)
and (iv) of 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
such counsel has participated in conferences with directors, officers and
other representatives of the Company, representatives of counsel for the
Company, representatives of the independent public accountants for the
Company and representatives of the Underwriters at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed, and, although such counsel has not independently verified and
need not pass upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus, no facts have come to its attention which lead it
to believe that the Registration Statement, on the effective date thereof,
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 contained therein not misleading or that the Prospectus, on the
date thereof or on the date hereof, 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 contained therein, in
light of the circumstances under which they were made, not misleading (it
being understood that such counsel need not express any view with respect to
the financial statements and related notes, the financial statement schedules
and the other financial, statistical and accounting data included in the
Registration Statement or Prospectus).
(d) The Representatives shall have received from Xxxx X.
XxXxxxxxx, Esq., Senior Vice President, Secretary and General Counsel for the
Company, an opinion dated the Closing Date, and on the Option Closing Date,
as the case may be, in form and substance reasonably satisfactory to Xxxxxx,
Xxxxxxx, Xxxxxx & Xxxxxx, plc, counsel to the Underwriters substantially to
the effect specified in subparagraph (xxiii) of paragraph (a) of Section 1
above.
(e) The Representatives shall have received from Xxxxxx and
Xxxxxx, P.A., Counsel to the Company, an opinion dated the Closing Date, and
on the Option Closing Date, as the case may be, in form and substance
reasonably satisfactory to Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, plc, counsel to
the Underwriters, substantially to the effect specified in subparagraphs
(xix)-(xxii), inclusive, of paragraph (a) of Section 1 above.
(f) The Representatives shall have received on the Closing Date,
and on the Option Closing Date, as the case may be, signed letters from
Xxxxxx Xxxxxxxx LLP addressed to the Underwriters dated as of the Effective
Date and again dated as of the Closing Date and as of the Option Closing
Date, as the case may be, with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus. All such letters shall be in form and substance satisfactory to
the Representatives and Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, plc, counsel to the
Underwriters.
(g) The Representatives shall have received a signed letter from
Xxxxxx Xxxxxxxx LLP, independent public accountants, stating that their
review of the Company's system of internal accounting controls to the extent
they deemed necessary in establishing the scope of their examination of the
Company's consolidated financial statements as of June 30, 1999 did not
disclose any weakness in internal controls that they considered to be a
material weakness.
(h) The Representatives shall have received on the Closing Date,
and on 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 and on the Option
Closing Date, as the case may be, each of them severally certifies as follows:
(i) (A) The representations and warranties of the Company
in this Agreement are true and correct on and as of the Closing Date, and on
the Option Closing Date, as the case may be, and (B) the Company has complied
with all the agreements and has satisfied all of the conditions on its part
to be performed or satisfied at or prior to the Closing Date, and at or prior
to the Option Closing Date, as the case may be.
(ii) (A) The Registration Statement has become effective
under the Act; (B) no stop order suspending the effectiveness of the
Registration Statement or the use or effectiveness of the Prospectus has been
issued; (C) no proceedings for such purpose have been taken or, to his
knowledge, are contemplated by the Commission or any Other Securities
Regulator; and (D) all requests for additional information on the part of the
Commission or any Other Securities Regulator have been complied with.
(iii) No litigation has been instituted or, to the best of
his knowledge, threatened against the Company or any Subsidiary of a
character required to be disclosed in the Registration Statement which is not
so disclosed; there is no contract required to be filed as an exhibit to the
Registration Statement which is not so filed.
(iv) He has carefully examined the Registration Statement
and the Prospectus and in his opinion, on the Effective Date: (A) the
statements contained in the Registration Statement and the Prospectus were
true and correct, (B) such Registration Statement and Prospectus 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 (C) since the Effective
Date, no event has occurred which should have been set forth in a supplement
to or an amendment to the Registration Statement or the Prospectus in order
to render any statement contained in the Registration Statement or Prospectus
not misleading, which has not been so set forth in such supplement or
amendment.
(i) At or prior to the Closing Date, the Board of Directors of the
Company shall have adopted a resolution to the effect that effective upon
completion of the Offering, all material affiliate transactions between the
Company or its Subsidiaries and the Company's officers, directors, principal
stockholders and other affiliates shall be subject to the approval of a
majority of the Company's disinterested directors and shall be on terms no
less favorable to the Company than could be obtained from unaffiliated third
parties.
