XXXXXXX CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
June ___, 1997
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXXX XXXX LLC
PAINEWEBBER INCORPORATED
As representatives of the several Underwriters
named in Schedule I hereto,
c/o The Xxxxxxxx-Xxxxxxxx Company, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Dear Sirs:
Xxxxxxx Corporation, a Delaware corporation (the "Company") proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
2,350,000 shares of common stock, $1.00 par value ("Common Stock"), of the
Company (the "Firm Shares"), and, at the election of the Underwriters, subject
to the terms and conditions stated herein, the Company proposes to sell to the
Underwriters up to 150,000 additional shares of Common Stock (the "Optional
Shares") (the Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are collectively called the "Shares"). In
your capacity as representatives of the several Underwriters, you are referred
to herein as the "Representatives."
1.(a) Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-3 (File No.
333-28011) with respect to the Shares, 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 (A)
if such registration statement, as it may have been amended, has
become effective under the Act and information has been omitted
therefrom in accordance with Rule 430A 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 or permitted by Rule 424(b) under the Act and as
have been provided to and approved by the Representatives, or (B) if
such registration statement, as it may have been amended, has not
become effective under the Act, an amendment to such registration
statement, including a form of prospectus, a copy of which amendment
has been provided to and approved by the Representatives prior to the
execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as
hereafter amended, including a registration statement filed pursuant
to Rule 462(b) and also including (i) all financial statement
schedules and exhibits thereto (ii) all documents incorporated by
reference therein filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and (iii) any information omitted
therefrom pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined); the term "Preliminary Prospectus"
means each prospectus subject to completion included in such
registration statement or any amendment (or post-effective amendment)
thereto (including the prospectus subject to completion, if any,
included in the Registration Statement at the time it was or is
declared effective), including all documents incorporated by reference
therein filed under the Exchange Act; and the term "Prospectus" means
the prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act or, if no prospectus is required to be so filed, such
term means the prospectus included in the Registration Statement in
either case, including all documents incorporated by reference therein
filed under the Exchange Act. Any reference in this Agreement to an
"amendment or supplement" to any Preliminary Prospectus or the
Prospectus or an "amendment" to any registration statement (including
the Registration Statement) shall be deemed to include any document
incorporated by reference therein and filed with the Commission under
the Exchange Act after the date of such Preliminary Prospectus,
Prospectus or Registration Statement, as the case may be. For purposes
of the preceding sentence, any reference to the "effective date" of an
amendment to a registration statement shall, if such amendment is
effected by means of the filing with the Commission under the Exchange
Act of a document incorporated by reference in such registration
statement, be deemed to refer to the date on which such document was
so filed with the Commission. As used herein, any reference to any
statement or information as being "made", "included", "contained",
"disclosed", or "set forth" in any Preliminary Prospectus, a
Prospectus or any amendment or supplement thereto, or the Registration
Statement or any amendment thereto (or other similar references) shall
refer both to information and statements actually appearing in such
document as well as information and statements incorporated by
reference therein. For purposes of the following representations and
warranties, to the extent reference is made to the Prospectus and at
the relevant time the Prospectus is not yet in existence, such
reference shall be deemed to be to the most recent Preliminary
Prospectus.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission or the
securities authority of any state or other jurisdiction. If the
Registration Statement has become effective under the Act, no stop
order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceeding for that purpose
has been instituted or threatened or, to the best knowledge of the
Company, contemplated by the Commission or the securities authority of
any state or other jurisdiction.
(iii) When any Preliminary Prospectus and any
amendment or supplement thereto was filed with the Commission it (A)
contained all statements required to be stated therein in accordance
with, and complied in all material respects with the requirements of,
the Act and the rules and regulations of the Commission thereunder and
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(B) did not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. When the Registration Statement or any amendment
thereto was or is declared effective, and at each Time of Delivery (as
hereinafter defined), it (A) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder and (B) did not
or will not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading. 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) and at each Time of Delivery, the Prospectus, as
amended or supplemented at any such time, (A) contained or will
contain all statements required to be stated therein in accordance
with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
foregoing provisions of this paragraph (iii) do not apply to
statements or omissions made in any Preliminary Prospectus and any
amendment or supplement thereto, 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 specifically for use
therein.
(iv) The descriptions in the Registration Statement
and the Prospectus of statutes, legal and governmental proceedings or
contracts and other documents are accurate and fairly present in all
material respects the information required to be shown; and there are
no statutes or legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus that are not
described as required and there are no contracts or documents of a
character that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described and filed as required.
(v) Each of the Company and its Material Subsidiaries
(as defined herein) has been duly incorporated, is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation and has full corporate power and authority to own or
lease its properties and conduct its business as described in the
Prospectus. The Company has full corporate power and authority to
enter into this Agreement and to perform its obligations hereunder.
The term "Material Subsidiaries" means Xxxxxxx Cable System, Inc.,
Xxxxxxx Electric Corporation, Xxxxxxxxx, Inc., Transpro Group, Inc.,
Emtec Products Corporation and Xxxxxx Wire & Cable Corp., which
represent all the subsidiaries of the Company which are material to
the business of the Company.
(vi) The Company's authorized, issued and outstanding
capital stock is as disclosed in the Prospectus. All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable
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and conform to the description of the Common Stock contained in the
Prospectus. None of the issued shares of capital stock of the Company
or any of its subsidiaries has been issued or is owned or held in
violation of any preemptive rights of shareholders, and no person or
entity (including any holder of outstanding shares of capital stock of
the Company or its subsidiaries) has any preemptive or other rights to
subscribe for any of the Company Firm Shares or the Optional Shares.
(vii) All of the issued shares of capital stock of
each of the Company's subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and are owned
beneficially by the Company and, except as set forth in Exhibit A
hereto, are free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, shareholders' agreements, voting
trusts, equities or claims of any nature whatsoever. Other than the
subsidiaries listed on Exhibit A hereto (which are herein referred to
as the "subsidiaries"), the Company does not own, directly or
indirectly, any capital stock or other equity securities of any other
corporation or any partnership interest in any partnership, joint
venture or other association other than as disclosed in the
Prospectus.
(viii) Except as disclosed in the Prospectus, there
are no outstanding (A) securities or obligations of the Company or any
of its subsidiaries convertible into or exchangeable for any capital
stock of the Company or any such subsidiary, (B) warrants, rights or
options to subscribe for or purchase from the Company or any such
subsidiary any such capital stock or any such convertible or
exchangeable securities or obligations, or (C) obligations of the
Company or any such subsidiary to issue any shares of capital stock,
any such convertible or exchangeable securities or obligations, or any
such warrants, rights or options.
