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EXHIBIT 1.1
Tropical Sportswear Int'l Corporation
4,000,000 Shares(1)
Common Stock
FORM OF UNDERWRITING AGREEMENT
October ___, 1997
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXXXX & CO., INC.
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Tropical Sportswear Int'l Corporation, a Florida corporation (the
"Company"), and the selling securityholders set forth on Schedule 2 hereto (the
"Selling Securityholders") hereby confirm their agreement with the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom you have
been duly authorized to act as representatives (in such capacity, the
"Representatives"), as set forth below.
1. Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the several Underwriters an aggregate
of 1,600,000 shares of the Company's Common Stock, par value $.01 per share
("Common Stock"), and the Selling Securityholders propose to sell to the several
Underwriters an aggregate of 2,400,000 shares of Common Stock; any and all of
such shares of Common Stock are hereinafter referred to as the "Firm
Securities." The Selling Securityholders also propose to sell to the several
Underwriters not more than 600,000 additional shares of Common Stock if
requested by the Representatives as provided in Section 3 of this Agreement. Any
and all shares of Common Stock to be purchased by the Underwriters
(1) Plus an option to purchase from the Selling Securityholders up to
600,000 additional shares to cover over-allotments.
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pursuant to such option are referred to herein as the "Option Securities," and
the Firm Securities and any Option Securities are collectively referred to
herein as the "Securities."
2. Representations and Warranties of the Company and the Selling
Securityholders.
The Company represents and warrants to, and agrees with, each of the
several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-33729)
with respect to the Securities, including a prospectus subject to completion,
has been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement may have been so filed. After
the execution of this Agreement, the Company will file with the Commission
either (i) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (A) if the
Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined)
relating to the Securities, that shall identify the Preliminary Prospectus (as
hereinafter defined) that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the
Company does not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representatives prior
to the execution of this Agreement, or (ii) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the Act, an amendment to such registration statement, including
a form of prospectus, a copy of which amendment has been furnished to and
approved by the Representatives prior to the execution of this Agreement. The
Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Securities, which registration shall be effective upon filing with
the Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and included
in the Prospectus (as hereinafter defined); the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement or any amendment
thereto (including the prospectus subject to
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completion, if any, included in the Registration Statement or any amendment
thereto at the time it was or is declared effective); the term "Prospectus"
means:
(A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act,
the prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and
if no prospectus is required to be filed pursuant to Rule 424(b) under
the Act, the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. When any Preliminary Prospectus
was filed with the Commission it (i) contained all statements required to be
stated therein in accordance with, and complied in all material respects with
the requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto was or is
declared effective, it (i) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (ii) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the Prospectus or
any Term Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or supplement is not required to be
so filed, when the Registration Statement or the amendment thereto containing
such amendment or supplement to the Prospectus was or is declared effective) and
on the Firm Closing Date and any Option Closing Date (both as hereinafter
defined), the Prospectus, as amended or supplemented at any such time, (i)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing
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provisions of this paragraph (b) do not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with and
that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt and (ii) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in compliance with Rule
111 promulgated under the Act or the Commission has received payment of such
filing fee.
(d) The Company has been incorporated and its status is active
under the laws of the State of Florida. The Company was organized under the
Florida Business Corporation Act ("FBCA"). The Company is duly qualified to
transact business as a foreign corporation and is in good standing under the
laws of all other jurisdictions where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified would not result in a material adverse change in the
condition (financial or otherwise), management, business prospects, net worth,
or results of operations of the Company and its subsidiaries, taken as a whole
("Material Adverse Effect").
(e) The Company has full corporate power to own or lease its
properties and conduct its business as described in the Registration Statement
and the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and the Company has full corporate power to enter into
this Agreement and to carry out all the terms and provisions hereof to be
carried out by it.
(f) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus. All of the issued and
outstanding shares of capital stock of the Company as set forth therein have
been duly authorized and validly issued and are fully paid and nonassessable.
The Firm Securities have been duly authorized and at the Firm Closing Date,
after payment therefor in accordance herewith, will be validly issued, fully
paid and nonassessable. No holders of outstanding shares of capital stock of the
Company are entitled as such to any preemptive or other rights to subscribe for
any of the Securities, and no holder of securities of the Company has any right
which has not been fully exercised or waived to require the Company to register
the offer or sale of any securities owned by such holder under the Act in the
public offering contemplated by this Agreement.
(g) The capital stock of the Company conforms to the
description thereof contained under the heading "Description of Capital Stock"
in the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus.
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(h) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no outstanding (A) securities or obligations of the Company convertible into
or exchangeable for any capital stock of the Company, (B) warrants, rights or
options to subscribe for or purchase from the Company any such capital stock or
any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(i) The consolidated financial statements and schedule of the
Company included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) fairly
present the financial position of the Company and the results of operations and
changes in financial condition as of the respective dates or for the respective
periods therein specified. Such financial statements and schedule have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption "Selected
Consolidated Financial Data" in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present, on the basis
stated in the Prospectus (or such Preliminary Prospectus), the information
included therein.
(j) Ernst & Young LLP, who have certified certain financial
statements of the Company and delivered their report with respect to the audited
consolidated financial statements and schedule included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), are independent public accountants as
required by the Act and the applicable rules and regulations thereunder.
(k) The execution and delivery of this Agreement have been
duly authorized by the Company, and this Agreement has been duly executed and
delivered by the Company, and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms except that the
validity, binding effect and enforceability of this Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium, or similar laws generally
affecting the rights of creditors and by general principals of equity, or the
availability of specific performance, injunctive relief, and other equitable
remedies, and except insofar as the indemnification and contribution obligations
hereof may be limited by applicable law.
(l) No legal or governmental proceedings are pending to which
the Company is a party or to which the property of the Company is subject that
are required to be described in the Registration Statement or the Prospectus and
are not described therein (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus), and, to the Company's knowledge, no such
proceedings have been threatened against the Company or with respect to any of
its properties; and no contract or other document is required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) or filed as required.
