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EXHIBIT 1
YOUNG INNOVATIONS, INC.
2,300,000 Shares of Common Stock
UNDERWRITING AGREEMENT
_______________, 1997
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXX GULL XXXXXXX & XXXXXXXX INC.
As Representatives of the Several Underwriters
Identified in Schedule I Annexed Hereto
c/o Xxxxxx X. Xxxxx & Co. Incorporated
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
SECTION 1. INTRODUCTORY. Young Innovations, Inc., a Missouri
corporation (the "COMPANY"), proposes to sell 2,000,000 shares (the "FIRM
SHARES") of common stock, $.01 par value per share (the "COMMON STOCK"), to the
several underwriters identified in Schedule I annexed hereto (the
"UNDERWRITERS"), who are acting severally and not jointly. In addition, the
Company has agreed to grant to the Underwriters an option to purchase up to
300,000 additional shares of Common Stock (the "OPTIONAL SHARES") as provided
in section 5 hereof. The Firm Shares and, to the extent such option is
exercised, the Optional Shares are hereinafter collectively referred to as the
"SHARES."
You, as representatives of the Underwriters (the "REPRESENTATIVES"),
have advised the Company that the Underwriters propose to make a public
offering of their respective portions of the Shares as soon hereafter as in
your judgment is advisable and that the public offering price of the Shares
initially will be $_____ per share.
The Company hereby confirms its agreements with the Underwriters as
follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
PRINCIPAL SHAREHOLDER. The Company represents and warrants to, and agrees
with, the several Underwriters, and shall be deemed to represent and warrant to
the several Underwriters on each Closing Date (as hereinafter defined), that:
(a) Each of the Company and the subsidiaries of the Company that are listed
on Exhibit 21.1 of the Registration Statement (as hereinafter defined)
(individually, a
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"SUBSIDIARY" and collectively, the "SUBSIDIARIES") has been duly
incorporated and is validly existing as a corporation and in good
standing under the laws of its jurisdiction of incorporation, with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as presently conducted and described in the
Prospectus (as hereinafter defined) and the Registration Statement; each
of the Company and the Subsidiaries is duly registered and qualified to
do business as a foreign corporation under the laws of, and is in good
standing as such in, each jurisdiction in which such registration or
qualification is required, except where the failure to so register or
qualify would not have a material adverse effect on the condition
(financial or other), business, property, net worth, results of
operations or prospects of the Company and the Subsidiaries, taken as a
whole ("MATERIAL ADVERSE EFFECT"); and no proceeding has been instituted
in any such jurisdiction revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification.
Complete and correct copies of the articles of incorporation and
by-laws, as amended or restated ("ARTICLES OF INCORPORATION" and
"BY-LAWS," respectively), of the Company and each of the Subsidiaries as
in effect on the date hereof have been delivered to the Representatives,
and no changes thereto will be made on or subsequent to the date hereof
and prior to each Closing Date.
(b) The shares of Common Stock issued and outstanding immediately prior to
the issuance and sale of the Shares to be sold by the Company hereunder
as set forth in the Prospectus have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus and the Registration Statement.
There are no preemptive, preferential or, except as described in the
Prospectus, other rights to subscribe for or purchase any shares of
Common Stock (including the Shares), and no shares of Common Stock have
been issued in violation of such rights. The Shares to be issued and
sold by the Company to the Underwriters have been duly authorized and,
when issued, delivered and paid for pursuant to this Agreement, will be
validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus and the Registration
Statement. The delivery of certificates for the Shares to be issued and
sold by the Company hereunder and payment therefor pursuant to the terms
of this Agreement will pass valid title to such Shares to the
Underwriters, free and clear of any lien, claim, encumbrance or defect
in title. Except as described in the Prospectus, there are no
outstanding options, warrants or other rights of any description,
contractual or otherwise, entitling any person to be issued any class of
security by the Company or any Subsidiary, and there are no holders of
Common Stock or other securities of the Company or any Subsidiary, or of
securities that are convertible or exchangeable into Common Stock or
other securities of the Company or any Subsidiary, that have rights to
the registration of such Common Stock or securities under the Securities
Act of 1933, as amended, and the regulations
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thereunder (together, the "ACT") or the securities laws or regulations
of any of the states (the "BLUE SKY LAWS").
(c) Except for the Subsidiaries, and as otherwise set forth in the
Prospectus, the Company has no subsidiaries and does not own any equity
interest in or control, directly or indirectly, any other corporation,
limited liability company, partnership, joint venture, association,
trust or other business organization. The Company owns directly or
indirectly all of the issued and outstanding capital stock of each
Subsidiary, free and clear of any and all liens, claims, encumbrances or
security interests, and all such capital stock has been duly authorized
and validly issued and is fully paid and nonassessable. There are no
outstanding options, warrants or other rights of any description,
contractual or otherwise, entitling any person to subscribe for or
purchase any shares of capital stock of any Subsidiary.