(ix) Since the date of the most recent audited
financial statements included in the Prospectus, neither the Company
nor any of its subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as disclosed in or contemplated by the Prospectus.
(x) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except
as disclosed in the Prospectus (A) neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its
subsidiaries taken as a whole, (B) the Company has not purchased any
of its outstanding capital stock or declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock, (C)
there has not been any change in the capital stock (except as a result
of shares issued upon exercise of stock options pursuant to existing
stock option plans of the Company), long-term debt or, otherwise than
in the ordinary course of business consistent with past practice,
short-term debt of the Company or any of its subsidiaries, and (D)
there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
financial position, results of operations or business of the Company
and its
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subsidiaries taken as a whole, in each case other than as disclosed
in or contemplated by the Prospectus.
(xi) The Shares to be issued and sold by the Company
have been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully
paid and nonassessable and will conform to the description of the
Common Stock contained in the Prospectus; and the certificates
evidencing the Shares will comply with all applicable requirements of
Delaware law.
(xii) Except as disclosed in the Prospectus, and
except for registration rights granted to Massachusetts Mutual Life
Insurance Company and two of its affiliates (collectively, the
"Warrantholders") pursuant to those certain Warrant Agreements dated
April 15, 1992 to purchase an aggregate of 480,750 shares of Common
Stock, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement (or any
such right has been effectively waived) or any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(xiii) All offers and sales of the Company's capital
stock during the three years ended on the date hereof were at all
relevant times duly registered under the Act or exempt from the
registration requirements of the Act by reason of Sections 3(b), 4(2)
or 4(6) thereof and were duly registered or the subject of an
available exemption from the registration requirements of the
applicable state securities or blue sky laws.
(xiv) Neither the Company nor any of its subsidiaries
is, or with the giving of notice or passage of time or both would be,
in violation of its Certificate of Incorporation or Bylaws or in
default under any indenture, mortgage, deed of trust, loan agreement,
lease or other material agreement or instrument to which the Company
or any of its subsidiaries is a party or to which any of their
respective properties or assets are subject, except where such
violation or default does not have a material adverse effect on the
financial position, results of operations or business of the Company
and its subsidiaries taken as a whole (a "Material Adverse Effect").
(xv) The issue and sale of the Shares to be issued and
sold by the Company and the performance of this Agreement and the
consummation of the transactions herein contemplated will (i) not
conflict with, or (with or without the giving of notice or the passage
of time or both) result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease or other material
agreement or instrument to which the Company or any of its
subsidiaries is a party or to which any of their respective properties
or assets is subject, which conflict, breach, violation or default
would have a Material Adverse Effect; (ii) nor will such action
conflict with or violate any provision of the Certificate of
Incorporation or Bylaws of the Company or any of its subsidiaries or
any statute, rule or regulation or any order, judgment or decree of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties or assets.
(xvi) The Company and its subsidiaries have good and
marketable title in fee simple to all real property, if any, and good
title to all personal property owned
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by them, in each case free and clear of all liens, security interests,
pledges, charges, encumbrances, mortgages and defects, except such as
are disclosed in the Prospectus or such as do not have a Material
Adverse Effect; and any real property and buildings held under lease
by the Company or any of its subsidiaries are held under valid,
subsisting and enforceable leases, with such exceptions as are
disclosed in the Prospectus or would not have a Material Adverse
Effect.
(xvii) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body is required for the sale of
the Shares or the consummation of the transactions contemplated by
this Agreement, except the registration of the Shares under the Act
(which, if the Registration Statement is not effective as of the time
of execution hereof, shall be obtained as provided in this Agreement)
and such as may be required under state securities or blue sky laws in
connection with the offer, sale and distribution of the Shares by the
Underwriters.
(xviii) There is no litigation, arbitration, claim,
proceeding (formal or informal) or investigation pending or, to the
knowledge of the Company, threatened (or, to the knowledge of the
Company, any basis therefor) in which the Company or any of its
subsidiaries is a party or of which any of their respective properties
or assets are the subject which, if determined adversely to the
Company or any such subsidiary, could reasonably be expected to have
individually or in the aggregate, a Material Adverse Effect. Neither
the Company nor any of its subsidiaries is in violation of, or in
default with respect to, any statute, rule, regulation, order,
judgment or decree, except as described in the Prospectus or such
as do not and will not individually or in the aggregate have a
Material Adverse Effect.
(xix) Each of Xxxxxx Xxxxxxxx, LLP and Coopers &
Xxxxxxx L.L.P., who have certified certain financial statements of the
Company and its consolidated subsidiaries, is and was during the
periods covered by its report included in the Registration Statement
and the Prospectus, independent public accountants as required by the
Act and the Exchange Act and the respective rules and regulations of
the Commission thereunder.
(xx) The consolidated financial statements and
schedules (including the related notes) of the Company and its
consolidated subsidiaries included in the Registration Statement, the
Prospectus or any Preliminary Prospectus were prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved and fairly present the financial
position and results of operations of the Company and its
subsidiaries, on a consolidated basis, at the dates and for the
periods presented. The pro forma financial statements have been
prepared on a basis consistent with such historical statements, except
for the pro forma adjustments specified therein,
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and give effect to assumptions made on a reasonable basis and present
fairly in all material respects the historical and proposed
transactions for which pro forma financial information is included in
the Prospectus and this Agreement. The other financial and statistical
information and data included in the Registration Statement, the
Prospectus or any Preliminary Prospectus, historical and pro forma,
set forth under the captions "Selected Historical and Pro Forma
Financial and Other Data" "Capitalization" and the "Prospectus
Summary" in the Prospectus are, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(xxi) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating
to or affecting the enforcement of creditors' rights generally and to
general equitable principles.
(xxii) Except for the transactions contemplated by
those certain Warrant Redemption Agreements, each dated May 28, 1997
between the Company and the Warrantholders (the "Warrant Redemption
Agreements"), neither the Company nor any of its officers, directors
or affiliates has (A) taken, directly or indirectly, any action
designed to cause or result in, or that has constituted or 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 Shares or (B) since the filing of the
Registration Statement (1) sold, bid for, purchased or paid anyone
any compensation for soliciting purchases of, the Shares or (2) paid
or agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
(xxiii) The Company has obtained for the benefit of
the Company and the Underwriters from each of its directors and
executive officers a written agreement that for a period of 90 days
from the date of the Prospectus such director or executive officer
will not, without the written consent of the Representatives, offer,
pledge, sell, contract to sell, grant any options for the sale of, or
otherwise dispose of (or announce any offer, pledge, sale, grant of an
option to purchase or other disposition), directly or indirectly, any
shares of Common Stock or securities convertible into, or exercisable
or exchangeable for, shares of Common Stock.