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(m) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws or to clear the offering and the underwriting
arrangements with the National Association of Securities Dealers, Inc. ("NASD")
and, if the registration statement filed with respect to the Securities (as
amended) is not effective under the Act as of the time of execution hereof,
such as may be required (and shall be obtained as provided in this Agreement)
under the Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or (ii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, lease or other agreement or instrument to
which the Company is a party or by which the Company or any of its properties
is bound, or the charter documents or by-laws of the Company, or any statute or
any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Company, except
where such conflict, breach, violation or default would not have a Material
Adverse Effect.
(n) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus, the Company has not
sustained any material loss or interference with its business or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental proceeding and
there has not been any material adverse change, or, to the Company's knowledge,
any development involving a prospective material adverse change, in the
condition (financial or otherwise), management, business prospects, net worth,
or results of the operations of the Company, except in each case as described in
or contemplated by the Prospectus or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus.
(o) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of, the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company (except for
the sale of Securities by the Company and the Selling Securityholders under this
Agreement).
(p) The Company has not distributed and, prior to the later of
(i) the Firm Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any, permitted by the Act.
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(q) The Company has good and marketable title to all property
(real and personal) owned by it, in each case free and clear of any security
interests, liens, encumbrances, equities, claims and other defects, except as
described in the Prospectus or such as do not materially and adversely affect
the value of such property and do not interfere with the use made or proposed to
be made of such property by the Company, and any real property and buildings
held under lease by the Company are held under valid, subsisting and enforceable
leases, except that the validity, binding effect and enforceability of any such
lease may be limited by bankruptcy, insolvency, reorganization, moratorium, or
similar laws generally affecting the rights of creditors and by general
principals of equity, or the availability of specific performance, injunctive
relief, and other equitable remedies, and with such exceptions as are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company, in each case except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(r) No labor dispute with the employees of the Company or with
the employees of any of the Company's contract manufacturers exists or is
threatened or imminent that could result in a material adverse change in the
condition (financial or otherwise), business prospects, net worth or results of
operations of the Company and its subsidiaries, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(s) The Company owns, possesses, or has the right to use, or
can acquire ownership, possession or the right to use on reasonable terms, all
material patents, patent applications, trademarks, service marks, trade names,
licenses, copyrights and proprietary or other confidential information currently
employed by it in connection with its business, and the Company has not received
any notice of infringement of or conflict with asserted rights of any third
party with respect to any of the foregoing which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company, in each case
except as described in or contemplated by the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus).
(t) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the business in which it is engaged; the Company has not been
refused any insurance coverage sought or applied for; and the Company has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company, except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
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(u) The Company possesses all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business (except in any case in which the
absence of any of the foregoing would not have a Material Adverse Effect), and
the Company has not received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Company, in each case except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(v) The Company will conduct its operations in a manner that
will not subject it to registration as an investment company under the
Investment Company Act of 1940, as amended, and this transaction will not cause
the Company to become an investment company subject to registration under such
Act.
(w) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed by it or has requested
extensions thereof (except in any case in which the failure so to file would not
have a material adverse effect on the Company) and has paid all taxes, tariffs
and duties required to be paid by it and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(x) The Company is not in violation of any federal, state or
foreign law or regulation relating to occupational safety and health or to the
storage, handling or transportation of hazardous or toxic materials and the
Company has received all permits, licenses or other approvals required under
applicable federal, state or foreign occupational safety and health and
environmental laws and regulations to conduct its business, and the Company is
in compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Company, and except as described in or contemplated by the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(z) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters pursuant to
Section 7(f) hereof shall be deemed to be a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
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(aa) The Company is not in default under and, to the Company's
knowledge no other party is in default under, any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Company is a party or
by which the Company or any of its property is bound and no event has occurred
that, upon notice or lapse of time or both, would constitute a default by the
Company under any such instrument or agreement, which default would have a
Material Adverse Effect.
Each Selling Securityholder represents and warrants to, and agrees
with, each of the several Underwriters that:
(a) Such Selling Securityholder has full corporate power to
enter into this Agreement and to sell, assign, transfer and deliver to the
Underwriters the Securities to be sold by such Selling Securityholder hereunder
in accordance with the terms of this Agreement; the execution and delivery of
this Agreement has been duly authorized by all necessary corporate action of
such Selling Securityholder; and this Agreement has been duly executed and
delivered by such Selling Securityholder.
(b) Such Selling Securityholder has duly executed and
delivered a power of attorney and custody agreement (with respect to such
Selling Securityholder, the "Power-of-Attorney" and the "Custody Agreement",
respectively), each in the form heretofore delivered to the Representatives,
appointing [insert name of attorney-in-fact] as such Selling Securityholder's
attorney-in-fact (the "Attorney-in-Fact") with authority to execute, deliver
and perform this Agreement on behalf of such Selling Securityholder and
appointing Company, as custodian thereunder (the "Custodian"). Certificates in
negotiable form, endorsed in blank or accompanied by blank stock powers duly
executed, with signatures appropriately guaranteed, representing the Securities
to be sold by such Selling Securityholder hereunder have been deposited with
the Custodian pursuant to the Custody Agreement for the purpose of delivery
pursuant to this Agreement. Such Selling Securityholder has full power
(corporate and other) to enter into the Custody Agreement and the
Power-of-Attorney and to perform its obligations under the Custody Agreement.