(d) The Company has full corporate power and authority to enter into and
perform this Agreement, and the execution and delivery by the Company of
this Agreement and the performance by the Company of its obligations
hereunder and the consummation of the transactions described herein,
have been duly authorized with respect to the Company by all necessary
corporate action and will not: (i) violate any provisions of the
Articles of Incorporation or By-laws of the Company or any Subsidiary;
(ii) violate any provisions of, or result in the breach, modification or
termination of, or constitute a default under, any provision of any
agreement, lease, franchise, license, indenture, permit, mortgage, deed
of trust, evidence of indebtedness or other instrument to which the
Company or any Subsidiary is a party or by which the Company or any
Subsidiary, or any property owned or leased by the Company or any
Subsidiary, may be bound or affected; (iii) violate any statute,
ordinance, rule or regulation applicable to the Company or any
Subsidiary, or order or decree of any court, regulatory or governmental
body, arbitrator, administrative agency or instrumentality of the United
States or other country or jurisdiction having jurisdiction over the
Company or any Subsidiary; or (iv) result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary. No consent, approval, authorization or other
order of any court, regulatory or governmental body, arbitrator,
administrative agency or instrumentality of the United States or other
country or jurisdiction is required for the execution and delivery of
this Agreement by the Company, the performance of its obligations
hereunder or the consummation of the transactions contemplated hereby,
except for compliance with the Act, the Securities Exchange Act of 1934,
as amended, and the regulations thereunder (together, the "EXCHANGE
ACT"), the Blue Sky Laws applicable to the public offering of the Shares
by the several Underwriters and the clearance of such offering and the
underwriting arrangements evidenced hereby with the National Association
of Securities Dealers, Inc. (the "NASD"). This
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Agreement has been duly executed and delivered by and on behalf of the
Company and is a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as
enforceability of such agreements may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally.
(e) A registration statement on Form S-1 (Reg. No. 333-34971) with respect
to the Shares, including a preliminary form of prospectus, has been
carefully prepared by the Company in conformity with the requirements of
the Act, has been filed with the Securities and Exchange Commission (the
"COMMISSION") and has been declared effective under the Act. Such
registration statement, as finally amended and revised at the time such
registration statement was or is declared effective by the Commission
(including the information contained in the form of final prospectus, if
any, filed with the Commission pursuant to Rule 424(b) and Rule 430A
under the Act and deemed to be part of the registration statement if the
registration statement has been declared effective pursuant to Rule
430A(b)) and as thereafter amended by post-effective amendment, if any,
is herein referred to as the "REGISTRATION STATEMENT." The related
final prospectus in the form first filed with the Commission pursuant to
Rule 424(b) or, if no such filing is required, as included in the
Registration Statement, or any supplement thereto, is herein referred to
as the "PROSPECTUS." The prospectus subject to completion in the form
included in the Registration Statement at the time of the initial filing
of the Registration Statement with the Commission, and each such
prospectus as amended from time to time until the date of the
Prospectus, is referred to herein as the "PRELIMINARY PROSPECTUS." The
Company has prepared and filed such amendments to the Registration
Statement since its initial filing with the Commission, if any, as may
have been required to the date hereof, and will file such additional
amendments thereto as may hereafter be required. There have been
delivered to the Representatives three signed copies of the Registration
Statement and each amendment thereto, if any, together with three copies
of each exhibit filed therewith, and such number of conformed copies for
each of the Underwriters of the Registration Statement and each
amendment thereto, if any (but without exhibits), and of each
Preliminary Prospectus and of the Prospectus as the Representatives have
requested.
(f) Neither the Commission nor any state securities commission has issued
any order preventing or suspending the use of any Preliminary
Prospectus, nor, to the knowledge of the Company, have any proceedings
for that purpose been initiated or threatened, and each Preliminary
Prospectus filed with the Commission as part of the Registration
Statement as originally filed or as part of any amendment or supplement
thereto complied when so filed with the requirements of the Act and, as
of its date, did not include any untrue statement of a material fact or
omit to state a material fact
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required to be stated therein or necessary to make the statements
therein not misleading. As of the effective date of the Registration
Statement, and at all times subsequent thereto up to each Closing Date,
the Registration Statement and the Prospectus contained or will contain
all statements that are required to be stated therein in accordance with
the Act and conformed or will conform in all respects to the
requirements of the Act, and neither the Registration Statement nor the
Prospectus included or will include any untrue statement of a material
fact or omitted or will omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. Neither the Company, nor any person that controls, is
controlled by (including the Subsidiaries) or is under common control
with the Company, has distributed or will distribute prior to each
Closing Date any offering material in connection with the offering and
sale of the Shares other than a Preliminary Prospectus, the Prospectus,
the Registration Statement or other materials permitted by the Act and
provided to the Representatives.
(g) Xxxxxx Xxxxxxxx LLP and Xxxx X. Xxxxx, which have expressed their
respective opinions with respect to the consolidated financial
statements and schedules filed with the Commission and included as a
part of each Preliminary Prospectus, the Prospectus or the Registration
Statement are each independent accountants as required by the Act.