(xxiv) Neither the Company, any of its subsidiaries, nor
any director, officer, agent, employee or other person associated with
or acting on behalf of the Company or any such subsidiary has,
directly or indirectly; used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses
relating to political activity; made any unlawful payment to foreign
or domestic government officials or employees or to foreign or
domestic political parties or campaigns from corporate funds; violated
any provision of the Foreign Corrupt Practices Act of 1977, as
amended; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(xxv) The operations of the Company and its
subsidiaries with respect to any real property currently leased or
owned or by any means controlled by the Company or any subsidiary (the
"Real Property") are in compliance with all federal,
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state, and local laws, ordinances, rules, and regulations relating to
occupational health and safety and the environment (collectively, "Laws"); and
the Company and its subsidiaries have all licenses, permits and authorizations
necessary to operate under all Laws and are in compliance in all material
respects with all terms and conditions of such licenses, permits and
authorizations; neither the Company nor any subsidiary has authorized, conducted
or has knowledge of the generation, transportation, storage, use, treatment,
disposal or release of any hazardous substance, hazardous waste, hazardous
material, hazardous constituent, toxic substance, pollutant, contaminant,
petroleum product, natural gas, liquefied gas or synthetic gas defined or
regulated under any environmental law on, in or under any Real Property in
violation of any Laws, except to the extent that noncompliance relating to any
of the foregoing items in this paragraph (xxv) may not reasonably be expected to
result in a Material Adverse Effect; and there is no pending or threatened
claim, litigation or any administrative agency proceeding, nor has the Company
or any subsidiary received any written or oral notice from any governmental
entity or third party, that: (A) alleges a violation of any Laws by the Company
or any subsidiary; (B) alleges the Company or any subsidiary is a liable party
under the Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. (Section Xxxx) 9601 et seq. or any state superfund law; (C) alleges
possible contamination of the environment by the Company or any subsidiary; or
(D) alleges possible contamination of the Real Property.
(xxvi) The Company and its subsidiaries own or have
the right to use all patents, patent applications, trademarks,
trademark applications, trade names, service marks, copyrights,
franchises, trade secrets, proprietary or other confidential
information and intangible properties and assets (collectively,
"Intangibles") necessary to their respective businesses as presently
conducted or as the Prospectus indicates the Company or such
subsidiary proposes to conduct. To the knowledge of the Company, (i)
neither the Company nor any subsidiary has infringed or is infringing,
and neither the Company nor any subsidiary has received notice of
infringement with respect to, asserted Intangibles of others; and,
(ii), there is no infringement by others of Intangibles of the Company
or any of its subsidiaries except which, in the case of clause (i) or
(ii), individually or in the aggregate would not have a Material
Adverse Effect.
(xxvii) The Company and each of its subsidiaries
are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary
in the businesses in which they are engaged; and neither the Company
nor any such subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a comparable cost,
except as disclosed in the Prospectus.
(xxviii) Each of the Company and its subsidiaries makes
and keeps accurate books, records and accounts, which, in reasonable
detail, accurately and fairly reflect the transactions and
dispositions of its assets and maintains a system of internal
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accounting controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with management's general
or specific authorization, (B) transactions are recorded as necessary
to permit preparation of the Company's consolidated financial
statements in accordance with generally accepted accounting principles
and to maintain accountability for the assets of the Company, (C)
access to the assets of the Company and each of its subsidiaries is
permitted only in accordance with management's general or specific
authorization, and (D) the recorded accountability for assets of the
Company and each of its subsidiaries is compared with existing assets
at reasonable intervals and appropriate action is taken with respect
to any differences.
(xxix) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distributions on such subsidiary's
capital stock or equity, from repaying to the Company any loans or
advances to such subsidiary or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary
of the Company, except as may be limited by applicable law, governing
instruments of the subsidiary or as disclosed in the Prospectus.
(xxx) The Company and its subsidiaries have filed all
foreign, federal, state and local tax returns that are required to be
filed by them or have requested extensions thereof and have paid all
taxes shown as due on such returns as well as all other taxes,
assessments and governmental charges that are due and payable except
for any such assessment or charge currently being contested in good
faith and of which we have advised you in writing; and no deficiency
with respect to any such return has been assessed or proposed.
(xxxi) The Company is not, will not become as a result
of the transactions contemplated hereby, and does not intend to
conduct its business in a manner that would cause it to become, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940.
(xxxii) The Common Stock is registered pursuant to
Section 12(b) of the Exchange Act and is listed on the New York Stock
Exchange ("NYSE"). The Company has taken no action designed to
terminate, or likely to have the effect of terminating, the
registration of the Common Stock under the Exchange Act or
listing of the Common Stock on the NYSE, nor has the Company
received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(xxxiii) The conditions for use of a Registration Statement on
Form S-3 set forth in the General Instructions to Form S-3 have been
satisfied with respect to the Company and the transactions
contemplated by this Agreement and the Registration Statement.
(xxxiv) No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent or threatened and the Company is not aware of
any
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existing, imminent or threatened labor disturbance by the
employees of any of its principal suppliers, manufacturers or
contractors that, in either case, could result in a Material Adverse
Effect.
2. Purchase and Sale of Shares. Subject to the terms and conditions herein
set forth, (a) the Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price of $_____ per share, the number of Firm Shares set
forth opposite their respective names in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by the
Representatives so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares that such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of the Optional Shares that all of
the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election in whole or in part from time to time up to 150,000 Optional
Shares, at the purchase price per share set forth in clause (a) in the paragraph
above, for the sole purpose of covering over-allotments in the sale of Firm
Shares. Any such election to purchase Optional Shares may be exercised by
written notice from the Representatives to the Company, given from time to time
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery (as
hereinafter defined) or, unless the Representatives and the Company otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice. In the event the Representatives elect to purchase all or a
portion of the Optional Shares, the Company agrees to furnish or cause to be
furnished to the Representatives the certificates, letters and opinions, and to
satisfy all conditions, set forth in Section 7 hereof at each Subsequent Time of
Delivery (as hereinafter defined).
3. Offering by the Underwriters. Upon the authorization by the Underwriters
of the release of the Shares, the several Underwriters propose to offer the
Shares for sale upon the terms and conditions disclosed in the Prospectus.