The execution and delivery of the Custody Agreement and the Power-of-Attorney
have been duly authorized by all necessary corporate action of such Selling
Securityholder; the Custody Agreement and the Power-of-Attorney have been duly
executed and delivered by such Selling Securityholder and, assuming due
authorization, execution and delivery by the Custodian, are the legal, valid,
binding and enforceable instruments of such Selling Securityholder except that
the validity, binding effect and enforceability of this Custody Agreement and
Power of Attorney may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws generally affecting the rights of creditors and by
general principals of equity, or the availability of specific performance,
injunctive relief, and other equitable remedies, and except insofar as the
indemnification and contribution obligations hereof may be limited by
applicable law. Such Selling Securityholder agrees that each of the Securities
represented by the certificates on deposit with the Custodian is subject to the
interests of the Underwriters hereunder, that the arrangements made for such
custody, the appointment of the Attorney-in-Fact and the right, power and
authority of the Attorney-in-Fact to execute and deliver this Agreement, to
agree on the price at which the Securities (including such Selling
Securityholder's Securities) are to be sold to the Underwriters, and to carry
out the terms of this Agreement, are to that extent irrevocable and that the
obligations of such Selling Securityholder hereunder shall not be terminated,
except as provided in this Agreement or the Custody Agreement, by any act of
such Selling Securityholder, by operation of law or otherwise,
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or in the case of a corporate or partnership Selling Securityholder by its
liquidation or dissolution or by the occurrence of any other event. If any
corporate or partnership Selling Securityholder shall liquidate or dissolve, or
if any other event should occur, before the delivery of such Securities
hereunder, the certificates for such Securities deposited with the Custodian
shall be delivered by the Custodian in accordance with the respective terms and
conditions of this Agreement as if such liquidation or dissolution or other
event had not occurred, regardless of whether or not the Custodian or the
Attorney-in-Fact shall have received notice thereof.
(c) Such Selling Securityholder is the lawful owner of the
Securities to be sold by such Selling Securityholder hereunder and upon sale and
delivery of, and payment for, such Securities, as provided herein, such Selling
Securityholder will convey good and valid title to such Securities, free and
clear of any security interests, liens, encumbrances, equities, claims or other
defects.
(d) Such Selling Securityholder has not, directly or
indirectly, (i) taken any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company (except for the sale of Securities by the
Selling Securityholders under this Agreement).
(e) To the extent that any statements or omissions are made in
the Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by such Selling Securityholder specifically
for use therein, such Preliminary Prospectus did, and the Registration Statement
and the Prospectus and any amendments or supplements thereto, when they become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act and the respective rules
and regulations of the Commission thereunder and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading. Such Selling
Securityholder has reviewed the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and the Registration
Statement, and the information regarding such Selling Securityholder set forth
therein under the caption "Principal and Selling Shareholders" is complete and
accurate.
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(f) The sale by such Selling Securityholder of Securities
pursuant hereto is not prompted by any adverse information concerning the
Company that is not set forth in the Registration Statement or the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(g) The sale of the Securities to the Underwriters by such
Selling Securityholder pursuant to this Agreement, the compliance by such
Selling Securityholder with the other provisions of this Agreement, the Custody
Agreement and the consummation of the other transactions herein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws or to
clear the offering and the underwriting arrangements with the NASD and, if the
registration statement filed with respect to the Securities (as amended) is not
effective under the Act as of the time of execution hereof, such as may be
required (and shall be obtained as provided in this Agreement) under the Act or
the Exchange Act, or (ii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which such
Selling Securityholder or any of its subsidiaries is a party or by which such
Selling Securityholder or any of its subsidiaries or any of their respective
properties are bound, or the charter documents or by-laws of such Selling
Securityholder or any of its subsidiaries or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental authority
or any arbitrator applicable to such Selling Securityholder or any of its
subsidiaries.
(h) Such Selling Securityholder has reviewed the Registration Statement
and nothing has come to the attention of such Selling Securityholder that has
caused such Selling Securityholder to believe that (i) when the Registration
Statement or any amendment thereto was or is declared effective, it included or
will include any untrue statement of a material fact or omitted or will omit to
state any material fact necessary to make the statements therein not misleading;
or (ii) when the Prospectus or any amendment or supplement thereto is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus or such amendment
or supplement is not required to be so filed, when the Registration Statement or
the amendment thereto containing such amendment or supplement to the Prospectus
was or is declared effective), on the date when the Prospectus is otherwise
amended or supplemented and on the Firm Closing Date, the Prospectus, as amended
or supplemented at any such time, included or will include any untrue statement
of a material fact or omitted or will omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The foregoing provisions of this paragraph
(h) do not apply to statements or omissions made in the Registration Statement
or any amendment thereto or the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives specifically for use
therein.
(i) The Selling Securityholders have not distributed and, prior to the
later of (i) the Firm Closing Date and (ii) the completion of the distribution
of the securities, will
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not distribute any offering material in connection with the offering and sale of
the securities other than the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or other materials, if any, permitted by the Act.
3. Purchase, Sale and Delivery of the Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell and the
Selling Securityholders agree to sell to each of the Underwriters, and each of
the Underwriters, severally and not jointly, agrees to purchase from the Company
and the Selling Securityholders, at a purchase price of $________ per share, the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule 1 hereto. One or more certificates in definitive form for the Firm
Securities that the several Underwriters have agreed to purchase hereunder, and
in such denomination or denominations and registered in such name or names as
the Representatives request upon notice to the Company and the Selling
Securityholders at least 48 hours prior to the Firm Closing Date, shall be
delivered by or on behalf of the Company and the Selling Securityholders to the
Representatives for the respective accounts of the Underwriters, against payment
by or on behalf of the Underwriters of the purchase price therefor by wire
transfer in same-day funds (the "Wired Funds") to the account of the Company and
the Custodian. Such delivery of and payment for the Firm Securities shall be
made at the offices of Xxxxxx & Bird LLP, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000-0000 at 9:30 A.M., New York time, on October __, 1997, or at such
other place, time or date as the Representatives and the Company may agree upon
or as the Representatives may determine pursuant to Section 9 hereof, such time
and date of delivery against payment being herein referred to as the "Firm
Closing Date." The Company and the Selling Securityholders will make such
certificate or certificates for the Firm Securities available for checking and
packaging by the Representatives at the offices in New York, New York of
Prudential Securities Incorporated at least 24 hours prior to the Firm Closing
Date.
