1,200,000 Shares
AMERICAN LIST CORPORATION
Common Stock
UNDERWRITING AGREEMENT
[ ] , 1996
Xxxxxxxxxxx & Co., Inc.
Xxxxxx Xxxx
c/o Oppenheimer & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
On behalf of the Several
Underwriters named on
Schedule I attached hereto.
Ladies and Gentlemen:
Certain stockholders of American List Corporation, a Delaware corporation
(the "Company") named on Schedule II to this Agreement (the "Selling
Stockholders") propose to sell to you and the other underwriters named on
Schedule I to this Agreement (the "Underwriters"), for whom you are acting as
Representatives, an aggregate of 1,200,000 shares (the "Firm Shares") of the
Company's Common Stock, $0.01 par value (the "Common Stock"). In addition, one
of the Selling Stockholders, named on Schedule III to this Agreement (the
"Option Selling Stockholder") proposes to grant to the Underwriters an option to
purchase up to an additional 180,000 shares (the "Option Shares") of Common
Stock from such Option Selling Stockholder for the purpose of covering
over-allotments in connection with the sale of the Firm Shares. The Firm Shares
and the Option Shares are together called the "Shares."
1. Sale and Purchase of the Shares. On the basis of the representations,
warranties and agreements contained in, and subject to the terms and conditions
of, this Agreement:
(a) The Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase, at $[ ] per share (the "Initial
Price"), the number of Firm Shares (adjusted by the Representatives to
eliminate fractions) which bears the same proportion to the total number of
Firm Shares to be sold by the Selling Stockholders as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule I to
this Agreement bears to the total number of Firm Shares to be sold by the
Selling Stockholders.
(b) The Option Selling Stockholder grants to the several Underwriters
an option to purchase, severally and not jointly, all or any part of the
Option Shares at the Initial Price. The number of Option Shares to be
purchased by each Underwriter shall be the same percentage (adjusted by the
Representatives to eliminate fractions) of the total number of Option
Shares to be purchased by the Underwriters as such Underwriter is
purchasing of the Firm Shares. Such option may be exercised only to cover
over-allotments in the sales of the Firm Shares by the Underwriters and may
be exercised in whole or in part at any time on or before 12:00 noon, New
York City time, on the business day before the Firm Shares Closing Date (as
defined below), and only once thereafter within 30 days after the date of
this Agreement, in each case upon written or telegraphic notice, or verbal
or telephonic notice confirmed by written or telegraphic notice, by the
Representatives to the Option Selling Stockholder no later than 12:00 noon,
New York City time, on the business day before the Firm Shares Closing Date
or at least two business days before the Option Shares Closing Date (as
defined below), as the case may be, setting forth the number of Option
Shares to be purchased and the time and date (if other than the Firm Shares
Closing Date) of such purchase.
2. Delivery and Payment. Delivery of the certificates for the Firm Shares
shall be made by the Custodian (as hereinafter defined) on behalf of the Selling
Stockholders to the Representatives for the respective accounts of the
Underwriters, and payment of the purchase price by certified or official bank
check or checks payable in New York Clearing House (next day) funds to the
Custodian, shall take place at the offices of Xxxxxxxxxxx & Co., Inc., at
Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m., New York City time, on the third business day following the date of this
Agreement, provided, however, that if the Shares sold hereunder are priced and
this Agreement is entered into after 4:30 p.m., New York City time, on any
business day, payment and delivery in respect of the Firm Shares shall take
place on the fourth business day following the date of this Agreement; in either
case unless another time shall be agreed upon by the Selling Stockholders and
the Representatives (such time and date of delivery and payment are called the
"Firm Shares Closing Date").
In the event the option with respect to the Option Shares is exercised,
delivery of the certificates for the Option Shares shall be made by the
Custodian to the Representatives for the respective accounts of the Underwriters
and payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (next day) funds to the Custodian shall take
place at the offices of Xxxxxxxxxxx & Co., Inc. specified above at the time and
on the date (which may be the same date as, but in no event shall be earlier
than, the Firm Shares Closing Date) specified in the notice referred to in
Section 1(b) (such time and date of delivery and payment are called the "Option
Shares Closing Date"). The Firm Shares Closing Date and the Option Shares
Closing Date are called, individually, a "Closing Date" and, together, the
"Closing Dates."
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Certificates evidencing the Shares shall be registered in such names and
shall be in such denominations as the Representatives shall request at least two
full business days before the Firm Shares Closing Date or, in the case of Option
Shares, on the day of notice of exercise of the options, as described in Section
l(b), and shall be made available to the Representatives for checking and
packaging at such place as is designated by the Representatives, on the business
day before the Firm Shares Closing Date (or the Option Shares Closing Date in
the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The Company has
prepared in conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the published rules and regulations
thereunder (the "Rules") adopted by the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-00545), including a
preliminary prospectus relating to the Shares, and has filed with the Commission
the Registration Statement (as hereinafter defined) and such amendments thereof
as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company to you. The
term "preliminary prospectus" means the preliminary prospectus (as described in
Rule 430 of the Rules) included at any time as a part of the Registration
Statement or filed with the Commission by the Company with the consent of the
Representatives pursuant to Rule 424(a) of the Rules, including all information
incorporated by reference therein. The Registration Statement, as amended at the
time and on the date it becomes effective (the "Effective Date"), including
information incorporated by reference therein and all exhibits and information,
if any, deemed to be part of the Registration Statement pursuant to Rule 424(b)
and Rule 430A of the Rules, is called the "Registration Statement." The term
"Prospectus" means the prospectus, including all information incorporated by
reference therein in the form first used to confirm sales of the Shares (whether
such prospectus was included in the Registration Statement at the time of
effectiveness or was subsequently filed with the Commission pursuant to Rule
424(b) of the Rules). If the Company files a registration statement to register
a portion of the Shares and relies on Rule 462(b) for such registration
statement to become effective upon filing with the Commission (the "Rule 462(b)
Registration Statement"), then any reference to the "Registration Statement"
herein shall be deemed to include both the registration statement referred to
above (No. 333-00545) and the Rule 462(b) Registration Statement, as each such
registration statement may be amended pursuant to the Securities Act.
The Company and the Selling Stockholders understand that the Underwriters
propose to make a public offering of the Shares, as set forth in and pursuant to
the Prospectus, as soon after the Effective Date and the date of this Agreement
as the Representatives deem advisable. The Company and the Selling Stockholders
hereby confirm that the Underwriters and dealers have been authorized to
distribute or cause to be distributed each preliminary prospectus and are
authorized to distribute the Prospectus (as from time to time amended or
supplemented if the Company furnishes amendments or supplements thereto to the
Underwriters).
4. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Underwriter as follows:
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(a) On the Effective Date, the Registration Statement and all other
registration statements and reports filed with the Commission by the
Company complied, and on the date of the Prospectus, on the date any
post-effective amendment to the Registration Statement shall become
effective, on the date any supplement or amendment to the Prospectus is
filed with the Commission, at all times that a prospectus must be delivered
by the Underwriters pursuant to the Securities Act and on each Closing
Date, the Registration Statement and the Prospectus (and any amendment
thereof or supplement thereto) and all other registration statements and
reports filed with the Commission by the Company will comply, in all
material respects, with the applicable provisions of the Securities Act and
the Rules and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission
thereunder; the Registration Statement did not, as of the Effective Date,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and on the other dates referred to
above neither the Registration Statement nor the Prospectus, nor any
amendment thereof or supplement thereto, will contain any untrue statement
of a material fact or will omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. When any related preliminary prospectus was first filed with
the Commission (whether filed as part of the Registration Statement or any
amendment thereto or pursuant to Rule 424(a) of the Rules) and when any
amendment thereof or supplement thereto was first filed with the
Commission, such preliminary prospectus, as amended or supplemented,
complied in all material respects with the applicable provisions of the
Securities Act and the Rules and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. Notwithstanding the foregoing, the Company and the Selling
Stockholders make no representation or warranty as to the last paragraph of
the cover page of the Prospectus, the paragraph with respect to
stabilization on the inside front cover page of the Prospectus and the
statements contained under the caption "Underwriting" in the Prospectus (to
the extent such statements relate to the Underwriters). The Company and
each of the Selling Stockholders acknowledge that the statements referred
to in the previous sentence constitute the only information furnished in
writing by the Representatives on behalf of the several Underwriters
specifically for inclusion in the Registration Statement, any preliminary
prospectus or the Prospectus. The documents incorporated by reference in
the Registration Statement and the Prospectus, when they were first filed
with the Commission, complied in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the
Commission thereunder and any document filed under the Exchange Act after
the Effective Date of the Registration Statement, the date of the
preliminary prospectus or the date of the Prospectus, as the case may be,
which is incorporated therein by reference will, when they are filed with
the Commission, comply in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) All contracts and other documents required to be filed as exhibits
to the Registration Statement have been filed with the Commission or
incorporated by reference as exhibits to the Registration Statement.
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(c) The consolidated financial statements of the Company (including
all notes and schedules thereto) included in the Registration Statement and
the Prospectus comply as to form in all material respects with the
Securities Act and the Exchange Act and present fairly on a consolidated
basis the financial position, the results of operations and cash flows and
the stockholders' equity and the other information purported to be shown
therein of the Company at the respective dates and for the respective
periods to which they apply; and such financial statements have been
prepared in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, and all adjustments
necessary for a fair presentation of the results for such periods have been
made; and the other financial and statistical information and the
supporting schedules included or incorporated by reference in the
Prospectus and in the Registration Statement present fairly, in all
material respects, the information required to be stated therein.
(d) Xxxxx Xxxxxxxx LLP, whose reports are filed with the Commission as
a part of the Registration Statement, are, and during the periods covered
by their reports were, independent public accountants as required by the
Securities Act and the Rules.
(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
Except for GeoDemX Corporation, a corporation organized under the laws of
the State of Michigan, and American Student List Company, Inc., a
corporation organized under the laws of the State of New York
(collectively, the "Subsidiaries"), the Company has no subsidiary or
subsidiaries and does not control, directly or indirectly, any corporation,
partnership, joint venture, association or other business organization.
Each of the Subsidiaries has been duly organized and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
organization. Each of the Company and its Subsidiaries is duly qualified
and in good standing as a foreign corporation in each jurisdiction in which
the character or location of its assets or properties (owned, leased or
licensed) or the nature of its business makes such qualification necessary,
except for such jurisdictions where the failure to so qualify would not
have a material adverse effect on the assets or properties, business,
results of operations, prospects or condition (financial or otherwise) of
the Company and its Subsidiaries, taken as a whole. Except as disclosed in
the Registration Statement and the Prospectus, neither the Company nor any
of its Subsidiaries owns, leases or licenses any asset or property or
conducts any business outside the United States of America. Each of the
Company and its Subsidiaries has all requisite power and authority, and all
necessary authorizations, approvals, consents, orders, licenses,
certificates and permits of and from all governmental or regulatory bodies,
or any other person or entity, to own, lease and license its assets and
properties and conduct its businesses as now being conducted and as
described in the Registration Statement and the Prospectus, except for such
authorizations, approvals, consents, orders, licenses, certificates and
permits the failure to so obtain would not have a material adverse effect
upon the assets or properties, business, results of operations, prospects
or condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole; no such authorization, approval, consent, order, license,
certificate or permit contains a materially burdensome restriction other
than as disclosed in the Registration Statement and the Prospectus; and the
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Company has all such corporate power and authority, and such
authorizations, approvals, consents, orders, licenses, certificates and
permits, to enter into, deliver and perform this Agreement (except as may
be required under the Securities Act and state and foreign Blue Sky laws).
(f) Neither the Commission nor the Blue Sky or securities authorities
of any jurisdiction has issued an order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any preliminary
prospectus, the Prospectus, the Registration Statement, or any amendment or
supplement thereto, refusing to permit the effectiveness of the
Registration Statement or suspending the registration or qualification of
the Shares, nor has any of such authorities instituted or threatened to
institute any proceedings with respect to such an order in any jurisdiction
in which the Shares are to be sold.
(g) Each of the Company and its Subsidiaries owns, or possesses
adequate and enforceable rights to use, all trademarks, trademark
applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct of its
business as described in the Registration Statement and the Prospectus.
Neither the Company nor any Subsidiary has received any notice of, or to
its best knowledge is aware of, any infringement of or conflict with
asserted rights of others with respect to any Intangibles which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect upon the assets or
properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a
whole.
(h) Each of the Company and its Subsidiaries has good title to each of
the items of real and personal property which are reflected in the
financial statements referred to in Section 4(c) or are referred to in the
Registration Statement and the Prospectus as being owned by it and valid
and enforceable leasehold interests in each of the items of real and
personal property which are referred to in the Registration Statement and
the Prospectus as being leased by it, in each case free and clear of all
liens, encumbrances, claims, security interests and defects, other than
those described in the Registration Statement and the Prospectus and those
which do not and will not have a material adverse effect upon the assets or
properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a
whole.
(i) There is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or board,
pending or, to the best knowledge of the Company, threatened (and the
Company does not know of any basis therefor) against, or involving the
assets, properties or business of, the Company or any of its Subsidiaries
which would materially adversely affect the value or the operation of any
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such assets or properties or the business, results of operations, prospects
or condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole, which would prevent the consummation of the transactions
contemplated by this Agreement or is required to be disclosed in the
Prospectus.
(j) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
therein, (i) there has not been any material adverse change in the assets
or properties, business, results of operations, prospects or condition
(financial or otherwise), of the Company or any of its Subsidiaries,
whether or not arising from transactions in the ordinary course of
business; (ii) neither the Company nor any of its Subsidiaries has
sustained any material loss or interference with its assets, businesses or
properties (whether owned or leased) from fire, explosion, earthquake,
hurricane, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental
action, order or decree; and (iii) and since the date of the latest balance
sheet included in the Registration Statement and the Prospectus, except as
reflected therein, neither the Company nor any of its Subsidiaries has (A)
issued any securities or incurred any liability or obligation, direct or
contingent, for borrowed money, except such liabilities or obligations
incurred in the ordinary course of business, (B) entered into any
transaction not in the ordinary course of business or (C) declared or paid
any dividend, other than its regular quarterly dividend, or made any
distribution on any shares of its stock or redeemed, purchased or otherwise
acquired or agreed to redeem, purchase or otherwise acquire any shares of
its stock or other securities.