(h) The consolidated financial statements and the related notes thereto
included in each Preliminary Prospectus, the Prospectus and the
Registration Statement present fairly the financial position, results of
operations and cash flows of the Company as of their respective dates or
for the respective periods covered thereby, all in conformity with
generally accepted accounting principles consistently applied throughout
the periods involved. The financial statement schedules, if any,
included in the Registration Statement present fairly the information
required to be stated therein on a basis consistent with the
consolidated financial statements of the Company contained therein. The
Company had an outstanding capitalization as set forth in the
Registration Statement and under "CAPITALIZATION" in the Prospectus as
of the date indicated therein, and there has been no material change
thereto since such date except as disclosed in the Prospectus. The
financial and statistical information and data relating to the Company
in each Preliminary Prospectus, the Prospectus and the Registration
Statement are accurately presented and prepared on a basis consistent
with the audited consolidated financial statements and books and records
of the Company. The consolidated financial statements and schedules and
the related notes thereto included in each Preliminary Prospectus, the
Prospectus or the Registration Statement are the only such financial
statements and schedules required under the Act to be set forth therein.
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(i) The financial information set forth in the Prospectus under "Summary
Financial Data", "Selected Consolidated Financial Data" and the "Young
Innovations, Inc. and Denticator International, Inc. Unaudited Pro Forma
Financial Information" presents fairly, on the basis stated in each
Registration Statement and the Prospectus, the information set forth
therein; the pro forma financial information included in each
Registration Statement and the Prospectus presents fairly the
information shown therein and has been prepared in accordance with
generally accepted accounting principles in the United States and the
Commission's rules and guidelines with respect to pro forma information;
and the assumptions used in preparing the pro forma financial statements
included in each Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(j) Neither the Company nor any Subsidiary is, nor with the giving of notice
or passage of time or both, would be, in violation or in breach of: (i)
its respective Articles of Incorporation or By-laws; (ii) any statute,
ordinance, order, rule or regulation applicable to the Company or such
Subsidiary; (iii) any order or decree of any court, regulatory body,
arbitrator, administrative agency or other instrumentality of the United
States or other country or jurisdiction having jurisdiction over the
Company or such Subsidiary; or (iv) any provision of any agreement,
lease, franchise, license, indenture, permit, mortgage, deed of trust,
evidence of indebtedness or other instrument to which the Company or
such Subsidiary is a party or by which any property owned or leased by
the Company or such Subsidiary is bound or affected. Neither the
Company nor any Subsidiary has received notice of any violation of any
applicable statute, ordinance, order, rule or regulation applicable to
the Company or any Subsidiary. The Company and each Subsidiary have
obtained and hold, and are in compliance with, all permits,
certificates, licenses, approvals, registrations, franchises, consents
and authorizations of governmental or regulatory authorities required
under all laws, rules and regulations in connection with their
businesses (hereinafter "PERMIT" or "PERMITS"), and all of such permits
are in full force and effect; and the Company and each Subsidiary have
fulfilled and performed all of their respective obligations with respect
to each such permit and no event has occurred which would result in, or
after notice or lapse of time would result in, revocation or termination
of any such permit or result in any other impairment of the rights of
the holder of such permit. Neither the Company nor any Subsidiary is or
has been (by virtue of any action, omission to act, contract to which it
is a party or other occurrence) in violation of any applicable foreign,
federal, state, municipal or local statutes, laws, ordinances, rules,
regulations or orders (including those relating to
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environmental protection, occupational safety and health and equal
employment practices) heretofore or currently in effect.
(k) There are no legal or governmental proceedings or investigations pending
or, to the knowledge of the Company, threatened to which the Company or
any Subsidiary is or may be a party or to which any property owned or
leased by the Company or any Subsidiary is or may be subject, including,
without limitation, any such proceedings that are related to
environmental or employment discrimination matters, which are required
to be described in the Registration Statement or the Prospectus which
are not so described, or which question the validity of this Agreement
or any action taken or to be taken pursuant hereto. Except as described
in the Registration Statement or the Prospectus, neither the Company nor
any Subsidiary: (i) is in violation of any statute, ordinance, rule or
regulation, or any decision, order or decree of any court, regulatory
body, arbitrator, administrative agency or other instrumentality of the
United States or other country or jurisdiction having jurisdiction over
the Company or such Subsidiary relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"); (ii) owns or operates
any real property contaminated with any substance that is subject to any
environmental laws; (iii) is liable for any off-site disposal or
contamination pursuant to any environmental laws; or (iv) is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim could have a Material Adverse Effect.
(l) There is no transaction, relationship, obligation, agreement or other
document required to be described in the Registration Statement or the
Prospectus or to be filed or deemed to be filed as an exhibit to the
Registration Statement by the Act, which has not been described or filed
as required. All such contracts or agreements to which the Company or
any Subsidiary is a party have been duly authorized, executed and
delivered by the Company or such Subsidiary, constitute valid and
binding agreements of the Company or such Subsidiary, and are
enforceable by and against the Company or such Subsidiary, in accordance
with the respective terms thereof, except as enforceability of such
contracts and agreements may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
(m) The Company or a Subsidiary has good and valid title to all property and
assets reflected as owned by the Company or such Subsidiary in the
Company's consolidated financial statements included in the Registration
Statement (or elsewhere in the Registration Statement or the
Prospectus), free and clear of all liens, claims, mortgages, security
interests or other encumbrances of any kind or nature
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whatsoever except those, if any, reflected in such financial statements
(or elsewhere in the Registration Statement or the Prospectus). All
property (real and personal) held or used by the Company or a Subsidiary
under leases, licenses, franchises or other agreements is held by the
Company or such Subsidiary under valid, subsisting, binding and
enforceable leases, franchises, licenses or other agreements, except as
enforceability of leases, franchises, licenses or other agreements may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally.