(b) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as contemplated
by the Prospectus, the Selling Securityholders hereby grant to the several
Underwriters option to purchase, severally and not jointly, the Option
Securities. The purchase price to be paid for any Option Securities shall be the
same price per share as the price per share for the Firm Securities set forth
above in paragraph (a) of this Section 3, plus if the purchase and sale of any
Option Securities takes place after the Firm Closing Date and after the Firm
Securities are trading "ex-dividend", an amount equal to the dividends payable
on such Option Securities. The option granted hereby may be exercised as to all
or any part of the Option Securities from time to time within (thirty) days
after the date of the Prospectus (or, if such 30th day shall be a Saturday or
Sunday or a holiday, on the next business day thereafter when the New York Stock
Exchange is open for trading). The Underwriters
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shall not be under any obligation to purchase any of the Option Securities prior
to the exercise of such option. The Representatives may from time to time
exercise the option granted hereby by giving notice in writing or by telephone
(confirmed in writing) to the Custodian setting forth the aggregate number of
Option Securities as to which the several Underwriters are then exercising the
option and the date and time for delivery of and payment for such Option
Securities. Any such date of delivery shall be determined by the Representatives
but shall not be earlier than two business days or later than five business days
after such exercise of the option and, in any event, shall not be earlier than
the Firm Closing Date. The time and date set forth in such notice, or such other
time on such other date as the Representatives and the Selling Securityholders
may agree upon or as the Representatives may determine pursuant to Section 9
hereof, is herein called the "Option Closing Date" with respect to such Option
Securities. Upon exercise of the option as provided herein, the Selling
Securityholders shall become obligated to sell to each of the several
Underwriters that number of Option shares as is set forth opposite their name on
Schedule 2 hereto, as adjusted by the Representatives in such manner as they
deem advisable to avoid fractional shares, and, subject to the terms and
conditions herein set forth, each of the Underwriters (severally and not
jointly) shall become obligated to purchase from the Selling Securityholders,
the same percentage of the total number of the Option Securities as to which the
several Underwriters are then exercising the option as such Underwriter is
obligated to purchase of the aggregate number of Firm Securities, as adjusted by
the Representatives in such manner as they deem advisable to avoid fractional
shares; provided, however, unless and until all of the Option Securities to be
sold by Shakale Internacional, S.A. have been purchased by the Underwriters
pursuant to this Section 3(b), no Option Securities shall be purchased from
Accel, S.A. de C.V. by the Underwriters pursuant to this Section 3(b). If the
option is exercised as to all or any portion of the Option Securities, one or
more certificates in definitive form for such Option Securities, and payment
therefor, shall be delivered on the related Option Closing Date in the manner,
and upon the terms and conditions, set forth in paragraph (a) of this Section 3,
except that reference therein to the Firm Securities and the Firm Closing Date
shall be deemed, for purposes of this paragraph (b), to refer to such Option
Securities and Option Closing Date, respectively.
(c) The Company and the Selling Securityholders hereby
acknowledge that the wire transfer by or on behalf of the Underwriters of the
purchase price for any Securities does not constitute closing of a purchase and
sale of the Securities. Only execution and delivery of a receipt for Securities
by the Underwriters indicates completion of the closing of a purchase of the
Securities from the Company and the Selling Securityholders. Furthermore, in the
event that the Underwriters wire funds to the Company and the Custodian prior to
the completion of the closing of a purchase of Securities, the Company and the
Selling Securityholders hereby acknowledge that until the Underwriters execute
and deliver a receipt for the Securities, by facsimile or otherwise, the Company
and the Custodian will not be entitled to the Wired Funds and shall return the
Wired Funds to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of
Securities is not completed and the Wired Funds are not returned by the Company
and the
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Custodian to the Underwriters on the same day the Wired Funds were received by
the Company and the Custodian, the Company and the Selling Securityholders agree
to pay to the Underwriters in respect of each day the Wired Funds are not
returned by them, in same-day funds, interest on the amount of such Wired Funds
in an amount representing the Underwriters' cost of financing as reasonably
determined by Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as
one of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company and the Selling Securityholders.
The Company covenants and agrees with each of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term Sheet
that constitutes a part thereof and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a Prospectus relating to the
Securities is required to be delivered under the Act, the Company (i) will
comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the Prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement of which the
Representatives previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which filing
the Representatives shall not have given their consent. The Company will prepare
and file with the Commission, in accordance with the rules and regulations of
the Commission, promptly upon request by the Representatives or counsel for the
Underwriters, any amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary or advisable in connection
with the distribution of the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to the Registration Statement
to be declared effective by the Commission as promptly as possible. The Company
will advise the Representatives,
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promptly after receiving notice thereof, of the time when the Registration
Statement or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and will
provide evidence satisfactory to the Representatives of each such filing or
effectiveness.
(b) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of (i) the issuance by
the Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will cooperate with the Representatives and
Counsel to the Underwriters in qualifying or registering the Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
the Representatives may designate and will continue such qualifications or
registrations in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date
when a Prospectus relating to the Securities is required to be delivered under
the Act or (ii) the Option Closing Date, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is necessary at
any time to amend or supplement the Prospectus to comply with the Act or the
rules or regulations of the Commission thereunder, the Company will promptly
notify the Representatives thereof and, subject to Section 5(a) hereof, will
prepare and file with the Commission, at the Company's expense, an amendment to
the Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b)
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Registration Statement and each amendment thereto (in each case without exhibits
thereto) and (iii) so long as a Prospectus relating to the Securities is
required to be delivered under the Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request; without limiting the application of
clause (iii) of this sentence, the Company, not later than (A) 6:00 PM, New York
City time, on the date of determination of the public offering price, if such
determination occurred at or prior to 10:00 A.M., New York City time, on such
date or (B) 2:00 PM, New York City time, on the business day following the date
of determination of the public offering price, if such determination occurred
after 10:00 A.M., New York City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the Prospectus and any amendment
or supplement thereto as the Representatives may reasonably request for purposes
of confirming orders that are expected to settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives a consolidated
earnings statement of the Company and its subsidiaries that satisfies the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus and shall
report the use of such proceeds in accordance with Rule 463 under the Act.