4. Delivery of Shares; Closing. Certificates in definitive form for the
Shares to be purchased by each Underwriter hereunder, and in such denominations
and registered in such names as The Xxxxxxxx-Xxxxxxxx Company, Inc. may request
upon at least 48 hours' prior notice to the Company shall be delivered by or on
behalf of the Company to the Representatives for the account of such
Underwriter, against payment by such Underwriter on its behalf of the purchase
price therefor by wire transfer to the accounts designated by the Company in
immediately available funds. The closing of the sale and purchase of the Shares
shall be held at the offices of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, Suite 1800, East
Tower, Atlanta Financial Center, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx
00000, except that physical delivery of such certificates shall be made at the
office of The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The time and date of such delivery and payment shall be, with respect to
the Firm Shares, at 10:00 a.m., Atlanta
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time, on the third full business day after this Agreement is executed, or, if
this Agreement is executed after 4:30 p.m. eastern time, on the fourth full
business day after this Agreement is executed or at such other time and date as
the Representatives and the Company may agree upon in writing, and, with respect
to the Optional Shares, at 10:00 a.m., Atlanta time, on the date specified by
the Representatives in the written notice given by the Representatives of the
Underwriters' election to purchase all or part of such Optional Shares, or at
such other time and date as the Representatives and the Company may agree upon
in writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery," such time and date for delivery of any Optional
Shares, if not the First Time of Delivery, is herein called a "Subsequent Time
of Delivery," and each such time and date for delivery is herein called a "Time
of Delivery." The Company will make such certificates available for checking and
packaging at least 24 hours prior to each Time of Delivery at the office of The
Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such
other location in New York, New York specified by the Underwriters in writing at
least 48 hours prior to such Time of Delivery.
5. Covenants.
(a) Covenants of the Company. The Company covenants and agrees with each of
the Underwriters:
(i) If the Registration Statement has been declared
effective prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with Rule 424(b)(1) (or, if applicable and if consented to by
the Representatives, Rule 424(b)(4)) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifth business day after the date on which the Registration
Statement is declared effective. The Company will advise the
Representatives promptly of any such filing pursuant to Rule 424(b). The
Company will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering, sale
and distribution of the Shares.
(ii) The Company will not file with the Commission the
Prospectus or the amendment referred to in the second sentence of Section
l(a)(i) hereof, any amendment or supplement to the Prospectus or any
amendment to the Registration Statement unless the Representatives have
received a reasonable period of time to review any such proposed amendment
or supplement and consented to the filing thereof and will use its best
efforts to cause any such amendment to the Registration Statement to be
declared effective as promptly as possible. Upon the request of the
Representatives or counsel for the Underwriters, the Company will promptly
prepare and file with the Commission, in accordance with the rules and
regulations of the Commission, 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 Shares by the several
Underwriters and will use its best efforts to cause any such amendment to
the Registration Statement to be declared effective as promptly as
possible. If required, the Company will file any amendment or supplement to
the Prospectus with the Commission in the manner and within the time period
required by Rule 424(b) under the Act. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time when
the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement thereto
has been filed and will provide evidence to the Representatives of each
such filing or effectiveness.
-11-
(iii) The Company will advise the Representatives promptly
after receiving notice or obtaining knowledge of (A) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, (B) the suspension of the qualification of
the Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (C) any request made
by the Commission or any securities authority of any other jurisdiction for
amending the Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use its best
efforts to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the withdrawal thereof as promptly as
possible.
(iv) If the delivery of a prospectus relating to the Shares
is required under the Act at any time prior to the expiration of nine
months after the date of the Prospectus and if at such time any events have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if for any reason it is necessary during such same period to
amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus to comply with the Act
or the Exchange Act or the respective rules and regulations thereunder, the
Company will promptly notify the Representatives and upon the request of
the Representatives (but at the Company's expense) prepare and file with
the Commission an amendment or supplement to the Prospectus that corrects
such statement or omission or effects such compliance and will furnish
without charge to each Underwriter and to any dealer in securities as many
copies of such amended or supplemented Prospectus as the Representatives
may from time to time reasonably request. If the delivery of a prospectus
relating to the Shares is required under the Act at any time nine months or
more after the date of the Prospectus, upon the request of the
Representatives but at the expense of such Underwriter, the Company will
prepare and deliver to such Underwriter as many copies as the
Representatives may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act. Neither the Representatives'
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 7.
(v) The Company promptly from time to time will take such
action as the Representatives may reasonably request to qualify the Shares
for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may request and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction.
(vi) The Company will promptly provide the Representatives,
without charge, (A) three manually executed copies of the Registration
Statement as originally filed with the Commission and of each amendment
thereto, including all documents or information incorporated by reference
therein, (B) for each other Underwriter a conformed copy of the
Registration Statement as originally filed and of each amendment thereto,
without exhibits but including all documents or information incorporated by
reference therein, and (C) so long as a prospectus relating to the Shares
is required to be delivered under the Act, as many copies of each
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Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto as the Representatives may reasonably request.
(vii) As soon as practicable, but in any event not later
than the last day of the fifteenth month after the effective date of the
Registration Statement, the Company will make generally available to its
security holders an earning statement of the Company and its subsidiaries,
if any, covering a period of at least 12 months beginning after the
effective date of the Registration Statement (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations
thereunder.
(viii) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, the Company will not, without the prior written consent of the
Representatives, offer, pledge, issue, sell, contract to sell, grant any
option for the sale of, or otherwise dispose of (or announce any offer,
pledge, sale, grant of an option to purchase or other disposition),
directly or indirectly, any shares of Common Stock or securities
convertible into, exercisable or exchangeable for, shares of Common Stock,
except as provided in Section 2 and except for the issuance of Common Stock
(i) upon the exercise of stock options outstanding on the date of this
Agreement to the extent that such stock options are disclosed in the
Prospectus and except for the issuance of shares of common stock pursuant
to the Company's Long-Term Incentive Plan and the issuance of options to
purchase shares of Common Stock pursuant to the Company's stock option
plans, as described in the Prospectus and (ii) the offer and sale of Common
Stock as part of the purchase price in connection with any acquisition,
provided that recipients of any such shares shall agree to the
restrictions contained in this paragraph (viii).