(k) There is no document or contract of a character required to be
listed as an exhibit to the Company's Annual Report on Form 10-KSB for the
fiscal year ended February 28, 1995 (the "1995 10K") which is not described
or filed as required. Each agreement listed as an exhibit to the 1995 10K
is in full force and effect and is valid and enforceable by and against the
Company or one or more of its Subsidiaries, as the case may be, in
accordance with its terms, assuming the due authorization, execution and
delivery thereof by each of the other parties thereto. Neither the Company
nor any of its Subsidiaries, nor, to the best knowledge of the Company, any
other party is in default in the observance or performance of any term or
obligation to be performed by it under any such agreement, and no event has
occurred which with notice or lapse of time or both would constitute such a
default, in any such case which default or event would have a material
adverse effect on the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the Company
and its Subsidiaries, taken as a whole. No default exists, and no event has
occurred which with notice or lapse of time or both would constitute a
default, in the due performance and observance of any term, covenant or
condition, by the Company or any of its Subsidiaries, of any other
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which it or its properties or business may be bound or
affected which default or event would have a material adverse effect on the
assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and its Subsidiaries,
taken as whole.
(l) Neither the Company nor any of its Subsidiaries is in violation of
any term or provision of its charter or by-laws or of any franchise,
license, permit, judgment, decree, order, statute, rule or regulation,
where the consequences of such violation would have a material adverse
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effect on the assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole.
(m) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby (including, without limitation, the sale by the Selling Stockholders
of the Shares) will give rise to a right to terminate or accelerate the due
date of any payment due under, or conflict with or result in the breach of
any term or provision of, or constitute a default (or an event which with
notice or lapse of time or both would constitute a default) under, or
require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or assets
of the Company or any of its Subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of its properties or businesses
is bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation, applicable to the Company or any of its
Subsidiaries or violate any provision of the Articles of Incorporation or
By-laws of the Company, except for such consents or waivers which have
already been obtained and are in full force and effect.
(n) The Company has an authorized and outstanding capital stock as set
forth under the captions "Capitalization" and "Description of Capital
Stock" in the Prospectus. All of the outstanding shares of the Company's
Common Stock, $0.01 par value (the "Common Stock") have been duly and
validly issued and are fully paid and nonassessable and none of them was
issued in violation of any preemptive or other similar right. Except as
disclosed in the Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the issuance of, and
there is no commitment, plan or arrangement to issue, any share of stock of
the Company, or any security convertible into, or exercisable or
exchangeable for, such stock. The Common Stock and the Shares conform in
all material respects to all statements in relation thereto contained in
the Registration Statement and the Prospectus.
(o) Except as described in the Registration Statement and the
Prospectus, no holder of any security of the Company has the right to have
any security owned by such holder included in the Registration Statement or
to demand registration of any security owned by such holder during the
period ending 180 days after the date of this Agreement. Each Stockholder
listed on Schedule IV hereto, director and executive officer of the Company
has delivered to the Representatives his or her enforceable written
agreement that, he or she will not, for a period of 180 days after the date
of this Agreement, directly or indirectly, offer, sell (including "short
sales"), assign, encumber or otherwise transfer or dispose of
(collectively, "Transfer"), or contract to Transfer, any shares of Common
Stock or any other securities convertible into or exchangeable for shares
of Common Stock, or any other equity securities of the Company owned by him
or her, without the prior written consent of Xxxxxxxxxxx & Co., Inc.
("Oppenheimer"), except for (i) sales to the several Underwriters pursuant
to this Agreement, (ii) privately negotiated sales to an individual (a
"Restricted Person") of the Company's Common Stock, provided that such
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Restricted Person agrees in writing to be bound by the foregoing
restrictions, or (iii) pursuant to will or the laws of intestate
succession, provided the transferee agrees in writing to be bound by such
restrictions.
(p) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement. The Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles and (ii) to the extent that
rights to indemnity or contribution under this Agreement may be limited by
Federal and state securities laws or the public policy underlying such
laws.
(q) Neither the Company nor any of its Subsidiaries is involved in any
labor dispute nor, to the best knowledge of the Company, is any such
dispute threatened, which dispute would have a material adverse effect on
the assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole; and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors which would have a material adverse effect on
the assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole.
(r) No transaction has occurred between or among the Company or any of
its Subsidiaries and any of its officers or directors or any affiliate or
affiliates of any such officer or director, that is required to be
described in and is not described in the Registration Statement and the
Prospectus.
(s) Neither the Company nor any of its Subsidiaries has taken, nor
will any of them take, directly or indirectly, any action designed to or
which might reasonably be expected to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of any of the Shares.
(t) Each of the Company and its Subsidiaries has filed all Federal,
state, local and foreign tax returns which are required to be filed through
the date hereof, or has received valid extensions thereof, and has paid all
taxes shown on such returns and all assessments received by it to the
extent that the same are material and have become due.
(u) The Shares have been duly authorized for quotation on the American
Stock Exchange, Inc.
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(v) The Company has complied with all of the requirements and filed
the required forms as specified in Florida Statutes Section 517.075.
(w) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as each such term is defined in the Investment Company Act of
1940, as amended.
(x) Each of the Company and its Subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are customary in the business in which it is engaged; and
the Company has no reason to believe that it or any Subsidiary will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not materially and
adversely affect the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
Subsidiaries, taken as a whole, except as described in or contemplated by
the Prospectus.
(y) Neither the Company nor any of its Subsidiaries has, directly or
indirectly, paid or delivered any fee, commission or other sum of money or
item of property, however characterized, to any finder, agent, government
official or other party, in the United States or any other country, which
is in any manner related to the business or operations of the Company or
such Subsidiary, which the Company knows or has reason to believe to have
been illegal under any federal, state or local laws of the United States or
any other country having jurisdiction; and neither the Company nor any of
its Subsidiaries has participated, directly or indirectly, in any boycotts
or other similar practices in contravention of law affecting any of its
actual or potential customers.
(z) The Company meets, and on the Effective Date of the Registration
Statement and on each Closing Date will meet, the conditions for use of
Form S-3 under the Securities Act and the Rules.
5. Representations and Warranties of the Selling Stockholders. Each of the
Selling Stockholders, severally and not jointly, represents and warrants to each
Underwriter that:
(a) Such Selling Stockholder is, and on each Closing Date will be, the
sole lawful owner of the Shares to be sold by it hereunder, and has, and on
such date will have, good and marketable title to the Shares to be sold by
such Selling Stockholder hereunder, free and clear of any lien, charge,
claim, encumbrance, security interest, stockholders' agreement, voting
trust, restriction on transfer or other defect in title, except for the
stockholders' agreement and voting trust agreement described in the
Prospectus, provided that all restrictions on the sale of the Shares as
contemplated hereby have been waived and the purchasers of the Shares shall
acquire the Shares free of such agreements and restrictions as more fully
provided in Section 5(b) hereof.
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(b) Such Selling Stockholder has, and on each Closing Date will have,
full legal right, power and authority, and every approval required by law,
to sell, assign, transfer and deliver such Shares in the manner provided in
this Agreement; delivery of certificates for the Shares to be sold by such
Selling Stockholder pursuant hereto will, upon payment therefor, pass good
and valid title thereto to each Underwriter, free and clear of any lien,
charge, claim, encumbrance, security interest, stockholders' agreement,
voting trust, restriction on transfer or other defect in title; and there
are no outstanding options, warrants, rights or other agreements or
arrangements requiring such Selling Stockholder at any time to transfer any
Shares which may be sold to the Underwriters pursuant to this Agreement.
(c) Such Selling Stockholder has duly executed and delivered a power
of attorney (the "Power of Attorney"), in the form heretofore delivered to
the Representatives, appointing J. Xxxxxx Xxxxx and Xxxxxx X. Xxxx as such
Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact"), each of
them, together or individually, with full power and authority to execute,
deliver and perform this Agreement on behalf of such Selling Stockholder.