(n) Neither the Company nor any person that controls, is controlled by
(including the Subsidiaries) or is under common control with the Company
has taken or will take, directly or indirectly, any action designed to
cause or result in, or which constituted, or which could cause or result
in, stabilization or manipulation, under the Exchange Act or otherwise,
of the price of any security of the Company to facilitate the sale or
resale of the Common Stock.
(o) Except as described in the Registration Statement or the Prospectus,
since the respective dates as of which information is given in the
Registration Statement or the Prospectus and prior to each Closing Date:
(i) neither the Company nor any Subsidiary has or will have incurred any
liability or obligation, direct or contingent, or entered into any
transaction, that is material to the Company, except as in the ordinary
course of business; (ii) the Company has not and will not have paid or
declared any dividend or other distribution with respect to its capital
stock and neither the Company nor any Subsidiary is or will be
delinquent in the payment of principal or interest on any outstanding
debt obligation; and (iii) there has not been and will not have been any
change in the capital stock, any material change in the indebtedness of
the Company or any Subsidiary, or any change or development involving or
which could be expected to involve, a Material Adverse Effect, whether
or not arising from transactions in the ordinary course of business.
(p) Neither the Company nor any person that controls, is controlled by
(including the Subsidiaries) or is under common control with the Company
has, directly or indirectly: (i) made any unlawful contribution to any
candidate for political office, or failed to disclose fully any
contribution in violation of law; or (ii) made any payment to any
federal, state or foreign governmental officer or official, or other
person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof or applicable foreign jurisdictions.
(q) The Company or a Subsidiary owns or possesses adequate rights to use all
patents, patent applications, trademarks, service marks, trade names,
trademark registrations,
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service xxxx registrations, copyrights and licenses presently used in or
necessary for the conduct of its business or ownership of its
properties, and neither the Company nor any Subsidiary has violated or
infringed upon the rights of others, or received any notice of conflict
with the asserted rights of others, in respect thereof.
(r) The Company or a Subsidiary has in place and effective such policies of
insurance, with limits of liability in such amounts, as are normal and
prudent in the ordinary course of the business of the Company and its
Subsidiaries.
(s) No labor dispute with the employees of the Company or any Subsidiary
exists or, to the knowledge of the Company, is imminent, and neither the
Company nor any Subsidiary is a party to any collective bargaining
agreement and, to the knowledge of the Company, no union organizational
attempts have occurred or are pending. There has been no change in the
relationship of the Company or any Subsidiary with any of its principal
suppliers, manufacturers, contractors or customers resulting in or that
could result in a Material Adverse Effect.
(t) Neither the Company nor any Subsidiary is an "INVESTMENT COMPANY", an
"AFFILIATED PERSON" of, or "PROMOTER" or "PRINCIPAL UNDERWRITER" for, an
"INVESTMENT COMPANY", as such terms are defined in the Investment
Company Act of 1940, as amended.
(u) All federal, state and local tax returns required to be filed by or on
behalf of the Company or any Subsidiary have been filed (or are the
subject of valid extension) with the appropriate federal, state and
local authorities, and all such tax returns, as filed, are accurate in
all material respects; all federal, state and local taxes (including
estimated tax payments) required to be shown on all such tax returns or
claimed to be due from or with respect to the business of the Company or
such Subsidiary have been paid or reflected as a liability on the
financial statements of the Company or such Subsidiary for appropriate
periods; except as described in the Registration Statement or the
Prospectus, all deficiencies asserted as a result of any federal, state
or local tax audits have been paid or finally settled, and, except as
described in the Registration Statement or the Prospectus, no issue has
been raised in any such audit which, by application of the same or
similar principles, reasonably could be expected to result in a proposed
deficiency for any other period not so audited; no state of facts exist
or has existed which would constitute grounds for the assessment of any
tax liability with respect to the periods which have not been audited by
appropriate federal, state or local authorities; there are no
outstanding agreements or waivers extending the statutory period of
limitation applicable to any federal, state or local tax return of any
period; and neither the Company nor any Subsidiary has ever been a
member of an affiliated group of corporations filing consolidated
federal income
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tax returns, other than a group of which the Company or Young Dental
Manufacturing Company is and has been the common parent.