(ix) During a period of five years from the effective date
of the Registration Statement, the Company will furnish to the
Representatives and, upon request, to each of the other Underwriters,
without charge, (A) copies of all reports or other communications
(financial or other) furnished to shareholders, and (B) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange. In addition,
for a period of one year from the effective date of the Registration
Statement, the Company will furnish to the Representatives, without charge,
such additional information concerning the business and financial condition
of the Company and its subsidiaries, if any, as the Representatives may
reasonably request.
(x) Except for the transactions contempleted by the
Warrant Redemption Agreements, neither the Company nor any of its officers,
directors or affiliates will prior to the termination of the underwriting
syndicate contemplated by this Agreement, (A) take, directly or indirectly,
any action designed to cause or to result in, or that 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 any of the
Shares, (B) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of, the Shares except as provided in this Agreement or
(C) pay or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(xi) The Company will apply the net proceeds from the
Shares sold by the Company in the offering in the manner set forth under
"Use of Proceeds" in the Prospectus.
(xii) The Company will cause the Shares to be listed on the
NYSE at each Time of Delivery and will use its best efforts to cause the
Shares to be so listed for at least one year from the date hereof.
(xiii) If at any time during the period beginning on the date
the Registration Statement becomes effective and ending on the later of (A)
the date 30 days after such effective
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date and (B) the date that is the earlier of (1) the date on which the
Company next files with the Commission a Quarterly Report on Form 10-Q
after such effective date and (2) the date on which the Company next issues
a quarterly financial report to shareholders after such effective date, any
rumor, publication or event relating to or affecting the Company shall
occur as a result of which in the Representatives' reasonable 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 an amendment of or supplement to the Prospectus), the Company
will, after written notice from the Representatives advising the Company to
the effect set forth above, forthwith prepare, consult with the
Representatives concerning the substance of, and disseminate a press
release or other public statement, reasonably satisfactory to the
Representatives, responding to or commenting on such rumor, publication or
event.
6. Expenses. The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated
pursuant to Section 10 hereof, including, without limitation, all costs and
expenses incident to (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Shares under
the Act and all other expenses in connection with the preparation, printing and,
if applicable, filing of the Registration Statement (including all amendments
thereto), any Preliminary Prospectus, the Prospectus and any amendments and
supplements thereto, this Agreement and any blue sky memoranda; (ii) the
delivery of copies of the foregoing documents to the Underwriters; (iii) the
filing fees of the Commission and the National Association of Securities
Dealers, Inc. relating to the Shares; (iv) the preparation, issuance and
delivery to the Underwriters of any certificates evidencing the Shares,
including transfer agent's and registrar's fees; (v) the qualification of the
Shares for offering and sale under state securities and blue sky laws, including
filing fees and reasonable fees and disbursements of counsel for the
Underwriters relating thereto; (vi) any listing of the Shares on the NYSE and
(vii) any expenses for travel, lodging and meals incurred by or on behalf of the
Company and any of its officers, directors and employees in connection with any
meetings with prospective investors in the Shares. It is understood, however,
that, except as provided in this Section, Section 8 and Section 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses relating to the offer and sale of the Shares.
7. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy of
the representations and warranties of the Company contained herein as of the
date hereof and as of such Time of Delivery, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its covenants and agreements hereunder, and to the following
additional conditions precedent:
(a) If the registration statement as amended to date has not become
effective prior to the execution of this Agreement, such registration
statement shall have been declared effective not later than 11:00 a.m.,
Atlanta time, on the date of this Agreement or such later date and/or time
as shall have been consented to by the Representatives in writing. The
Prospectus and any amendment or supplement thereto shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing and in accordance with Section 5(a) of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted, threatened or, to
the knowledge of the Company and the Representatives, contemplated
-14-
by the Commission; and all requests for additional information on the part
of the Commission shall have been complied with to the Representatives'
reasonable satisfaction.
(b) Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions, dated
such Time of Delivery, with respect to the incorporation of the Company,
the validity of the Shares being delivered at such Time of Delivery, the
Registration Statement, the Prospectus, and other related matters as the
Representatives may reasonably request, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(c) The Representatives shall have received an opinion, dated such
Time of Delivery, of Xxxxxxx & Xxxxx, counsel for the Company, in form and
substance satisfactory to the Representatives and its counsel, to the
effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
own or lease its properties and conduct its business as described in the
Registration Statement and the Prospectus and to enter into this Agreement
and perform its obligations hereunder. The Company is duly qualified to
transact business as a foreign corporation and is in good standing under
the laws of each other jurisdiction in which it owns or leases property, or
conducts any business, in each case so as to require such qualification,
except where the failure to so qualify would not have a Material Adverse
Effect.
(ii) Each of the Material Subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to own or lease its properties and conduct its business as
described in the Registration Statement and the Prospectus. Each Material
Subsidiary is duly qualified to transact business as a foreign corporation
and is in good standing under the laws of each other jurisdiction in which
it owns or leases property, or conducts any business, in each case so as to
require such qualification, except where the failure to so qualify would
not have a Material Adverse Effect.
(iii) The Company's authorized, issued and outstanding
capital stock is as disclosed in the Prospectus. All of the issued shares
of capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description of
the Common Stock contained in the Prospectus under the caption "Description
of Capital Stock." None of the issued shares of capital stock of the
Company or any of its Material Subsidiaries has been issued or is owned or
held in violation of any statutory preemptive rights of shareholders, and
no person or entity (including any holder of outstanding shares of capital
stock of the Company or its Material Subsidiaries) has any statutory
preemptive or, to the knowledge of such counsel, other rights to subscribe
for any of the Firm Shares or Optional Shares.
(iv) All of the issued shares of capital stock of each of
the Material Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and, except as set forth in Exhibit A hereto,
are owned beneficially by the Company free and clear of all liens, security
interests, pledges, charges, encumbrances, defects, equities or claims of
any nature whatsoever. To such counsel's
-15-
knowledge, other than the subsidiaries listed on Exhibit A hereto, the
Company does not own, directly or indirectly, any capital stock or other
equity securities of any other corporation or any ownership interest in any
partnership, joint venture or other association other than as disclosed in
the Prospectus.
(v) Except as disclosed in the Prospectus, there are no
outstanding (A) securities or obligations of the Company or any of its
subsidiaries convertible into or exercisable or exchangeable for any
capital stock of the Company or any such subsidiary, (B) warrants, rights
or options to subscribe for or purchase from the Company or any such
subsidiary any such capital stock or any such convertible or exchangeable
securities or obligations, or (C) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or
options.