(d) Such Selling Stockholder has duly executed and delivered a custody
agreement (the "Custody Agreement"), in the form heretofore delivered to
the Representatives pursuant to which certificates in negotiable form for
the Shares to be sold by such Selling Stockholder under this Agreement were
deposited with Continental Stock Transfer & Trust Company, as a custodian
(the "Custodian"). The Custody Agreement and the Custodian's authority
thereunder and the appointment of the Attorneys-in-Fact are irrevocable and
the obligations of such Selling Stockholder hereunder and under the Custody
Agreement are not subject to termination by such Selling Stockholder,
except as provided in this Agreement, the Power of Attorney or the Custody
Agreement, or by operation of law, whether by the death or incapacity of
such Selling Stockholder (if such Selling Stockholder is an individual),
the death or incapacity of any trustee or executor or the termination of
any trust or estate (if such Selling Stockholder is a trust or estate), the
dissolution or liquidation of any corporation or partnership (if such
Selling Stockholder is a corporation or a partnership), or the occurrence
of any other event. If any event referred to in the preceding sentence
should occur before the delivery of the Shares hereunder, the certificates
for the Shares to be sold by such Selling Stockholder shall be delivered by
the Custodian on behalf of such Selling Stockholder in accordance with the
terms and conditions of this Agreement and the Custody Agreement, and
action taken by the Custodian pursuant to the Custody Agreement shall be as
valid as if such event had not occurred, whether or not the Custodian or
the Attorneys-in-Fact, or any one of them, shall have received notice of
such event.
(e) The execution, delivery and performance of this Agreement, the
Power of Attorney and the Custody Agreement and the consummation of the
transactions to be performed by such Selling Stockholder contemplated
hereby and thereby, including the delivery and sale of the Shares to be
delivered and sold by such Selling Stockholder hereunder and thereunder,
will not conflict with or result in a violation by such Selling Stockholder
of, or constitute a default under, any agreement, indenture or other
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instrument to which such Selling Stockholder is a party or by which it is
bound, or to which any of its properties is subject, nor will the
performance by such Selling Stockholder of its obligations hereunder or
thereunder violate any law, rule, administrative regulation, or decree of
any court or any governmental agency or body, having jurisdiction over such
Selling Stockholder or any of its properties or result in the creation or
imposition of any lien, charge, claim, security interest, encumbrance or
restriction whatsoever upon such Shares.
(f) Except for permits and similar authorizations required under the
Securities Act, the securities or Blue Sky laws of certain jurisdictions,
and such permits and authorizations which have been obtained, no consent,
approval, authorization or order of any court, governmental agency or body,
or financial institution is required in connection with the consummation of
the transactions to be performed by such Selling Stockholder contemplated
by this Agreement, including the delivery and sale of the Shares to be sold
by such Selling Stockholder.
(g) Each of this Agreement, the Power of Attorney and the Custody
Agreement has been duly and validly authorized, executed and delivered by
such Selling Stockholder and constitutes a legal, valid and binding
obligation of such Selling Stockholder, enforceable against such Selling
Stockholder in accordance with its terms, except (i) as the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles and (ii)
to the extent that rights to indemnity or contribution under this Agreement
may be limited by Federal and state securities laws or the public policy
underlying such laws.
(h) The sale by such Selling Stockholder of Shares pursuant hereto is
not prompted by any adverse information concerning the Company.
(i) Such Selling Stockholder has not since the filing of the
Registration Statement (i) sold, bid for, purchased, attempted to induce
any person to purchase, or paid anyone any compensation for soliciting
purchases of, the Common Stock or (ii) paid or agreed to pay to any person
any compensation for soliciting another to purchase any securities of the
Company, except for the sale of the Shares by the Selling Stockholders
under this Agreement.
(j) Such Selling Stockholder has not taken and will not take, directly
or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares.
(k) All information furnished to the Company by such Selling
Stockholder or on such Selling Stockholder's behalf for use in connection
with the preparation of the Registration Statement and Prospectus
(including, without limiting the generality of the foregoing, all
representations and warranties of such Selling Stockholder in such Selling
Stockholder's Power of Attorney and the information relating to such
Selling Stockholder which is set forth in the Registration Statement under
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the caption "Principal and Selling Stockholders") is true and correct and
does not omit any material fact necessary to make such information not
misleading.
6. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 7(A)(a) of this Agreement. The Registration
Statement shall have become effective no later than 5:00 p.m., New York
City time, on the date of this Agreement or such later time and date as
shall be consented to in writing by the Representatives.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives.
(c) The representations and warranties of the Company and the Selling
Stockholders contained in this Agreement and in the certificates delivered
pursuant to Section 6(d) and 6(e), respectively, shall be true and correct
when made and on and as of each Closing Date as if made on such date and
the Company and the Selling Stockholders shall have performed all covenants
and agreements and satisfied all the conditions contained in this Agreement
required to be performed or satisfied by it or them at or before such
Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of the chief executive or chief operating officer and the chief financial
officer or chief accounting officer of the Company to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that the representations
and warranties of the Company in this Agreement are true and correct on and
as of such Closing Date with the same effect as if made on such Closing
Date and the Company has performed all covenants and agreements and
satisfied all conditions contained in this Agreement required to be
performed or satisfied by it at or prior to such Closing Date.
(e) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of each Selling Stockholder, to the effect that such Selling Stockholder
has carefully examined the Registration Statement, the Prospectus and this
Agreement and that the representations and warranties of such Selling
Stockholder contained in this Agreement are true and correct as if made on
and as of such Closing Date, with the same effect as if made on such
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Closing Date, and such Selling Stockholder has performed all covenants and
agreements and satisfied all conditions contained in this Agreement
required to be performed or satisfied by such Selling Stockholder at or
prior to such Closing Date.
(f) The Representatives shall have received on the Effective Date, at
the time this Agreement is executed and on each Closing Date a signed
letter from Xxxxx Xxxxxxxx LLP addressed to the Representatives and dated,
respectively, the Effective Date, the date of this Agreement and each such
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Securities Act and the Rules, that the response to Item 10 of the
Registration Statement is correct insofar as it relates to them and stating
in effect that:
(i) in their opinion the audited financial statements and the
schedules to the financial statements included or incorporated by
reference in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and the
Rules;
(ii) on the basis of a reading of the amounts included in the
Registration Statement and the Prospectus under the headings "Summary
Consolidated Financial Information," "Selected Consolidated Financial
Information," "Capitalization" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations," carrying
out certain procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter, a reading of the minutes of the meetings of the
stockholders and directors of the Company (including committees
thereof), and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company, as
to transactions and events subsequent to the date of the latest
audited financial statements, except as disclosed in the Registration
Statement and the Prospectus, nothing came to their attention which
caused them to believe that:
(A) the amounts in "Summary Consolidated Financial
Information," "Selected Consolidated Financial Information,"
"Capitalization" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations," included in the
Registration Statement and the Prospectus do not agree with the
corresponding amounts in the audited financial statements from
which such amounts were derived; or
(B) (x) there were, at a specified date not more than five
business days prior to the date of the letter, any changes in the
short-term or long-term debt of the Company or capital stock of
the Company or any decreases in net assets or in working capital
or the stockholders' equity in the Company, as compared with the
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amounts shown on the Company's audited November 30, 1995 balance
sheet included in the Registration Statement, or (y) for the
period from November 30, 1995 to such specified business date not
more than five business days prior to the date of this letter,
there were any decreases, as compared with the corresponding
period in the preceding year, in net revenues or in the total or
per share amounts of net income in which case the Company shall
deliver to the Representatives a letter containing an explanation
by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives or is
set forth in or contemplated by the Registration Statement.