(v) Except for the Company's 1997 Stock Option Plan, its nonqualified bonus
plan and its profit sharing plan, neither the Company nor any Subsidiary
is a participating employer or plan sponsor with respect to any employee
pension benefit plan as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or any
employee welfare benefit plan as defined in Section 3(1) of ERISA,
including, without limitation, any multiemployer welfare or pension
plan. With respect to the Plans, the Company is in substantial
compliance with all applicable regulations, including ERISA and the
Code. With respect to each defined benefit retirement plan, such plan
does not have benefit liabilities (as defined in Section 4001(a)(16) of
ERISA) exceeding the assets of the plan. The Company or the
administrator of each of the Plans, as the case may be, has timely filed
the reports required to be filed by ERISA and the Code in connection
with the maintenance of the Plans, and no facts, including, without
limitation, any "REPORTABLE EVENT" as defined by ERISA and the
regulations thereunder, exist in connection with the Plans which, under
applicable law, would constitute grounds for the termination of any of
the Plans by the Pension Benefit Guaranty Corporation or for the
appointment by the appropriate United States District Court of a trustee
to administer any of the Plans.
(w) The Company and each Subsidiary maintain a system of internal accounting
controls sufficient to provide reasonable assurances that: (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of consolidated financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorizations; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) None of the Company, any Subsidiary, any officer or director of the
Company or any Subsidiary, or any person who owns, of record or
beneficially, any class of securities issued by the Company is: (i) an
officer, director or partner of any brokerage firm, broker or dealer
that is a member of the NASD ("NASD MEMBER"); or (ii) directly or
indirectly, a "PERSON ASSOCIATED WITH" an NASD member or an "AFFILIATE"
of an NASD member, as such terms are used in the NASD Rules of Fair
Practice. In addition, neither the Company nor any Subsidiary has
issued or transferred any Common Stock, warrants, options or other
securities, or any other items of value, to any of the Underwriters or
any "RELATED PERSON" of any Underwriter, as such term is used in the
NASD Rules of Fair Practice, except as provided in this Agreement.
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(y) The Company has prepared and filed with the Commission a registration
statement for the Common Stock pursuant to Section 12(g) of the Exchange
Act. Such registration statement either has been declared effective by
the Commission under the Exchange Act or will be declared effective by
the Commission prior to or concurrently with the commencement of the
public offering of the Shares. The Common Stock has been approved for
designation upon notice of issuance as a Nasdaq National Market security
on The Nasdaq Stock Market ("NASDAQ") concurrently with the
effectiveness of the Registration Statement.
(z) All offers and sales of the securities of the Company and each
Subsidiary prior to the date hereof were made in compliance with the Act
and all other applicable state and federal laws or regulations.
(aa) The Company has obtained for the benefit of the Underwriters the
agreement, enforceable by Xxxxxx X. Xxxxx & Co. Incorporated ("BAIRD"),
of each of the officers and directors of the Company, and each of the
shareholders of the Company, that for a period of 180 days after the
date of the Prospectus, such persons will not, without the prior written
consent of Baird, directly or indirectly, offer, sell, transfer, or
pledge, contract to sell, transfer or pledge, or cause or in any way
permit to be sold, transferred, pledged, or otherwise disposed of, any:
(i) shares of Common Stock; (ii) rights to purchase shares of Common
Stock (including, without limitation, shares of Common Stock that may be
deemed to be beneficially owned by any such shareholder in accordance
with the applicable regulations of the Commission and shares of Common
Stock that may be issued upon the exercise of a stock option, warrant or
other convertible security); or (iii) securities that are convertible or
exchangeable into shares of Common Stock.
(bb) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter
for a brokerage commission, finder's fee or other like payment.
A certificate signed by any officer of the Company and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to the Underwriters as to the
matters covered thereby. A certificate delivered by the Company to its counsel
for purposes of enabling such counsel to render the opinion referred to in
section 8(d) will also be furnished to the Representatives and counsel for the
Underwriters and shall be deemed to be additional representations and
warranties to the Underwriters by the Company as to the matters covered
thereby.
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SECTION 3. REPRESENTATION OF UNDERWRITERS. The Representatives will act as
the representatives for the several Underwriters in connection with the public
offering of the Shares, and any action under or in respect of this Agreement
taken by the Representatives will be binding upon all of the Underwriters.
SECTION 4. INFORMATION FURNISHED BY THE UNDERWRITERS. The information set
forth in the last paragraph on the outside front cover page of the Prospectus
concerning the terms of the offering by the Underwriters, the paragraph on the
inside front cover page of the Prospectus relating to stabilization practices,
and the concession and reallowance amounts and the description of stabilizing
practices appearing under the caption "UNDERWRITING" in the Prospectus
constitute all of the information furnished to the Company by and on behalf of
the Underwriters for use in connection with the preparation of the Registration
Statement and the Prospectus, as such information is referred to in this
Agreement.
SECTION 5. PURCHASE, SALE AND DELIVERY OF SHARES.
(a) On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth, the
Company agrees to sell to the Underwriters identified in Schedule I
annexed hereto 2,000,000 Firm Shares, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company the
number of Firm Shares as hereinafter set forth at the price per share of
$__________. The obligation of each Underwriter to the Company shall be
to purchase from the Company that number of full Firm Shares which (as
nearly as practicable in full shares as determined by the
Representatives) bears the same proportion to the number of Firm Shares
to be sold by the Company as the number of shares set forth opposite the
name of such Underwriter in Schedule I annexed hereto bears to the total
number of Firm Shares to be purchased by all of the Underwriters under
this Agreement.