(j) The Company shall have furnished to the Representatives such
additional information and further certificates and documents confirming the
representations and warranties contained herein and related matters as the
Representatives may reasonably have requested.
(k) Since the respective dates as of which information is given in
the Prospectus, there shall not have occurred any Material Adverse Change
whether or not arising in the ordinary course of business.
(l) The Shares shall have been approved for trading on the Nasdaq
National Market.
(m) The Company shall have consummated the Hatteras Spin-Off in
compliance with the terms and conditions of the Hatteras Agreements and as
described in the Prospectus.
(n) The Company shall have consummated the Pyramid Merger by a
closing into escrow, subject only to the filing of the Certificate of Merger
and release of escrow on the Closing Date, and the Certificate of Merger
shall have been duly filed and the escrow released prior to the Closing.
(o) The Representatives shall have received from Merchant & Xxxxx,
Intellectual Property Counsel to the Company, an opinion dated the Closing
Date, and on the Option Closing Date, as the case may be, in form and
substance reasonably satisfactory to Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, plc,
counsel to the Underwriters substantially to the effect specified in
subparagraph (xxiv) of paragraph (a) of Section 1above and to such further
effect as Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, plc may reasonably request.
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 Xxxxxx, Xxxxxxx,
Xxxxxx & Xxxxxx, plc, 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 confirmed telefax at or prior to the Closing Date. 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 Shares are subject to the conditions
that (a) at or before __________, Central Time, on _____________, or such
later time and date as the Company and the Representatives may from time to
time consent to in writing or by confirmed telefax, the Registration
Statement shall have become effective, and (b) at the Closing Date no stop
order suspending the effectiveness of the Registration Statement shall have
been issued or proceedings therefor initiated or threatened. If either of the
Conditions hereinabove provided for in this Section 7 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Company by notifying the Representatives
of such termination in writing or by confirmed facsimile at or prior to the
Closing Date.
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 Section 15 of the Act and Section 20(a) of the Exchange Act from
and against any and all losses, claims, damages, liabilities, joint or
several, and expenses (including costs of investigation and legal expenses)
to which such Underwriter or such controlling person may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities, joint or several, and expenses (or actions or
proceedings in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of material fact contained in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were made) not
misleading; provided, HOWEVER, that the Company will not be liable under this
Section 8(a) to any Underwriter in any such case to the extent that any such
loss, claim, damage, liability or expense arise out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission
made in the Registration Statement, any preliminary prospectus, the
Prospectus, or 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 and
provided, further, that with respect to any preliminary prospectus, such
indemnity shall not inure to the benefit of any Underwriter or controlling
person if the person asserting any such losses, claims, damages, liabilities
or expenses purchased the Shares that are the subject thereof from such
Underwriter and if such person was not sent or given a copy of the Prospectus
at or prior to confirmation of the sale of such Shares to such person in any
case where such sending or giving is required by the Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally, but not jointly, agrees to
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 Section 15 of the Act and
Section 20(a) of the Exchange Act, from and against any losses, claims,
damages, liabilities, joint or several, and expenses to which the Company or
any such director, officer, or controlling person may become subject, under
the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities and expenses (or actions or proceedings in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of material fact contained in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein (in the case of the Prospectus, in light of
the circumstance under which they were made) not misleading; provided,
however, that each Underwriter will be liable under this Section 8(b) in any
such case 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 expressly for use
in the preparation 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 or proceeding, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure 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, and then only
to the extent that the indemnifying party is actually prejudiced by the
omission of such notification. In case any such action or proceeding is
brought against any party, and it notifies an 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, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding. Any indemnified party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the employment
of such counsel has been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party has failed to assume the
defense and employ counsel, or (iii) the named parties to any such action
(including any impleaded parties) include such indemnified party and the
indemnifying party, as the case may be, and such indemnified party shall have
been advised in writing by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party, in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of
such indemnified party, it being understood, however, that (A) the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all such indemnified party, which firm
shall be designated in writing by the indemnified party, and that (B) all
such fees and expenses shall be reimbursed as they are incurred. Subject to
the foregoing provisions of this Section 8(c), the indemnifying party shall
not be liable for the costs and expenses of any settlement of any action
without the consent of the indemnifying party.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is
for any reason held to be unavailable to an indemnified party under
subsection (a) or (b) above in respect to any losses, claims, damages,
liabilities or expenses referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and expenses (i) 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 hand, from the
offering of the Shares or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the parties in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, 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 hand shall be deemed to be in the same proportion
as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company bears to
the underwriting discounts and commissions received by the Underwriters. The
relative fault of a party 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 each party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any such action
or claim.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 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 in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriters have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute shall be 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. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements of the Company and
officers of the Company contained herein or in certificates delivered
pursuant hereto, and the indemnity and contribution agreements contained in
Section 8 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriters or
any controlling person, or by or on behalf of the Company or any of its
officers, directors or controlling persons, and shall survive delivery of the
Underwritten Shares and, as applicable, the Option Shares to the
Representatives or termination of this Agreement.