(iii) on the basis of a reading of the pro forma financial
statements included in the Registration Statement and the Prospectus,
carrying out certain procedures that would not necessarily reveal
matters of significance with respect to the comments set forth in this
clause (iii), inquiries of certain officials of the Company 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 pro forma financial statements, nothing
came to their attention that caused them to believe that the pro forma
financial statements included in the Prospectus do not comply in form
in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X, or that the pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of those statements; and
(iv) they have performed certain other procedures as a result of
which they have determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company) set forth in the Registration
Statement and reasonably specified by the Representatives agrees with
the accounting records of the Company.
References to the Registration Statement and the Prospectus in
this paragraph (f) are to such documents as amended and supplemented
at the date of the letter.
(g) The Representatives shall have received on each Closing Date an
opinion from Bachner, Tally, Xxxxxxx & Xxxxxx LLP, counsel for the Company
and the Selling Stockholders, addressed to the Representatives, dated such
Closing Date, stating in effect that:
(A) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of
Delaware. To the best of such counsel's knowledge, except for the
Subsidiaries, the Company has no other subsidiary and does not
control, directly or indirectly, any corporation, partnership, joint
venture, association or other business organization. Each of the
Subsidiaries has been duly organized and is validly existing as a
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corporation in good standing under the laws of the jurisdiction of its
organization. Each of the Company and its Subsidiaries is duly
qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or
properties (owned, leased or licensed) or the nature of its businesses
makes such qualification necessary, except for such jurisdictions
where the failure to so qualify would not have a material adverse
effect on the assets or properties, business, results of operations,
prospects or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole.
(B) Each of the Company and its Subsidiaries has all requisite
power and authority to own, lease and license its assets and
properties and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus; and the
Company has all requisite corporate power and authority and all
necessary authorizations, approvals, consents, orders, licenses,
certificates and permits, other than those required under the state
Blue Sky laws, to enter into, deliver and perform this Agreement.
(C) The Company has authorized and issued capital stock as set
forth in the Registration Statement and the Prospectus. The
certificates evidencing the Shares are in due and proper legal form
and have been duly issued by the Company. All of the outstanding
shares of Common Stock of the Company have been duly and validly
authorized and have been duly and validly issued and are fully paid
and nonassessable and none of them was issued in violation of any
preemptive or other similar right. To the best of such counsel's
knowledge, except as disclosed in the Registration Statement and the
Prospectus, there is no outstanding option, warrant or other right
calling for the issuance of, and no commitment, plan or arrangement to
issue, any share of stock of the Company or any security convertible
into, exercisable for, or exchangeable for stock of the Company. The
Common Stock and the Shares conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(D) The agreement of Xx. Xxxxxx and Xxxxx Investment Banking
stating that, for a period of 180 days from the date of this Agreement
they will not, without Xxxxxxxxxxx'x prior written consent, directly
or indirectly offer, sell (including "short sales"), assign, encumber
or Transfer, or contract to Transfer, any shares of Common Stock, or
any other securities convertible into or exchangeable for shares of
Common Stock or any other equity securities owned by them, except for
(i) sales to the several Underwriters pursuant to this Agreement, (ii)
privately negotiated sales to a Restricted Person of the Company's
Common Stock, provided that such Restricted Person agrees in writing
to be bound by the foregoing restrictions, or (iii) pursuant to will
or the laws of intestate succession, provided the transferee agrees in
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writing to be bound by such restrictions, has been duly and validly
executed and delivered by such persons and constitutes the legal,
valid and binding obligation of each such person enforceable against
each such person in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(E) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except
(i) as such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles and (ii) to the extent that rights
to indemnity or contribution under this Agreement may be limited by
Federal or state securities laws or the public policy underlying such
laws.
(F) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including, without limitation, the
sale by the Selling Stockholders of the Shares) will give rise to a
right to terminate or accelerate the due date of any payment due
under, or violate or conflict with or result in the breach of any term
or provision of, or constitute a default (or any event which with
notice or lapse of time, or both, would constitute a default) under,
or require consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or
assets of the Company or any of its Subsidiaries pursuant to the terms
of, any indenture, mortgage, deed of trust, note or other agreement or
instrument of which such counsel is aware and to which the Company or
any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries or any of its respective properties or businesses is
bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation of which such counsel is aware or violate
any provision of the Articles of Incorporation or the By-laws of the
Company or the charter or by-laws of any of the Subsidiaries.
(G) To the best of such counsel's knowledge, no default exists,
and no event has occurred which with notice or lapse of time, or both,
would constitute a default, in the due performance and observance of
any term, covenant or condition by the Company or any of its
Subsidiaries of any indenture, mortgage, deed of trust, note or any
other agreement or instrument to which the Company or any of its
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Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of their respective assets or properties or
businesses may be bound or affected, where the consequences of such
default would have a material and adverse effect on the assets,
properties, business, results of operations, prospects or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as
a whole.
(H) To the best of such counsel's knowledge, neither the Company
nor any of its Subsidiaries is in violation of any term or provision
of its Articles of Incorporation or By-laws, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation,
where the consequences of such violation would have a material adverse
effect on the assets or properties, businesses, results of operations,
prospects or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole.
(I) No consent, approval, authorization or order of any court or
governmental agency or body is required for the performance of this
Agreement by the Company or the consummation of the transactions
contemplated hereby, except such as have been obtained under the
Securities Act and such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the several Underwriters.
(J) To the best of such counsel's knowledge, there is no
litigation or governmental or other proceeding or investigation before
any court or before or by any public body or board pending or
threatened against, or involving the assets, properties or businesses
of, the Company or any of its Subsidiaries which might have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Company and its Subsidiaries, taken as a whole.
(K) The statements in the Prospectus under the captions
"Description of Capital Stock," "Shares Eligible for Future Sale,"
"Management -- Employment Agreements" and "Principal and Selling
Stockholders" insofar as such statements constitute a summary of
documents referred to therein or matters of law, are fair summaries in
all material respects and accurately present the information called
for with respect to such documents and matters. All contracts and
other documents required to be filed as exhibits to, or described in,
the Registration Statement have been so filed with the Commission or
are fairly described in the Registration Statement, as the case may
be.
(L) The Registration Statement, all preliminary prospectuses and
the Prospectus and each amendment or supplement thereto (except for
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the financial statements and schedules and other financial data
included therein, as to which such counsel expresses no opinion)
comply as to form in all material respects with the requirements of
the Securities Act and the Rules. To such counsel's knowledge, the
documents filed by the Company under the Exchange Act and incorporated
by reference in the Registration Statement and the Prospectus or any
amendment or supplement thereto (except for the financial statements
and schedules and other financial and statistical data included
therein, as to which such counsel expresses no opinion) at the time
they were filed complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder.
(M) The Registration Statement has become effective under the
Securities Act, and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or, to such counsel's
knowledge, are threatened or contemplated.
(N) Assuming that the Underwriters acquire their respective
interests in the Shares to be sold by the Selling Stockholders in good
faith and without notice of any adverse claims (within the meaning of
Section 8-302 of the Uniform Commercial Code), upon delivery to the
Underwriters of such Shares registered in their names, the
Underwriters will acquire good and marketable title to such Shares
free and clear of all liens, charges, claims, security interests,
encumbrances, pledges, stockholders' agreements, voting trusts and any
other restrictions whatsoever.