(b) On the First Closing Date (as hereinafter defined), the Company will
deliver to the Representatives, at the offices of Xxxxxx X. Xxxxx & Co.
Incorporated, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or
through the facilities of The Depository Trust Company, for the accounts
of the several Underwriters, certificates representing the Firm Shares
to be sold by them against payment of the purchase price therefor in
funds available on the same day by wire transfer to the account of the
Company at a bank acceptable to Xxxxxx X. Xxxxx & Co. Incorporated or
by official Federal Reserve Bank check drawn to the order of the Company
with respect to the Firm Shares being sold by the Company. As referred
to in this Agreement, the "FIRST CLOSING DATE" shall be on the third
full business day after the date of the Prospectus, at 9:00 a.m.,
Chicago, Illinois time, or at such other date or time not later than ten
full business days after the date of the Prospectus as the
Representatives and
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the Company may agree. The certificates for the Firm Shares to be so
delivered will be in denominations and registered in such names as the
Representatives request by notice to the Company prior to the First
Closing Date, and such certificates will be made available for checking
and packaging at 9:00 a.m., Chicago, Illinois time on the first full
business day preceding the First Closing Date at a location to be
designated by the Representatives.
(c) In addition, on the basis of the representations, warranties and
agreements herein contained, and subject to the terms and conditions
herein set forth, the Company hereby agrees to sell to the Underwriters,
and the Underwriters, severally and not jointly, shall have the right at
any time within thirty days after the date of the Prospectus to purchase
up to 300,000 Optional Shares from the Company at the purchase price per
share to be paid for the Firm Shares, for use solely in covering any
over-allotments made by the Underwriters in the sale and distribution of
the Firm Shares. Such Optional Shares shall be purchased for the
account of each Underwriter in the same proportion as the number of Firm
Shares set forth opposite such Underwriter's name bears to the total
number of Firm Shares (subject to adjustment by Xxxxxx X. Xxxxx & Co.
Incorporated to eliminate fractions). The option granted hereunder may
be exercised upon notice by the Representatives to the Company within
thirty days after the date of the Prospectus setting forth the aggregate
number of Optional Shares to be purchased by the Underwriters and sold
by the Company, the names and denominations in which the certificates
for such shares are to be registered and the date and place at which
such certificates will be delivered. Such date of delivery (the "SECOND
CLOSING DATE") shall be determined by the Representatives, provided that
the Second Closing Date, which may be the same as the First Closing
Date, shall not be earlier than the First Closing Date and, if after the
First Closing Date, shall not be earlier than three nor later than ten
full business days after delivery of such notice to exercise.
Certificates for the Optional Shares will be made available for checking
and packaging at 9:00 a.m., Chicago, Illinois time, on the first full
business day preceding the Second Closing Date at a location to be
designated by the Representatives. The manner of payment for and
delivery of (including the denominations of and the names in which
certificates are to be registered) the Optional Shares shall be the same
as for the Firm Shares.
(d) The Representatives have advised the Company that each Underwriter has
authorized the Representatives to accept delivery of the Shares and to
make payment therefor. It is understood that the Representatives,
individually and not as representatives of the Underwriters, may (but
shall not be obligated to) make payment for any Shares to be purchased
by any Underwriter whose funds shall not have been received by the
Representatives by the First Closing Date or the Second Closing Date, as
the case may be, for the account of such Underwriter, but any such
payment shall not relieve
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such Underwriter from any obligation under this Agreement. As referred
to in this Agreement, "CLOSING DATE" shall mean either the First Closing
Date or the Second Closing Date.
SECTION 6. COVENANTS OF THE COMPANY. The Company covenants and agrees with
the several Underwriters that:
(a) If the effective time of the Registration Statement is not prior to the
execution and delivery of this Agreement, the Company will use its best
efforts to cause the Registration Statement to become effective at the
earliest possible time and, upon notification from the Commission that
the Registration Statement has become effective, will so advise the
Representatives and counsel to the Underwriters promptly. If the
effective time of the Registration Statement is prior to the execution
and delivery of this Agreement and any information shall have been
omitted therefrom in reliance upon Rule 430A, the Company, at the
earliest possible time, will furnish the Representatives with a copy of
the Prospectus to be filed by the Company with the Commission to comply
with Rule 424(b) and Rule 430A under the Act and, if the Representatives
do not object to the contents thereof, will comply with such Rules. Upon
compliance with such Rules, the Company will so advise the
Representatives promptly. The Company will advise the Representatives
and counsel to the Underwriters promptly of the issuance by the
Commission or any state securities commission of any stop order
suspending the effectiveness of the Registration Statement or of the
institution of any proceedings for that purpose, or of any notification
of the suspension of qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceedings for
that purpose, and will also advise the Representatives and counsel to
the Underwriters promptly of any request of the Commission for amendment
or supplement of the Registration Statement, of any Preliminary
Prospectus or of the Prospectus, or for additional information, and the
Company will not file any amendment or supplement to the Registration
Statement (either before or after it becomes effective), to any
Preliminary Prospectus or to the Prospectus (including a prospectus
filed pursuant to Rule 424(b)) if the Representatives have not been
furnished with a copy prior to such filing (with a reasonable
opportunity to review such amendment or supplement) or if the
Representatives object to such filing.