(h) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise dispose or transfer (or announce any offer,
sale, offer of sale, contract of sale, pledge, grant of any option to purchase
or other disposition or transfer) of any shares of Common Stock or any
securities convertible into, or exchangeable or exercisable for, shares of
Common Stock for a period of 180 days after the date hereof, except pursuant to
this Agreement and except for issuances pursuant to the exercise of employee
stock options or grants of stock options by the Company each as described in
the Prospectus.
(i) The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company (except for the sale of Securities by the Company and the Selling
Securityholders under this Agreement).
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(j) The Company will obtain the agreements described in
Section 7(h) hereof prior to the Firm Closing Date.
(k) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus), the Company will, after notice from you advising
the Company to the effect set forth above, forthwith prepare, consult with you
concerning the substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting on such
rumor, publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern time on
the date of this Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b)(2).
(m) The Company will cause the Securities to be duly included
for quotation on the Nasdaq Stock Market's National Market (the "Nasdaq National
Market") prior to the Firm Closing Date. The Company will ensure that the
Securities remain included for quotation on the Nasdaq National Market following
the Firm Closing Date.
Each Selling Securityholder covenants and agrees with each of the
Underwriters that:
(a) Each Selling Securityholder will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise dispose or
transfer(or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other disposition or transfer) of any
Securities legally or beneficially owned by such Selling Securityholder or any
securities convertible into, or exchangeable or exercisable for, Securities for
a period of 180 days after the date hereof.
(b) Each Selling Securityholder will not, directly or
indirectly, (i) take any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or (ii) (A) sell, bid for,
purchase, or pay anyone any compensation for soliciting purchases of, the
Securities or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company (except for
the sale of Securities by the Company and the Selling Securityholders under this
Agreement).
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6. Expenses. The Company will pay all costs and expenses incident to
the performance of the obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters relating thereto, (vi) the filing fees of the Commission and the
National Association of Securities Dealers, Inc. relating to the Securities,
(vii) any quotation of the Securities on the Nasdaq National Market, (viii) any
meetings with prospective investors in the Securities (other than as shall have
been specifically approved by the Representatives to be paid for by the
Underwriters), and (ix) advertising relating to the offering of the Securities
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters). The Selling Securityholders have agreed with
the Company to reimburse the Company for a portion of such expenses. The fees
and expenses of legal counsel engaged to represent the Selling Securityholders
shall be borne by such Selling Securityholders. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 7 hereof (other than Section 7(d)) is
not satisfied, because this Agreement is terminated pursuant to Section 11
hereof or because of any failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including counsel fees and disbursements) that
shall have been incurred by them in connection with the proposed purchase and
sale of the Securities. The Company shall not in any event be liable to any of
the Underwriters for the loss of anticipated profits from the transactions
covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company and the Selling Securityholders
contained herein as of the date hereof and as of the Firm Closing Date, as if
made on and as of the Firm Closing Date, to the accuracy of the statements of
the Company's officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Securityholders of their covenants
and agreements hereunder and to the following additional conditions:
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(a) If the Original Registration Statement or any amendment
thereto filed prior to the Firm Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have been declared effective not later than
the earlier of (i) 11:00 A.M., New York time, on the date on which the amendment
to the registration statement originally filed with respect to the Securities or
to the Registration Statement, as the case may be, containing information
regarding the initial public offering price of the Securities has been filed
with the Commission and (ii) the time confirmations are sent or given as
specified by Rule 462(b)(2), or with respect to the Original Registration
Statement, or such later time and date as shall have been consented to by the
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rules
434 and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxxx & Xxxxxxx, counsel for the Company, to the
effect that:
(i) the Company has been duly incorporated and its status is
active under the laws of the State of Florida. The Company was
organized under the FBCA. The Company is duly registered or qualified
to transact business as foreign corporation and in good standing under
the laws of all other jurisdictions where the ownership or leasing of
its properties or the conduct of its business requires such
qualification, except where the failure to be so registered or
qualified would not have a Material Adverse Effect;
(ii) the Company has corporate power to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus, and the Company has corporate power to
enter into this Agreement and to carry out all the terms and provisions
hereof to be carried out by it;
(iii) the Company has an authorized, issued and outstanding
capitalization as set forth under the heading "Description of Capital
Stock" in the Prospectus; all of the issued shares of capital stock of
the Company immediately before the Company's issuance and sale of the
Firm Securities have been duly authorized and validly issued and are
fully paid and nonassessable, were
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originally issued in compliance with all applicable federal and state
securities laws (or any actions thereunder are effectively barred by
effective waivers or statutes of limitation or similar laws) and were
not issued in violation of and are not subject to any preemptive rights
or other rights known to such counsel to subscribe for or purchase
securities; the Firm Securities to be sold by the Company have been
duly authorized by all necessary corporate action of the Company and,
when issued and delivered to and paid for by the Underwriters pursuant
to and in accordance with this Agreement, will be validly issued, fully
paid and nonassessable; the Securities have been [duly] included for
trading on the Nasdaq National Market; no holders of outstanding shares
of capital stock of the Company are entitled as such to any statutory
preemptive rights or other rights known to such counsel to subscribe
for any of the Securities; and no holders of securities of the Company
are entitled to have such securities registered under the Registration
Statement;
(iv) the statements set forth under the heading "Description
of Capital Stock" in the Prospectus, insofar as such statements purport
to summarize certain provisions of the capital stock of the Company,
provide a fair summary of such provisions; and the statements set forth
under the headings "Business -- Imports and Import Regulations,"
["Business -- Trademarks and Licenses,"] "Business -- Legal
Proceedings," "Risk Factors -- Dependence on Intellectual Property;
Risk of Infringement Claims," and "Risk Factors -- Imports and Import
Restrictions." in the Prospectus, insofar as such statements constitute
a summary of the legal matters, documents or proceedings referred to