(O) To the best of such counsel's knowledge, the execution,
delivery and performance of this Agreement, the Power of Attorney and
the Custody Agreement and the consummation of the transactions to be
performed by each such Selling Stockholder contemplated hereby and
thereby (including, without limitation, the delivery and sale of the
Shares to be delivered and sold by such Selling Stockholder hereunder
and thereunder), will not give rise to a right to terminate or
accelerate the due date of any payment due under, or violate or
conflict with or result in the breach of any term or provision of, or
constitute a default (or any event which with notice or lapse of time,
or both, would constitute a default) under, or require consent or
waiver under, or result in the execution or imposition of any lien,
charge or encumbrance upon any properties or assets of such Selling
Stockholder pursuant to the terms of any indenture, mortgage, deed of
trust, note or other agreement or instrument of which such counsel is
aware and to which such Selling Stockholder is a party or by which it
or any of such Selling Stockholder's properties or businesses is
bound, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation of which such counsel is aware or result
in the creation of imposition of any lien, charge, claim, encumbrance,
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security interest or restriction whatsoever upon the Shares to be sold
by such Selling Stockholder.
(P) No consent, approval, authorization or order of any court,
governmental agency or body or financial institution is required in
connection with the performance of this Agreement by each Selling
Stockholder or the consummation of the transactions contemplated
hereby, including the delivery and sale of the Shares to be delivered
and sold by such Selling Stockholder, except such as have been
obtained under the Securities Act and such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the several Underwriters.
(Q) Each of this Agreement, the Power of Attorney and the Custody
Agreement has been duly and validly, executed and delivered by each
Selling Stockholder and constitutes a legal, valid and binding
obligation of such Selling Stockholder, enforceable against such
Selling Stockholder in accordance with its terms, except (i) as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and (ii) to the extent
that rights to indemnity or contribution under this Agreement may be
limited by Federal and state securities laws or the public policy
underlying such laws.
To the extent deemed advisable by such counsel, they may rely as to matters
of fact on certificates of responsible officers of the Company, the Selling
Stockholders and public officials and on the opinions of other counsel
satisfactory to the Representatives as to matters which are governed by laws
other than the laws of the State of New York, the General Corporation Law of the
State of Delaware and the Federal laws of the United States; provided that such
counsel shall state that in their opinion the Underwriters and they are
justified in relying on such other opinions. Copies of such certificates and
other opinions shall be furnished to the Representatives and counsel for the
Underwriters.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company and the
Selling Stockholders, representatives of the Representatives and representatives
of the independent certified public accountants of the Company, at which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as specified in the foregoing opinion), on the basis of the
foregoing, no facts have come to the attention of such counsel which lead such
counsel to believe that the Registration Statement at the time it became
effective (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need
express no belief) contained any untrue statement of a material fact or omitted
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to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as amended or
supplemented (except with respect to the financial statements and notes and
schedules thereto and other financial data, as to which such counsel need
express no belief) on the date thereof contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(h) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their counsel
and the Underwriters shall have received from Xxxxxxx Xxxx & Xxxxx a
favorable opinion, addressed to the Representatives and dated each Closing
Date, with respect to the Shares, the Registration Statement and the
Prospectus, and such other related matters, as the Representatives may
reasonably request, and the Company shall have furnished to Xxxxxxx Xxxx &
Xxxxx such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(i) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives, and dated such Closing Date,
of an executive officer of the Company to the effect that the signer of
such certificate has reviewed and understands the provisions of Section
517.075 of the Florida Statutes, and represents that the Company has
complied, and at all times will comply, with all provisions of Section
517.075 and further, that as of such Closing Date, neither the Company nor
any of its affiliates does business with the government of Cuba or with any
person or affiliate located in Cuba.
(j) The Representatives shall have received from each of the
stockholders listed on Schedule IV hereto and each director and executive
officer of the Company the enforceable written agreements described in
Section 4(o).
(k) On each Closing Date, a certificate, dated such Closing Date and
addressed to you, signed by or on behalf of each of the Selling
Stockholders to the effect that the representations and warranties of such
Selling Stockholders in this Agreement are true and correct, as if made at
and as of each Closing Date, and such Selling Stockholder has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied prior to each Closing Date.
(l) The Company shall have furnished or caused to be furnished to the
Representatives such further certificates and documents as the
Representatives shall have reasonably requested.
7. Covenants of the Company. (A) The Company covenants and agrees as
follows:
(a) The Company shall prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement,
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or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act, and shall promptly advise the Representatives (i)
when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information,
(iii) of the prevention or suspension of the use of any preliminary
prospectus or the Prospectus or of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company shall not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representatives a copy for their review prior to filing and shall not file
any such proposed amendment or supplement to which the Representatives
reasonably object. The Company shall use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any event
occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it shall be necessary to amend or supplement the Prospectus to comply
with the Securities Act or the Rules, the Company promptly shall prepare
and file with the Commission, subject to the second sentence of paragraph
(a) of this Section 7(A), an amendment or supplement which shall correct
such statement or omission or an amendment which shall effect such
compliance.
(c) The Company shall make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter of the Company during which the Effective Date occurs (or 90
days if such 12-month period coincides with the Company's fiscal year), an
earnings statement (which need not be audited) of the Company, covering
such 12-month period, which shall satisfy the provisions of Section 11(a)
of the Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Securities
Act or the Rules, as many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
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(e) The Company shall cooperate with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale under the
laws of such jurisdictions as the Representatives may designate and shall
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the Company shall not
be required in connection therewith, as a condition thereof, to qualify as
a foreign corporation or to execute a general consent to service of process
in any jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(f) For a period of five years after the date of this Agreement, the
Company shall supply to the Representatives, and to each other Underwriter
who may so request in writing, copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock and
to furnish to the Representatives a copy of each annual or other report it
shall be required to file with the Commission.
(g) Without the prior written consent of Xxxxxxxxxxx, for a period of
180 days after the date of this Agreement, the Company shall not directly
or indirectly, offer, sell (including "short sales"), assign, encumber or
Transfer, or contract to Transfer, any shares of Common Stock, or any other
securities convertible into or exchangeable for shares of Common Stock, or
any other equity securities of the Company, except for (i) the issuance of
shares of Common Stock pursuant to stock options outstanding on the date
hereof or the issuance of shares of Common Stock or stock options thereon
pursuant to the Company's 1992 Stock Option Plan, as amended, (the "Plan"),
(ii) the issuance of shares of Common Stock in connection with the
Company's acquisition (the "GeoDemX Acquisition") of the assets of the
former GeoDemX Corporation, and (iii) the issuance of shares of Common
Stock in connection with any acquisition of another entity. In the event
that during this period, (i) any shares of Common Stock are issued pursuant
to the Plan pursuant to stock options not outstanding on the date hereof,
(ii) any shares of Common Stock are issued in connection with any
acquisition of another entity, or (iii) any registration is effected on
Form S-8 or on any successor form pursuant to stock options not outstanding
on the date hereof, the Company shall obtain the enforceable written
agreement of such grantee or purchaser or holder of such securities that,
for a period of 180 days after the date of this Agreement, such person will
not directly or indirectly, without the prior written consent of
Xxxxxxxxxxx, offer, sell (including "short sales"), assign, encumber or
Transfer, or contract to Transfer or exercise any registration rights with
respect to, any shares of Common Stock (or any other securities convertible
into or exchangeable for any shares of Common Stock, or any other equity
securities) owned by such person.