(b) If, at any time when a prospectus relating to the Shares is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact, or would omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to
supplement the Prospectus
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to comply with the Act, the Company promptly will advise the
Representatives and counsel to the Underwriters thereof and will
promptly prepare and file with the Commission, at its expense, an
amendment to the Registration Statement which will correct such
statement or omission or an amendment which will effect such compliance;
and, if any Underwriter is required to deliver a prospectus after the
effective date of the Registration Statement, the Company, upon request
of the Representatives, will prepare promptly such prospectus or
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act. The Company consents to
the use, in accordance with the provisions of the Act and with the Blue
Sky Laws of the jurisdictions in which the Shares are offered by the
several Underwriters and by dealers, of each Preliminary Prospectus.
(c) Neither the Company nor any Subsidiary will, prior to the Second Closing
Date, if any, incur any liability or obligation, direct or contingent,
or enter into any material transaction, other than in the ordinary
course of business, or enter into any transaction with an "AFFILIATE,"
as defined in Rule 405 under the Act, which is required to be described
in the Prospectus pursuant to Item 404 of Regulation S-K under the Act,
except as described in the Prospectus.
(d) Neither the Company nor any Subsidiary will, prior to the Second
Closing Date, if any, acquire any of the Common Stock nor will the
Company declare or pay any dividend or make any other distribution upon
its Common Stock payable to shareholders of record on a date prior to
such earlier date, except as described in the Prospectus.
(e) The Company will make generally available to its security holders and
the Representatives an earnings statement as soon as practicable, but in
no event later than sixty days after the end of its fiscal quarter in
which the first anniversary of the effective date of the Registration
Statement occurs, covering a period of twelve consecutive calendar
months beginning after the effective date of the Registration Statement,
which will satisfy the provisions of the last paragraph of Section 11(a)
of the Act and Rule 158 promulgated thereunder.
(f) During such period as a prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, the Company will
furnish to the Representatives, at the expense of the Company, copies of
the Registration Statement, the Prospectus, any Preliminary Prospectus
and all amendments and supplements to any such documents in each case as
soon as available and in such quantities as the Representatives may
reasonably request.
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(g) The Company will apply the net proceeds from the sale of the Shares to
be sold by it hereunder for the purposes set forth in the Prospectus.
(h) The Company will cooperate with the Representatives and counsel to the
Underwriters in qualifying or registering the Shares for sale under the
Blue Sky Laws of such jurisdictions as the Representatives designate,
and will continue such qualifications or registrations in effect so long
as reasonably requested by the Representatives to effect the
distribution of the Shares. The Company shall not be required to
qualify as a foreign corporation or to file a general consent to service
of process in any such jurisdiction where it is not presently qualified.
In each jurisdiction where any of the Shares shall have been qualified
as provided above, the Company will file such reports and statements as
may be required to continue such qualification for a period of not less
than one year from the date of the Prospectus. The Company shall
promptly prepare and file with the Commission, from time to time, such
reports as may be required to be filed by the Act and the Exchange Act,
and the Company shall comply in all respects with the undertakings given
by the Company in connection with the qualification or registration of
the Shares for offering and sale under the Blue Sky Laws.
(i) During the period of three years from the date of the Prospectus, the
Company will furnish to each of the Representatives and to each of the
other Underwriters who may so request, as soon as available, each
report, statement or other document of the Company or its Board of
Directors mailed to its shareholders or filed with the Commission, and
such other information concerning the Company as the Representatives may
reasonably request.
(j) The Company shall deliver the requisite notice of issuance to Nasdaq and
shall take all necessary or appropriate action within its power to
maintain the authorization for trading of the Common Stock as a Nasdaq
National Market security, or take such action to authorize the Common
Stock for listing on the New York Stock Exchange or the American Stock
Exchange, for a period of at least thirty-six months after the date of
the Prospectus.
(k) Except for the issuance and sale by the Company of Common Stock upon
exercise of presently existing outstanding stock options, the sale of
the Shares to be sold by the Company pursuant to this Agreement, and the
grant of employee stock options pursuant to the Company's 1997 Stock
Option Plan, a copy of which is filed as an exhibit to the Registration
Statement, and provided that, except as disclosed in the Prospectus,
none of such options shall be exercisable during the 180-day period
herein described, the Company shall not, for a period of 180 days after
the date of the Prospectus, without the prior written consent of Baird,
directly or indirectly, offer,
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sell or otherwise dispose of, contract to sell or otherwise dispose of,
or cause or in any way permit to be sold or otherwise disposed of, any:
(i) shares of Common Stock; (ii) rights to purchase shares of Common
Stock; or (iii) securities that are convertible or exchangeable into
shares of Common Stock.