10. DEFAULT BY UNDERWRITERS. If any Underwriter shall fail to
purchase and pay for the Shares which such Underwriter has agreed to purchase
and pay for hereunder (otherwise than by reason of any default on the part of
the Company), you, as the Representatives of the Underwriters, shall use your
best efforts to procure within twenty-four 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 Shares
which the defaulting Underwriter or Underwriters failed to purchase. If
during such twenty-four hours you, as such Representatives, shall not have
procured such other Underwriters, or any others, to purchase the Shares
agreed to be purchased by the defaulting Underwriter or Underwriters, then
(a) if the aggregate number of Shares that the defaulting Underwriter agreed
to but failed to purchase does not exceed 10% of the Shares which the
Underwriters are obligated to purchase hereby, the other Underwriters shall
be obligated, severally, in proportion to the respective number of shares
which they are obligated to purchase hereunder, to purchase the Shares which
such defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of Shares with respect with which such default shall occur
exceeds 10% of the Company's Common Stock covered hereby, the Company or you,
as the Representatives of the Underwriters will have the right, by written
notice given within the next twenty-four 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 10, the time of closing may be
postponed for such period, not to exceed seven days, as you, as the
Representatives, 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 "Underwriters" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section
10 shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
11. NOTICES. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telefaxed
and confirmed as follows: if to the Representatives of the Underwriters, to
Xxxxxxxx Inc., 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: W.
Xxxxx Xxxxx, Head of Syndicate & Capital Markets, and to U.S. Bancorp Xxxxx
Xxxxxxx Inc., 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxx Xxxxx, with a copy to Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, plc,
000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: H.
Xxxx Xxxxxxx, III; if to the Company: to Genmar Holdings, Inc., 000 Xxxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxx X.
XxXxxxxxx, Esq., Senior Vice President, Secretary and General Counsel, with a
copy to Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxxx X. Xxxxx, Esq.
12. TERMINATION. This Agreement may be terminated 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) ________,
Central Time, on ________________________________________;
(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 a development involving a prospective Material Adverse Change, whether or
not arising in the ordinary course of business, which would, in your
reasonable judgment, materially impair the investment quality of the Shares,
(ii) any outbreak of hostilities or other national or international calamity
or crisis or change in economic or political conditions if the effect of such
outbreak, calamity, crisis or change on the financial markets of the United
States would, in your reasonable judgment, make the offering or delivery of
the Shares impracticable, (iii) general suspension of trading or general
trading halts in securities on the New York Stock Exchange, the American
Stock Exchange, the Nasdaq National Market or the over-the-counter market or
limitation on prices (other than limitations on hours or numbers of days or
trading) for securities on either such Exchange, the Nasdaq National Market
or the over-the-counter market, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order
of any court or other governmental authority which in your reasonable opinion
materially and adversely affects or will materially or adversely affect the
business, business prospects or operations of the Company, (v) declaration of
a banking moratorium by either federal or state authorities, or (vi) the
taking of any action by any federal, state or local government 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 10 of this Agreement.
13. SUCCESSORS. This Agreement has been and is made solely for the
benefit of the Underwriters, 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.
14. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants of the Company 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 the Underwriters or controlling
person or (c) delivery of any 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 Arkansas, without giving effect to the choice
of law or conflict of law principles thereof.
If the foregoing 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,
GENMAR HOLDINGS, INC.
By:_____________________________________
Its:____________________________________
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
XXXXXXXX INC.
U.S. BANCORP XXXXX XXXXXXX INC.
as Representatives of the several Underwriters
named in Schedule I hereto
By: XXXXXXXX INC.
By: ___________________________
Authorized Officer
SCHEDULE I
Name No. of Underwritten Shares
---- --------------------------
Xxxxxxxx Inc.
U.S. Bancorp Xxxxx Xxxxxxx Inc.
[list additional Underwriters]
Total
-----
SCHEDULE II
List of Subsidiaries
--------------------