(h) The Company shall cause each director and executive officer of the
Company, and each stockholder set forth on Schedule IV to this Agreement to
deliver to the Representatives his or her enforceable written agreement
that, except, in the case of a Selling Stockholder, for the sale of the
Shares to be sold by such Selling Stockholder pursuant to the Registration
Statement, he or she will not, for a period of 180 days after the date of
this Agreement, directly or indirectly, without the prior written consent
of Xxxxxxxxxxx, offer, sell (including "short sales"), assign, encumber or
Transfer, or contract to Transfer any shares of Common Stock or any other
-23-
securities convertible into or exercisable or exchangeable for, shares of
Common Stock, or any other equity securities of the Company except for (i)
sales to the several Underwriters pursuant to this Agreement, (ii)
privately negotiated sales to a Restricted Person of the Company's Common
Stock, provided that such Restricted Person agrees in writing to be bound
by the foregoing restrictions, or (iii) pursuant to will or the laws of
intestate succession, provided the transferee agrees in writing to be bound
by such restrictions.
(i) On or before completion of this offering, the Company shall make
all filings required under applicable securities laws and by the American
Stock Exchange, Inc. (including any required registration under the
Exchange Act).
(j) The Company shall file timely and accurate reports in accordance
with the provisions of Florida Statutes Section 517.075, or any successor
provision, and any regulations promulgated thereunder, if at any time after
the Effective Date, the Company or any of its affiliates commences engaging
in business with the government of Cuba or any person or affiliate located
in Cuba.
(B) The Selling Stockholders agree to pay, or reimburse if paid
by the Representatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all costs and
expenses incident to the public offering of the Shares and the
performance of the obligations of the Company and of the Selling
Stockholders under this Agreement including those relating to: (i) the
preparation, printing, filing and distribution of the Registration
Statement including all exhibits thereto, each preliminary prospectus,
the Prospectus, all amendments and supplements to the Registration
Statement, the Prospectus, and the printing, filing and distribution
of this Agreement; (ii) the fees and disbursements of counsel for the
Company and the Selling Stockholders and of the Company's independent
public accountants; (iii) the preparation and delivery of certificates
for the Shares to the Underwriters; (iv) the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of the various jurisdictions referred to in Section
7(A)(e), including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such registration and
qualification and the preparation, printing, distribution and shipment
of preliminary and supplementary Blue Sky memoranda; (v) the
furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments or supplements to the
Prospectus, and of the several documents required by this Section to
be so furnished, as may be reasonably requested for use in connection
with the offering and sale of the Shares by the Underwriters or by
dealers to whom Shares may be sold; (vi) the filing fees of the
National Association of Securities Dealers, Inc. in connection with
its review of the terms of the public offering; (vii) the furnishing
(including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of all reports and information required
by Section 7(A)(f); (viii) all transfer taxes, if any, with respect to
the sale and delivery of the Shares by the Selling Stockholders to the
Underwriters. Subject to the provisions of Section 10, the
Underwriters agree to pay, whether or not the transactions
contemplated hereby are consummated or this Agreement is terminated,
-24-
all costs and expenses incident to the performance of the obligations
of the Underwriters under this Agreement not payable by the Selling
Stockholders pursuant to the preceding sentence, including, without
limitation, the fees and disbursements of counsel for the
Underwriters.
8. Indemnification.
(a) The Company and each Selling Stockholder agree, jointly and severally,
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act against any and all losses, claims, damages
and liabilities, joint or several (including any reasonable investigation, legal
and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they, or any of them, may become subject under the Securities Act, the Exchange
Act or other Federal or state law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement, the
Prospectus or any amendment thereof or supplement thereto, or arise out of or
are based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that such indemnity shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities arising from the sale of
the Shares to any person by such Underwriter if such untrue statement or
omission or alleged untrue statement or omission was made in such preliminary
prospectus, the Registration Statement, the Prospectus, or such amendment or
supplement, and was contained in the last paragraph of the cover page of the
Prospectus, in the paragraph relating to stabilization on the inside front cover
page of the Prospectus or under the caption "Underwriting" in the Prospectus (to
the extent such statements relate to the Underwriters). Notwithstanding the
foregoing, the liability of the Selling Stockholders pursuant to the provisions
of this Section 8(a) shall be limited to an amount equal to the aggregate net
proceeds received by each Selling Stockholder from the sale of the Shares sold
by each Selling Stockholder hereunder. This indemnity agreement will be in
addition to any liability which the Company and each Selling Stockholder may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Stockholders, each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, each director of the Company, and each
officer of the Company who signs the Registration Statement, to the same extent
as the foregoing indemnities from the Company or such Selling Stockholder to
each Underwriter, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which was made in any preliminary
prospectus, the Registration Statement, the Prospectus, or any amendment thereof
or supplement thereto, and was contained in the last paragraph of the cover page
of the Prospectus, in the paragraph relating to stabilization on the inside
-25-
front cover page of the Prospectus or under the caption "Underwriting" in the
Prospectus (to the extent such statements relate to the Underwriters); provided,
however, that the obligation of each Underwriter to indemnify the Company or any
Selling Stockholder (including any controlling person, director or officer
thereof), as the case may be, shall be limited to the net proceeds received by
the Company or the Selling Stockholder, as the case may be, from such
Underwriter.
(c) Any party that proposes to assert the right to be indemnified under
this Section will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section, notify each
such indemnifying party of the commencement of such action, suit or proceeding,
enclosing a copy of all papers served. No indemnification provided for in
Section 8(a) or 8(b) shall be available to any party who shall fail to give
notice as provided in this Section 8(c) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was materially prejudiced by the failure to give such notice, but the omission
so to notify such indemnifying party of any such action, suit or proceeding
shall not relieve it from any liability that it may have to any indemnified
party for contribution or otherwise than under this Section. In case any such
action, suit or proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and the
approval by the indemnified party of such counsel, the indemnifying party shall
not be liable to such indemnified party for any legal or other expenses, except
as provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized in writing by the indemnifying parties,
(ii) the indemnified party shall have reasonably concluded that there may be a
conflict of interest between the indemnifying parties and the indemnified party
in the conduct of the defense of such action (in which case the indemnifying
parties shall not have the right to direct the defense of such action on behalf
of the indemnified party) or (iii) the indemnifying parties shall not have
employed counsel, as provided above, to assume the defense of such action within
a reasonable time after notice of the commencement thereof, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be liable for any
settlement of any action, suit, proceeding or claim effected without its written
consent.
9. Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 8(a) or 8(b)
for any reason is unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b), then each indemnifying party shall contribute
-26-
to the aggregate losses, claims, damages and liabilities (including any
investigation, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claims asserted) to which the indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Selling Stockholders on the one hand and the Underwriters on the other from the
offering of the Shares or, if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Selling
Stockholders and the Underwriters shall be deemed to be in the same proportion
as (x) the total proceeds from the offering (net of underwriting discounts but
before deducting expenses) received by the Selling Stockholders, as set forth in
the table on the cover page of the Prospectus, bear to (y) the underwriting
discounts received by the Underwriters, as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the Selling
Stockholders or the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
related to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 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. Notwithstanding the provisions of
this Section 9, (i) in no case shall any Underwriter (except as may be provided
in the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder less the amount of any damages which such Underwriter has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission which was made in any preliminary
prospectus, the Registration Statement, the Prospectus or any amendment thereof
or supplement thereto; and (ii) the Company shall be liable and responsible for
any amount in excess of the amount set forth in clause (i) of this sentence; and
(iii) in no case shall any Selling Stockholder be liable and responsible for any
amount in excess of the aggregate net proceeds of the sale of the Shares
received by such Selling Stockholder hereunder; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 9, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as such Underwriter and each person, if
any, who controls the Company within the meaning of the Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to clauses (i), (ii) and (iii) in the immediately preceding sentence
of this Section 9. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section, notify such party or parties from whom
-27-
contribution may be sought, but the omission so to notify such party or parties
from whom contribution may be sought shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
10. Termination. This Agreement may be terminated with respect to the
Shares to be purchased on a Closing Date by the Representatives notifying the
Company and the Selling Stockholders at any time:
(a) in the absolute discretion of the Representatives at or before any
Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representatives will in the future materially disrupt,
the securities markets; (ii) if the Company or any of its Subsidiaries
shall have sustained a loss or interference with its business by fire,
flood, accident, hurricane, earthquake, theft, sabotage or other calamity
or malicious act which is material to the Company and its Subsidiaries,
taken as a whole, whether or not said loss shall have been insured, or by
court or governmental action, order or decree which will, in the opinion of
the Representatives, make it inadvisable or impractical to proceed with the
offering; (iii) if there has been, since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
assets or properties, business, results of operations, prospects or
condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole, whether or not arising in the ordinary course of
business; (iv) if there has occurred any new outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in the
judgment of the Representatives, inadvisable or impractical to proceed with
the offering; (v) if there shall be such a material adverse change in
general financial, political or economic conditions in the United States or
elsewhere or the effect of international conditions on the financial
markets in the United States is such as to make it, in the judgment of the
Representatives, inadvisable or impractical to proceed with the offering;
(vi) if trading in the Shares has been suspended by the Commission or
trading generally on The New York Stock Exchange, Inc., on the American
Stock Exchange, Inc. or the National Association of Securities Dealers,
Inc. Automated Quotation National Market has been suspended or limited, or
minimum or maximum ranges for prices for securities shall have been fixed,
or maximum ranges for prices for securities have been required, by said
exchanges or automated quotation system or by order of the Commission, the
National Association of Securities Dealers, Inc., or any other governmental
or regulatory authority; or (vii) if a banking moratorium has been declared
by any state or Federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 6 shall not have been fulfilled when and as required
by this Agreement.
If this Agreement is terminated pursuant to any of its provisions, neither
the Company nor any of the Selling Stockholders shall be under any liability to
any Underwriter (except as otherwise provided in Section 7(B)), and no
-28-
Underwriter shall be under any liability to the Company or the Selling
Stockholders except that (y) if this Agreement is terminated by the
Representatives because of any failure, refusal or inability on the part of the
Company or the Selling Stockholders to comply with the terms or to fulfill any
of the conditions of this Agreement, the Company will reimburse the Underwriters
for all out-of-pocket expenses (including the reasonable fees and disbursements
of their counsel) incurred by them in connection with the proposed purchase and
sale of the Shares or in contemplation of performing their obligations hereunder
and (z) no Underwriter who shall have failed or refused to purchase the Shares
agreed to be purchased by it under this Agreement, without some reason
sufficient hereunder to justify cancellation or termination of its obligations
under this Agreement, shall be relieved of liability to the Company, the Selling
Stockholders or to the other Underwriters for damages occasioned by its failure
or refusal.
11. Substitution of Underwriters. If one or more of the Underwriters shall
fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 10) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase such
Shares on the terms herein set forth in proportion to their respective
obligations hereunder; provided, that in no event shall the maximum number
of Shares that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 11 by more than one-ninth of such
number of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute underwriters
reasonably satisfactory to the Representatives to purchase such Shares upon
the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have the
right to postpone the applicable Closing Date for a period of not more than five
business days in order that necessary changes and arrangements (including any
necessary amendments or supplements to the Registration Statement or Prospectus)
may be effected by the Representatives and the Company. If the number of Shares
to be purchased on such Closing Date by such defaulting Underwriter or
-29-
Underwriters shall exceed 10% of the Shares that all the Underwriters are
obligated to purchase on such Closing Date, and none of the nondefaulting
Underwriters or the Company shall make arrangements pursuant to this Section
within the period stated for the purchase of the Shares that the defaulting
Underwriters agreed to purchase, this Agreement shall terminate with respect to
the Shares to be purchased on such Closing Date without liability on the part of
any nondefaulting Underwriter to the Company or the Selling Stockholders, and
without liability on the part of the Company or the Selling Stockholders, except
in both cases as provided in Sections 7(B), 8, 9 and 10. The provisions of this
Section shall not in any way affect the liability of any defaulting Underwriter
to the Company, the Selling Stockholders or to the nondefaulting Underwriters
arising out of such default. A substitute underwriter hereunder shall become an
Underwriter for all purposes of this Agreement.
12. Miscellaneous. The respective agreements, representations, warranties,
indemnities and other statements of the Company or its directors or officers, of
the Selling Stockholders and of the Underwriters set forth in or made pursuant
to this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or the
Selling Stockholders or any of the officers, directors or controlling persons
referred to in Sections 8 and 9 hereof, and shall survive delivery of and
payment for the Shares. The provisions of Sections 7(B), 8, 9 and 10 shall
survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the Underwriters,
the Company and the Selling Stockholders and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of persons
controlling any of the Underwriters and the Company, and directors and officers
of the Company, and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser of Shares from any
Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone, telex or facsimile transmission if subsequently
confirmed in writing, (a) if to the Representatives, c/o Oppenheimer & Co.,
Inc., Xxxxxxxxxxx Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx; (b) if to the Company or the Selling Stockholders,
to the Company's agent for service as such agent's address appears on the cover
page of the Registration Statement.
-30-
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflict of laws.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among
us.
Very truly yours,
AMERICAN LIST CORPORATION
By:_________________________
Name:
Title:
SELLING STOCKHOLDERS NAMED ON
SCHEDULE II ANNEXED HERETO
Confirmed:
By:_________________________
XXXXXXXXXXX & CO., INC. Attorney-in-Fact for the
XXXXXX XXXX Selling Stockholders listed
on Schedule II annexed hereto
Acting severally on behalf of themselves
and as representatives of the several
Underwriters named in Schedule I annexed
hereto.
By: XXXXXXXXXXX & CO., INC.
By:______________________________
Name:
Title:
-31-
SCHEDULE I
Number of Firm
Name Shares to Be Purchased
---- ----------------------
Xxxxxxxxxxx & Co., Inc.
Xxxxxx Xxxx
---------------
Total
===============
SCHEDULE II
SELLING STOCKHOLDERS
Number of Firm
Selling Stockholder Shares to be Sold
------------------- -----------------
X.X. Xxxxx Investment Banking Corp. 1,000,000
Xxxxxx Xxxxxx 200,000
---------
Total 1,200,000
=========
SCHEDULE III
OPTION SELLING STOCKHOLDER
Number of Option
Selling Stockholder Shares to be Sold
------------------- -----------------
X.X. Xxxxx Investment Banking Corp. 180,000
-------
Total 180,000
=======
SCHEDULE IV
STOCKHOLDERS EXECUTING CERTAIN
AGREEMENTS PURSUANT TO SECTION 7(A)(h)
X.X. Xxxxx Investment Banking Corp.