therein, provide a fair summary of such legal matters, documents and
proceedings;
(v) the execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of the Company and
this Agreement has been duly executed and delivered by the Company;
(vi) (A) to such counsel's knowledge, no legal or governmental
proceedings are pending to which the Company is a party or to which the
property of the Company is subject that are required to be described in
the Registration Statement or the Prospectus and are not described
therein, and no such proceedings have been threatened against the
Company or with respect to any of its properties and (B) to such
counsel's knowledge, no contract or other document is required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement that is not described
therein or filed as required;
(vii) the execution and performance of this Agreement by the
Company and the compliance by the Company with the other provisions of
this Agreement do not (A) require the consent, approval, authorization,
registration or qualification of or with any governmental authority,
except such as have been
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obtained and such as may be required under state securities or blue sky
laws or to clear the underwriting arrangements with the NASD, or (B)
conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (1) any material
indenture, mortgage, deed of trust, lease or other agreement or
instrument, known to such counsel, to which the Company is a party or
by which the Company or any of its properties are bound and which is
filed as an exhibit to the Registration Statement, (2) the charter
documents or by-laws of the Company, (3) any statute under federal
or Florida law or (4) any judgment, decree, order, rule or regulation
of any court or other governmental authority or any arbitrator known to
such counsel and applicable to the Company, in each case except where
such conflict, breach, violation or default would not have a Material
Adverse Effect;
(viii) the Registration Statement is effective under the Act;
any required filing of the Prospectus, or any Term Sheet that
constitutes a part thereof, pursuant to Rules 434 and 424(b) has been
made in the manner and within the time period required by Rules 434 and
424(b); and, to such counsel's knowledge after due inquiry, no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto has been issued and no proceedings for that purpose
have been instituted or threatened or are contemplated by the
Commission;
(ix) the Registration Statement as amended by Amendment No. 1
and any amendment subsequent thereto, any Rule 462(b) Registration
Statement and the Prospectus (in each case, other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission thereunder; and
(x) if the Company elects to rely on Rule 434, the Prospectus
is not "materially different", as such term is used in Rule 434, from
the prospectus included in the Registration Statement at the time of
its effectiveness or an effective post-effective amendment thereto
(including such information that is permitted to be omitted pursuant to
Rule 430A).
Such counsel shall also state that no facts have come to the attention
of such counsel that lead it to believe that the Registration Statement, as of
its effective date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus, as of its date or
the date of such opinion, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
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In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. Further, in rendering the opinions
referred to in Section (b)(iv), such counsel may rely, to the extent such
counsel deems proper, on the opinion of other counsel to the Company.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received the opinion of
Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the Selling Securityholders,
dated the Firm Closing Date, to the effect that:
(i) the delivery, for purposes of sale hereunder, by each
Selling Securityholder to the several Underwriters of certificates for the
Securities being so sold hereunder, against payment therefor as provided herein,
and assuming that such certificates are free of any legend, notation or other
notice of any Adverse Claim (as defined in the Uniform Commercial Code of the
state in which the Securities are delivered) and that such Underwriters are bona
fide purchasers under such Uniform Commercial Code, will convey ownership of the
Securities evidenced by such certificates, free and clear of all such Adverse
Claims;
(ii) the sale of the Securities to the Underwriters by each
Selling Securityholder pursuant to this Agreement, the compliance by each
Selling Securityholder with the other provisions of this Agreement and the
Custody Agreement, and consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any federal, state or local
governmental authority of the United States except such as have been obtained,
such as may be required under state securities or blue sky laws or to clear the
offering and the underwriting arrangements with the NASD and, if the
registration statement filed with respect to the Securities (as amended) is not
effective under the Act as of the time of execution hereof, such as may be
required (and shall be obtained as provided in this Agreement) under the Act or
the Exchange Act, or (ii) materially conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default under
any federal, state or local statute in the United States or any judgment,
decree, order, rule or regulation applicable to such Securityholder of any
court, arbitrator or other governmental authority of or in any jurisdiction in
the United States and which is known to such counsel.
[(iii) each selling Securityholder has full corporate power to
enter into this Agreement, the Custody Agreement and the Power-of-Attorney and
to sell, transfer and deliver the Securities being sold by such Selling
Securityholder hereunder and to perform its obligations under the Custody
Agreement; the execution and delivery of this Agreement, the Custody Agreement
and the Power-of-Attorney have been duly authorized by all necessary corporate
action of each Selling Securityholder; this Agreement, the Custody Agreement and
the Power-of-Attorney have been duly executed and delivered by each Selling
Securityholder; and the Power of Attorney and the Custody Agreement, in the case
of the latter assuming due authorization, execution and delivery by the
Custodian, are the legal, valid, binding and enforceable instruments of each
Selling
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Securityholder, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law);]
[(iv) the sale of the Securities to the Underwriters by each
Selling Securityholder pursuant to this Agreement, the compliance by each
Selling Securityholder with the other provisions of this Agreement and the
Custody Agreement, and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority of the
Selling Securityholders' jurisdictions of incorporation except such as have been
obtained, or (ii) materially conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under (A) any
indenture, mortgage, deed of trust or lease, or other material agreement or
instrument known to such counsel, to which a Selling Securityholder is a party
or by which a Selling Securityholder or any of its respective properties are
known by such counsel to be bound, (B) the charter documents or by-laws of a
Selling Securityholder or (C) any statute of the jurisdiction of incorporation
or any judgment, decree, order, rule or regulation applicable to a
Securityholder of any court, arbitrator or other governmental authority of or in
the respective jurisdictions of incorporation and which is known to such
counsel.]
In rendering such opinions referred to in Section
(c), counsel may rely, as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the
Company and public officials and on Statements in the Registration
Statement and Prospectus. [Further, in rendering the opinions referred
to in Sections (c)(iii) and (iv), such counsel may rely, to the extent
such counsel deems proper, on the opinions of counsel for Accel S.A. de
C.V. and counsel for Shakale Internacional S.A.]
References to the Registration Statement and the
Prospectus in this paragraph shall include any amendment or supplement
thereto at the date of such opinions.