(vi) The Shares to be issued and sold by the Company have
been duly authorized and, when issued and delivered against payment
therefor as provided herein, will be validly issued and fully paid and
nonassessable and will conform in all material respects to the description
of the Common Stock contained in the Prospectus; the form of certificates
evidencing the Shares comply in all material respects with all applicable
requirements of Delaware law; and the Shares have been approved for listing
on the NYSE subject to notice of issuance.
(vii) Except as disclosed in the Prospectus and except for
the registration rights granted to the Warrantholders pursuant to those
certain Warrant Agreements dated April 15, 1992 to purchase an aggregate
of 480,750 shares of Common Stock, there are no contracts, agreements or
understandings known to such counsel between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement (or any such right has been effectively waived) or
in any securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(viii) Neither the Company nor any of the Material
Subsidiaries is, or with the giving of notice or passage of time or both,
would be, in violation of its Certificate of Incorporation, Bylaws or other
governing instruments or, to such counsel's knowledge, in default under any
material indenture, mortgage, deed of trust, loan agreement, lease or other
material agreement or instrument known to such counsel to which the Company
or any Material Subsidiary is a party or to which any of their respective
properties or assets is subject, in either case, where any such default or
violation would have a Material Adverse Effect.
(ix) The issue and sale of the Shares being issued at such
Time of Delivery and the performance of this Agreement and the consummation
of the transactions herein contemplated will not conflict with, or (with or
without the giving of notice or the passage of time or both) result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such counsel to
which the Company or any Material Subsidiary is a party or to which any of
their respective properties or assets is subject, nor will such action
conflict with or violate any provision of the Certificate of Incorporation,
Bylaws or other governing instruments of the Company or any Material
Subsidiary or any statute, rule or regulation known to such counsel or to
such counsel's knowledge any order, judgment or decree of any court or
governmental
-16-
agency or body having jurisdiction over the Company or any Material
subsidiary or any of their respective properties or assets.
(x) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with, any
court or governmental agency or body is required for the issue and sale of
the Shares or the consummation of the transactions contemplated by this
Agreement, except the registration of the Shares under the Act and such as
may be required under state securities or blue sky laws in connection with
the offer, sale and distribution of the Shares by the Underwriters.
(xi) To such counsel's knowledge and other than as disclosed
in or contemplated by the Prospectus, there is no litigation, arbitration,
claim, proceeding or investigation pending or threatened (or any reasonable
basis therefor) in which the Company or any of its subsidiaries is a party
or of which any of their respective properties or assets is the subject
which, if determined adversely to the Company or any such subsidiary, would
individually or in the aggregate have a Material Adverse Effect; and, to
such counsel's knowledge, neither the Company nor any of its subsidiaries
is in violation of, or in default with respect to, any statute, rule,
regulation or to such counsel's knowledge any order, judgment or decree,
where such violation or default would have a Material Adverse Effect,
except as described in the Prospectus.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws relating to or affecting
the enforcement of creditors' rights generally and to general equitable
principles, except that counsel may state that the enforceability of rights
to indemnity under this agreement may be limited under applicable
securities laws or the public policy underlying such laws.
(xiii) The Registration Statement and the Prospectus and
each amendment or supplement thereto (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion), as of their respective effective or issue dates, complied as to
form in all material respects with the requirements of the Act and the
Exchange Act and the respective rules and regulations thereunder. The
descriptions in the Registration Statement and the Prospectus of statutes,
legal and governmental proceedings or contracts and other documents are
accurate in all material respects, and fairly present the information
required to be shown; and such counsel do not know of any statutes or legal
or governmental proceedings required to be described in the Registration
Statement or Prospectus that are not described as required or of any
contracts or documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required.
(xiv) The Registration Statement is effective under the Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and, to
such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
-17-
(xv) The Company is not, and will not be as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company," or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940.
(xvi) To such counsel's knowledge, during the three years
ended on the effective date of the Registration Statement, all offers and
sales of the Company's capital stock were duly registered under the Act or
exempt from the registration requirements of the Act by reason of Sections
3(b), 4(2) or 4(6) thereof and were duly registered or the subject of an
available exemption from the registration requirements of the applicable
state securities or blue sky laws.
In addition, such counsel shall also state that, although
counsel has not undertaken, except as otherwise indicated in their opinion,
to determine independently, and does not assume any responsibility for, the
accuracy or completeness of the statements in the Registration Statement,
such counsel has participated in the preparation of the Registration
Statement and the Prospectus, including review and discussion of the
contents thereof, and no facts have come to their attention that have
caused such counsel to believe that the Registration Statement, at the time
the Registration Statement became effective, the Prospectus, as of its
date, and as of such Time of Delivery, as the case may be, contained or
contains any untrue statement of a material fact or omitted or omits 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
issue date and as of such Time of Delivery, contained or contains 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 light of the
circumstances under which they were made, not misleading (provided that
such counsel need express no belief regarding the financial statements and
related schedules and other financial and statistical data contained in the
Registration Statement, any amendment thereto, or the Prospectus, or any
amendment or supplement thereto).
-18-
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of
responsible officers of the Company and certificates, telegrams and other
statements of public officials and, as to matters involving the application
of laws of any jurisdiction other than the State of Illinois
or the United States, to the extent satisfactory in form and scope to
counsel for the Underwriters, upon the opinion of local counsel or general
counsel, provided that such counsel states such counsel believes that the
Underwriters are justified in relying upon such opinion and copies of such
opinion are delivered to the Representatives and counsel for the
Underwriters.
(d) The Representatives shall have received from Xxxxxx Xxxxxxxx, LLP
and Coopers & Xxxxxxx L.L.P. letters dated, respectively, the date hereof
(or, if the Registration Statement has been declared effective prior to the
execution and delivery of this Agreement, dated such effective date and the
date of this Agreement) and each Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Annex I and II hereto,
respectively. In the event that the letters referred to in this Section
7(d) set forth any changes, decreases or increases in the items specified
in paragraph (iv) of Annex I, it shall be a further condition to the
obligations of the Underwriters that (i) such letters shall be accompanied
by a written explanation by the Company as to the significance thereof,
unless the Representatives deem such explanation unnecessary, and (ii) such
changes, decreases or increases do not, in the sole judgment of the
Representatives, make it impracticable or inadvisable to proceed with the
purchase, sale and delivery of the Shares being delivered at such Time of
Delivery as contemplated by the Registration Statement, as amended as of
the date of such letter.
(e) Since the date of the latest audited financial statements included
in the Prospectus, neither the Company nor any of its subsidiaries shall
have sustained (i) any loss or interference with their respective
businesses from fire, explosion, flood, hurricane or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as disclosed in or
contemplated by the Prospectus, or (ii) any change, or any development
involving a prospective change (including without limitation a change in
management or control of the Company), in or affecting the position
(financial or otherwise), results of operations, net worth or business
of the Company and its subsidiaries, otherwise than as disclosed
in or contemplated by the Prospectus, the effect of which, in either such
case, is in the judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the purchase, sale
and delivery of the Shares being delivered at such Time of Delivery as
contemplated by the Registration Statement, as amended as of the date
hereof.
(f) Subsequent to the date hereof there shall not have occurred any of
the following: (i) any suspension or limitation in trading in securities
generally on the NYSE, or any setting of minimum prices for trading on such
exchange, or in the Common Stock by the Commission or the NYSE; (ii) a
moratorium on commercial banking activities in New York declared by either
federal or state authorities; or (iii) any outbreak or escalation of
hostilities involving the United States, declaration by the United States
of a national emergency or war or any other national or international
calamity or emergency if the effect of any such event specified in this
clause (iii) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the purchase, sale and delivery of the
Shares being delivered at such Time of Delivery as contemplated by the
Registration Statement, as amended as of the date hereof.
(g) The Company shall have furnished to the Representatives at such
Time of Delivery certificates of officers of the Company, satisfactory to
the Representatives, as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as the Representatives may reasonably request, and the Company
shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (e) of this Section 7, and as to
such other matters as the Representatives may reasonably request.
(h) The Shares shall be listed, or approved for listing upon
offical notice of issuance, on the NYSE.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person, if any, who
controls each Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter 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 made by
the Company in Section 1(a) 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, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, (B) any
application or other document, or any amendment or supplement thereto,
executed by the Company or based upon written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify the
Shares under the securities or blue sky laws thereof or filed with the
Commission or any securities association or securities exchange (each an
"Application") or (C) any audio or visual materials, approved by the
Company and derived solely from information supplied by the Company to be
used in connection with the marketing of the Shares, including without
limitation, slides, videos, films or tape recordings; or (iii) the omission
or alleged omission to state in the Registration Statement or any amendment
thereto, any Preliminary Prospectus, 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, in light of the
circumstances under which they are made, not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by
such Underwriter 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 shall not
be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus, 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
expressly for use therein; PROVIDED, FURTHER, HOWEVER, that the Company
shall not be liable to any Underwriter in respect of any Preliminary
Prospectus to the extent that (i) the Prospectus did not contain the untrue
statement or alleged untrue statement or omission or alleged omission
giving rise to such loss, claim, damage, liability or action, (ii) the
Prospectus was not sent or given to the purchaser of the Shares in question
at or prior to the time at which the written confirmation of the sale of
such Shares was sent or given to such person, and (iii) the failure to
deliver such Prospectus within a reasonable amount of time prior to such
sale or confirmation was not the result of the Company's noncompliance with
its obligations under Sections 5(a)(ii) and 5(a)(vi) hereof. The Company
will not, without the prior written consent of each Underwriter, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding (or related cause of action or
portion thereof) in respect of which indemnification may be sought
hereunder (whether or not such
-20-
Underwriter is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an
unconditional release of such Underwriter from all liability arising out of
such claim, action, suit or proceeding (or related cause of action or
portion thereof).
(b) Each Underwriter, severally but not jointly, agrees to indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement or any amendment
thereto, or any Application or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying 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 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 assume the defense of such action on behalf of such indemnified
party and such indemnified party shall have the right to select separate counsel
to defend such action on behalf of such indemnified party. After such 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 or (ii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party or (iii) the indemnifying party shall have failed to
assume the defense thereof. Nothing in this Section 8(d) shall preclude an
indemnified party from participating at its own expense in the defense of any
such action so assumed by the indemnifying party. Notwithstanding any exceptions
to the obligation to indemnify contained in the provisos of the first sentence
of paragraphs (a), (b) and (c) of this section, and unless and until it is
finally judicially determined by a court of competent jurisdiction that the
indemnified party is not entitled to indemnification by virtue thereof or
otherwise, the obligation of the indemnifying party to make reimbursement
payments for the costs and expenses of an indemnifiable claim shall arise, and
such payment shall be made against proper documentation thereof, currently and
as incurred by the
-21-
indemnified party. In the event that such payments are made and it is
subsequently finally judicially determined by a court of competent jurisdiction
that the indemnified party is not entitled to indemnification by virtue of the
provisions as aforesaid or otherwise, the indemnified party who received such
indemnity payments shall reimburse the same, with interest from the date of
disbursement by the indemnifying party, to the indemnifying party to the extent
such indemnified party was not entitled to the same in the first instance.
Anything in this Paragraph 8 to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
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 net
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 shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
-22-
9. Default of Underwriters. (a) If any Underwriter defaults in its
obligation to purchase Shares at a Time of Delivery, the Representatives may in
their discretion arrange for the Representatives or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six (36) hours after such default by any Underwriter the Representatives
do not arrange for the purchase of such Shares, the Company shall be entitled to
a further period of thirty-six (36) hours within which to procure another party
or other parties satisfactory to the Representatives to purchase such Shares on
such terms. In the event that, within the respective prescribed periods, the
Underwriters notify the Company that the Representatives have so arranged for
the purchase of such Shares, or the Company notify the Representatives that they
have so arranged for the purchase of such Shares, the Representatives or the
Company shall have the right to postpone a Time of Delivery for a period of not
more than seven days in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus that in the opinion
of the Representatives may thereby be made necessary. The cost of preparing,
printing and filing any such amendments shall be paid for by the Underwriters.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement with respect to such Shares. The thirty-six (36)
hour periods referred to in this subsection (a) shall not include the hours
between (i) 5:00 p.m., Atlanta time, on any Friday through 9:00 a.m., Atlanta
time, the following Monday or (ii) 5:00 p.m., Atlanta time, on the day preceding
a day on which the NYSE is closed for trading (a "holiday") through 9:00 a.m.,
Atlanta time, on the day following that holiday.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above, the aggregate number of
such Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of Shares to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made, but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. Termination. (a) This Agreement may be terminated with respect to the
Firm Shares or any Optional Shares in the sole discretion of the Representatives
by notice to the Company given prior to the First Time of Delivery or any
Subsequent Time of Delivery, respectively, in the event that (i) any condition
to the obligations of the Underwriters set forth in Section 7 hereof has not
been satisfied, or (ii) the Company shall have failed, refused or been unable to
deliver the Shares or to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder at or prior to such Time of
Delivery, in either case other than by reason of a default by any of the
Underwriters. If this Agreement is terminated pursuant to this Section 10(a),
except for any termination by the Underwriters pursuant to Section 7(f), the
Company, will reimburse the Underwriters severally upon demand for all
reasonable 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 Shares. 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.