(i)
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(d) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxxxx & Bird LLP, counsel for the Underwriters, with
respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(e) The Representatives shall have received from Ernst & Young
LLP a letter or letters dated, respectively, the date hereof and the Firm
Closing Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) they are independent accountants with respect to the
Company within the meaning of the Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules examined by them and included in the
Registration Statement and the Prospectus comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations;
(iii) on the basis of a reading of the latest available
interim unaudited consolidated financial statements of the Company,
carrying out certain specified procedures (which do not constitute an
examination made in accordance with generally accepted auditing
standards and that would not necessarily reveal
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matters of significance with respect to the comments set forth in this
paragraph (iii)), a reading of the minute books of the shareholders,
the board of directors and any committees thereof of the Company, and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters, nothing came to their attention
that caused them to believe that:
(A) the unaudited consolidated financial statements
of the Company included in the Registration Statement and the
Prospectus do not comply in form in all material respects with
the applicable accounting requirements of the Act and the
related published rules and regulations thereunder or are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited consolidated financial statements included in the
Registration Statement and the Prospectus;
(B) at a specific date not more than five business
days prior to the date of such letter, there were any changes
in the capital stock or long-term debt of the Company or any
decreases in net current assets or stockholders' equity of the
Company, in each case compared with amounts shown on the
latest audited consolidated balance sheet included in the
Registration Statement and the Prospectus, or for the period
from June 29, 1997 to such specified date there were any
decreases, as compared with the comparable period in the prior
Fiscal Year, in net sales, cost of goods sold, net income
(loss) before income taxes or total or per share amounts of
net income (loss) of the Company, except in all instances for
changes, decreases or increases set forth in such letter; and
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting
records of the Company and are included in the Registration Statement
and the Prospectus under the captions "Prospectus Summary," "Risk
Factors," "Use of Proceeds," "Capitalization," "Dilution," "Business,"
"Management," "Principal and Selling Shareholders," "Certain
Transactions," and "Shares Eligible from Future Sale," and in Exhibit
11 to the Registration Statement, and have compared such amounts,
percentages and financial information with such records of the Company
and with information derived from such records and have found them to
be in agreement, excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and
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delivery of the Securities as contemplated by the Registration Statement, as
amended as of the date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (e) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(f) The Representatives shall have received a certificate,
dated the Firm Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of the Firm Closing
Date, does not include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented as of the
Firm Closing Date, does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Company has performed all covenants
and agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to
the best of the Company's knowledge, are contemplated by the
Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
the Company has not sustained any material loss or interference with
its business or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not been
any material adverse change, or, to his knowledge, any development
involving a prospective material adverse change, in the condition
(financial or otherwise), management, business prospects, net worth or
results of operations of the Company, except in each case as described
in or contemplated by the Prospectus (exclusive of any amendment or
supplement thereto).
(g) The Representatives shall have received a certificate from
each Selling Securityholder, signed by the principal executive officer and the
principal financial or accounting officer of such Selling Securityholder, dated
the Firm Closing Date, to the effect that:
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(i) the representations and warranties of such Selling
Securityholder in this Agreement are true and correct as if made on and
as of the Firm Closing Date;
(ii) Such Selling Securityholder, after a careful examination
of the Registration Statement does not know of an untrue statement of a
material fact included in the Registration Statement or the omission
from the Registration Statement of any material fact required to be
stated therein or necessary to make the statements therein not
misleading; and
(iii) such Selling Securityholder has performed all covenants
and agreements on its part to be performed or satisfied at or prior to
the Firm Closing Date.
(h) The Representatives shall have received from each person
who is a director or executive officer of the Company an agreement to the effect
that such person will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, pledge, grant any option to
purchase or otherwise dispose of or transfer (or announce any offer, sale, offer
of sale, contract of sale, pledge, grant of an option to purchase or other
disposition or transfer of) any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common Stock
beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) as
of the effectiveness of the mergers of Apparel International Group, Inc.,
Tropical Acquisition Corporation and Tropical Sportswear International
Corporation with and into Tropical Sportswear Int'l Corporation or thereafter
acquired for a period of 180 days subsequent to the date of the final Prospectus
filed with the Commission pursuant to Rule 424(b) of the Act promulgated by the
Commission or if no filing under Rule 424(b) is made, the date of the final
Prospectus included in the Registration Statement when declared effective under
the Act; provided, however, that such persons may transfer shares of Common
Stock to members of such person's family provided that such transferees deliver
an agreement to the foregoing effect to the Representatives.
(i) On or before the Firm Closing Date, the Representatives
and counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(j) Prior to the commencement of the offering of the
Securities, the Securities shall have been included for trading on the Nasdaq
National Market.
(k) Each Selling Securityholder shall have delivered to you on
or prior to the Firm Closing Date a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or statements
specified by Treasury Department regulations).
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All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
8. Indemnification and Contribution.
(a) The Company and each Selling Securityholder jointly and
severally agree to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Act against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person may
become subject under the Act or otherwise, such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
the Company or such Selling Securityholder in Section 2 of this
Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any
amendment thereto or any Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto or (B) any application or other
document, or any amendment or supplement thereto, executed by the
Company or such Selling Securityholder or based upon written
information furnished by or on behalf of the Company or such Selling
Securityholder filed in any jurisdiction in order to qualify the
Securities under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange
(each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or
any Application a material fact required to be stated therein or
necessary to make the statements therein not misleading or
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(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials used in
connection with the marketing of the Securities, including without
limitation, slides, videos, films, tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company and such
Selling Securityholder will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or any
Application in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein; and provided, further, that the Company will not
be liable to any Underwriter or any person controlling such Underwriter with
respect to any such untrue statement or omission made in any Preliminary
Prospectus that is corrected in the Prospectus (or any amendment or supplement
thereto) if the person asserting any such loss, claim, damage or liability
purchased Securities from such Underwriter but was not sent or given a copy of
the Prospectus (as amended or supplemented), other than the documents
incorporated by reference therein, at or prior to the written confirmation of
the sale of such Securities to such person in any case where such delivery of
the Prospectus (as amended or supplemented) is required by the Act, unless such
failure to deliver the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 5(a) and (d) of this Agreement. This
indemnity agreement will be in addition to any liability which the Company and
such Selling Securityholder may otherwise have. Neither the Company nor any
Selling Securityholder will, without the prior written consent of the
Underwriter or Underwriters purchasing, in the aggregate, more than fifty
percent (50%) of the Securities, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not any
such Underwriter or any person who controls any such Underwriter within the
meaning of Section 15 of the Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the
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Registration Statement, each Selling Securityholder and each person, if any, who
controls the Company or such Selling Securityholder within the meaning of
Section 15 of the Act against any losses, claims, damages or liabilities to
which the Company, any such director or officer of the Company, such Selling
Securityholder or any such controlling person of the Company or such Selling
Securityholder may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the Prospectus
or any amendment or supplement thereto, or any Application or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company, any such director, officer
or controlling person or such Selling Securityholder in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Representatives in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the
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employment of counsel for the indemnified party at the expense of the
indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section II (f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the
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same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
(e) The liability of each Selling Securityholder under this
Section 8 shall not exceed an amount equal to the net proceeds of the Securities
sold by such Selling Securityholder to the Underwriters.