-23-
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in Section 9(a), the aggregate number of such Shares
which remains unpurchased exceeds one-eleventh of the aggregate number of Shares
to be purchased at such Time of Delivery, or if the Company shall not exercise
the right described in Section 9(b) to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to a Subsequent Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company,
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its officers, and the several
Underwriters, as 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 any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person referred to in
Section 8(e) or the Company, or any officer or director or controlling person of
the Company referred to in Section 8(d), and shall survive delivery of and
payment for the Shares. 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.
12. Notices. All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be mailed, delivered or telegraphed and
confirmed in writing to the Representatives in care of The Xxxxxxxx-Xxxxxxxx
Company, Inc., 0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention:
Corporate Finance Department (with a copy to Xxxxx, Xxxxxxxx & Xxxxxxx, LLP,
Suite 1800, East Tower Atlanta Financial Center, 0000 Xxxxxxxxx Xxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000; and if sent to the Company, shall be mailed, delivered
or telegraphed and confirmed in writing to the Company at 0 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, Attention: Chairman of the Board, with a
copy to Xxxxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxxxx, Esq.
13. Binding Effect. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters and the Company and to the extent provided
in Sections 8 and 10 hereof, the officers and directors and controlling persons
referred to therein and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to any
provisions regarding conflicts of laws.
15. Counterparts. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
If the foregoing is in accordance with the Representatives' understanding
of our agreement, please sign and return to us one of the counterparts hereof,
and upon the acceptance hereof by The Xxxxxxxx-
-24-
Xxxxxxxx Company, Inc., on behalf of each of the Underwriters, this letter
will constitute a binding agreement among the Underwriters and the Company.
It is understood that the Representatives' execution of this Agreement on
behalf of each of the Underwriters is pursuant to the authority set forth in
the Master Agreement among Underwriters, a copy of which shall be submitted to
the Company for examination, upon request, but without warranty on the
Representatives' part as to the authority of the signers thereof.
Very truly yours,
XXXXXXX CORPORATION
By:
Xxxxxx X. Xxxxxx, Xx.
Chairman of the Board and
Chief Executive Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above at Atlanta, Georgia.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
XXXXXX XXXX LLC
PAINEWEBBER INCORPORATED
By: The Xxxxxxxx-Xxxxxxxx Company, Inc.
By:
(Authorized Representative)
On behalf of each of the Underwriters
-25-
SCHEDULE I
Number of
Optional
Total Shares to be
Number of Firm Purchased if
Shares to be Maximum Option
Purchased Exercised
Underwriter
The Xxxxxxxx-Xxxxxxxx Company, Inc. . . . . . . . . . .
Xxxxxx Xxxx LLC . . . . . . . . . . . . . . . . . . . .
PaineWebber Incorporated. . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . 2,350,000 150,000
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, Xxxxxx
Xxxxxxxx, LLP shall furnish letters to the Underwriters to the effect that:
(i) they are independent public accountants with respect to the
Company and its consolidated subsidiaries within the meaning the Act
and the Exchange Act and the applicable published rules and regulations
thereunder;
(ii) in their opinion, the consolidated financial statements
audited by them and included in the Prospectus and the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations thereunder;
(iii) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) as of a specified date not more than 5 days prior to the
date of such letter, there were any changes in the capital stock
(other than the issuance of capital stock upon exercise of
options which were outstanding on the date of the latest balance
sheet included in the Prospectus) or any increase in the
long-term debt or short-term debt of the Company and its
subsidiaries, or any decreases in net current assets or net
assets or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(B) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in Clause (A) there were any decreases in net sales
or operating income or the total or per share amounts of net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length specified
by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur which are described in such letter; and
(iv) In addition to the audit referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraph
(iii) above, they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the
general accounting records of the Company and its subsidiaries,
included in the Registration Statement and the Prospectus, or which
appear in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records
of the Company and its subsidiaries and have found them to be in
agreement.
(v) on the basis of a reading of the unaudited pro forma
combined condensed financial statements included in the Registration
Statement and the Prospectus, carrying out certain specified procedures
that would not necessarily reveal matters of significance with respect
to the comments set forth in this paragraph (v), inquiries of certain
officials of the Company and its consolidated subsidiaries who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the unaudited pro forma consolidated
condensed financial statements, nothing came to their attention that
caused them to believe that the unaudited pro forma consolidated
condensed financial statements do not comply as to form in all material
respects with the applicable accounting requirements of Regulation S-X
or that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in this
Annex I shall include any amendment or supplement thereto at the date of such
letter.
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Coopers &
Xxxxxxx L.L.P. shall furnish letters to the Underwriters to the effect that:
(i) they are independent public accountants with respect to
Xxxxx Transportation Products Group ("Xxxxx") within the meaning the
Act and the applicable published rules and regulations thereunder;
(ii) in their opinion, the financial statements and schedules
audited by them and included or incorporated by reference in the
Prospectus and the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder;
(iii) they have carried out certain specified procedures, not
constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the
general accounting records of Xxxxx, included or incorporated by
reference in the Registration Statement and the Prospectus, or which
appear in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of Xxxxx and have found them to be in agreement.
References to the Registration Statement and the Prospectus in this
Annex II shall include any amendment or supplement thereto at the date of such
letter.
EXHIBIT A
Xxxxxxx Cable Systems, Inc.
Xxxxxxx Electric Corporation
Emtec Products Corporation
Xxxxxxxxx, Inc.
Xxxxxxx Plastics of Canada, Ltd.
Xxxxxxx Industrial Products, Inc.
Xxxxxxx Specialities, Inc.
Borse Plastic Products Corp.
Associated Engineering Company
The DeKalb Works Company
Baron Wire & Cable Corp.
Xxxxxxxxx U.S. Inc.
Xxxxxxxxx (Europe) Holdings Limited
Transpro Group, Inc.
Xxxxxxxxx Manufacturing Canada Inc.
Lacom Schwitzere Equipamentos, Ltda
Xxxxx/Asia LTD.
Xxxxx Industries X.X.
Xxxxx DO BRASIL, LTDA
Interflex de Mexico S.A. de X.X.
Xxxxxxxxx (Europe) Limited
Xxxxxxxxx Pension Trustee Limited
Xxxxx Europe Ltd.
Dynair Ltd.