9. Default of Underwriters. If one or more Underwriters default in
their obligations to purchase Firm Securities or Option Securities hereunder and
the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers, the
Selling Securityholders and the several Underwriters set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, any Selling
Securityholder, any Underwriter or any controlling person referred to in Section
8 hereof and (ii) delivery of and payment for the Securities.
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The respective agreements, covenants, indemnities and other statements set forth
in Sections 6 and 8 hereof shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect to
the Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company and the Selling Securityholders given
prior to the Firm Closing Date or the related Option Closing Date, respectively,
in the event that the Company or any of the Selling Securityholders shall have
failed, refused or been unable to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company shall have, in the sole judgment of the
Representatives, sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding or there shall have
been any material adverse change, or any development involving a
prospective material adverse change (including without limitation a
change in management or control of the Company), in the condition
(financial or otherwise), business prospects, net worth or results of
operations of the Company, except in each case as described in or
contemplated by the Prospectus (exclusive of any amendment or
supplement thereto);
(ii) trading in the Common Stock shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities
generally on the New York Stock Exchange or Nasdaq National Market
shall have been suspended or minimum or maximum prices shall have been
established on such exchange or market system;
(iii) a banking moratorium shall have been declared by New
York or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the U.S. financial markets that, in the
sole judgment of the Representatives, makes it impractical or
inadvisable to proceed with the public offering or the delivery of the
Securities as contemplated by the Registration Statement, as amended as
of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
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12. Information Supplied by Underwriters. The statements set forth in
the last paragraph on the front cover page and under the heading "Underwriting"
in any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 8 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail and telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Transactions Group; if sent to the Company, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to the Company at 0000
Xxxx Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxxx Xxxxx, with a
copy to Xxxx X. Xxxxxxx, Esq., Xxxxx & Xxxxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxx, Xxxxxxx 00000; and if sent to any of the Selling Securityholders,
shall be delivered to them at Winthrop, Stimson, Xxxxxx & Xxxxxxx, Xxx Xxxxxxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxx X. Xxxx.
14. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the several Underwriters, the Company, the Selling
Securityholders and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person except that (i) the indemnities of the Company and the Selling
Securityholders contained in Section 8 of this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Act and (ii) the indemnities of the Underwriters contained
in Section 8 of this Agreement shall also be for the benefit of the directors of
the Company, the officers of the Company who have signed the Registration
Statement, any person or persons who control the Company within the meaning of
Section 15 of the Act, the Selling Securityholders and any person or persons who
control the Selling Securityholders within the meaning of Section 15 of the Act.
No purchaser of Securities from any Underwriter shall be deemed a successor
because of such purchase.
15. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
16. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this
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Agreement, each Selling Securityholder accepts for itself and in connection with
its properties, generally and unconditionally, the nonexclusive jurisdiction of
the aforesaid courts and waives any defense of forum non conveniens and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. Each Selling Securityholder designates and appoints Xxxxxx
X. Xxxx, and such other persons as may hereafter be selected by each Selling
Securityholder irrevocably agreeing in writing to so serve, as its agent to
receive on its behalf service of all process in any such proceedings in any such
court, such service being hereby acknowledged by each Selling Securityholder to
be effective and binding service in every respect. A copy of any such process so
served shall be mailed by registered mail to each Selling Securityholder at its
address provided in Section 13 hereof; provided, however, that, unless otherwise
provided by applicable law, any failure to mail such copy shall not affect the
validity of service of such process. If any agent appointed by each Selling
Securityholder refuses to accept service, each Selling Securityholder hereby
agrees that service of process sufficient for personal jurisdiction in any
action against the Selling Securityholder in the State of New York may be made
by registered or certified mail, return receipt requested, to each Selling
Securityholder at its address provided in Section 13 hereof, and each Selling
Securityholder hereby acknowledges that such service shall be effective and
binding in every respect. Nothing herein shall affect the right to serve process
in any other manner permitted by law or shall limit the right of any Underwriter
to bring proceedings against each Selling Securityholder in the courts of any
other jurisdiction.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and each
of the several Underwriters.
Very truly yours,
TROPICAL SPORTSWEAR
INT'L CORPORATION
By
------------------------------
[Title]
THE SELLING SECURITYHOLDERS
By
------------------------------
Attorney-in-Fact
The foregoing Agreement is hereby
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confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
XXXXXXXXXXX & CO., INC.
By PRUDENTIAL SECURITIES INCORPORATED
By
------------------------------
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Representatives.
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SCHEDULE 1
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
----------- --------------
Prudential Securities Incorporated............................................
Xxxxxxxxxxx & Co., Inc........................................................
--------------
Total.......................................................................... 4,000,000
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SCHEDULE 2
SELLING SECURITYHOLDERS
Number of Firm Number of Option
Selling Securityholder Securities to be Purchased Securities to be Purchased
---------------------- -------------------------- --------------------------
Accel, S.A. de C.V. 650,000 100,450
Schakale Internacional, S.A. 1,750,000 499,550
--------- -------
2,400,000 600,000
========= =======
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