(l) The Company will maintain a transfer agent and, if required by law or
the rules of The Nasdaq Stock Market or any national securities exchange
on which the Common Stock is listed, a registrar (which, if permitted by
applicable laws and rules, may be the same entity as the transfer agent)
for its Common Stock. The Company shall, as soon as practicable after
the date hereof, use its best efforts to obtain listing in Standard and
Poor's Stock Guide, or such other recognized securities manuals for
which it may qualify for listing, and the Company shall use its best
efforts to maintain such listings for at least five years after the
First Closing Date.
(m) If at any time when a prospectus relating to the Shares is required to
be delivered under the Act, any rumor, publication or event relating to
or affecting the Company shall occur as a result of which, in the
opinion of Baird, the market price of the Common Stock has been or is
likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to the Prospectus), the
Company will, after written notice from Baird advising the Company of
any of the matters set forth above, promptly consult with Baird
concerning the advisability and substance of, and, if the Company and
Baird determine that it is appropriate, disseminate, a press release or
other public statement responding to or commenting on, such rumor,
publication or event.
(n) If the sale to the Underwriters of the Shares is not consummated for any
reason other than termination of this Agreement pursuant to section 11
hereof, without limiting any other rights the Underwriters may have, the
Company agrees to reimburse the Underwriters upon demand for all
out-of-pocket expenses (including reasonable fees and expenses of
counsel for the Underwriters), that shall have been incurred by the
Underwriters in connection with the proposed purchase and sale of the
Shares, and the provisions of sections 7 and 10 hereof shall at all
times be effective and apply.
(o) The Company will comply or cause to be complied with the conditions to
the obligations of the Underwriters in section 8 hereof.
SECTION 7. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective, or
if this Agreement is terminated for any reason, the Company will pay the costs,
fees and expenses incurred in connection with the public offering of the
Shares. Such costs, fees and expenses to be paid by the Company include,
without limitation:
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(a) All costs, fees and expenses (excluding the expenses incurred by the
Underwriters and the legal fees and disbursements of counsel for the
Underwriters, but including such fees and disbursements described in
subsection (b) of this section 7) incurred in connection with the
performance of the Company's obligations hereunder, including without
limiting the generality of the foregoing: the registration fees related
to the filing of the Registration Statement with the Commission; the
fees and expenses related to the quotation of the Shares on Nasdaq or
other national securities exchange; the fees and expenses of the
Company's counsel, accountants, transfer agent and registrar; the costs
and expenses incurred in connection with the preparation, printing,
shipping and delivery of the Registration Statement, each Preliminary
Prospectus and the Prospectus (including all exhibits and financial
statements) and all agreements and supplements provided for herein, this
Agreement and the Preliminary and Supplemental Blue Sky Memoranda,
including, without limitation, shipping expenses via overnight delivery
and/or courier service to comply with applicable prospectus delivery
requirements; and the costs and expenses associated with the production
of materials related to, and travel expenses incurred by the management
of the Company in connection with, the various meetings to be held
between the Company's management and prospective investors.
(b) All registration fees and expenses, including legal fees and
disbursements of counsel for the Underwriters incurred in connection
with qualifying or registering all or any part of the Shares for offer
and sale under the Blue Sky Laws and the clearing of the public offering
and the underwriting arrangements evidenced hereby with the NASD.
(c) All fees and expenses related to printing of the certificates for the
Shares, and all transfer taxes, if any, with respect to the sale and
delivery of the Shares.
SECTION 8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters under this Agreement shall be subject
to the accuracy of the representations and warranties on the part of the
Company herein set forth as of the date hereof and as of each Closing Date, to
the accuracy of the statements of the Company's officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to the following additional conditions, unless waived in writing
by the Representatives:
(a) The Registration Statement shall have been declared effective by the
Commission not later than 2:00 p.m., Washington, D. C. time, on the date
of this Agreement, or such later time as shall have been consented to by
the Representatives, which consent shall be deemed to have been given if
the Registration Statement shall have been declared effective on or
before the date and time requested in the acceleration request submitted
on behalf of the Representatives pursuant to Rule 461 under the Act; all
filings required by Rules 424(b) and 430A under the Act shall have been
timely
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made; no stop order suspending the effectiveness of the Registration
Statement shall have been issued by the Commission or any state
securities commission nor, to the knowledge of the Company, shall any
proceedings for that purpose been initiated or threatened; and any
request of the Commission or any state securities commission for
inclusion of additional information in the Registration Statement, or
otherwise, shall have been complied with to the satisfaction of the
Representatives.
(b) Since the dates as of which information is given in the Registration
Statement:
(i) there shall not have occurred any change or development involving,
or which could be expected to involve, a Material Adverse
Effect, whether or not arising from transactions in the ordinary
course of business; and
(ii) the Company shall not have sustained any loss or interference
from any labor dispute, strike, fire, flood, windstorm,
accident or other calamity (whether or not insured) or from any
court or governmental action, order or decree,
the effect of which on the Company, in any such case described in clause (i) or
(ii) above, is in the opinion of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares on the terms and in the manner contemplated in the
Registration Statement and the Prospectus.
(c) The Representatives shall not have advised the Company that the
Registration Statement or the Prospectus contains an untrue statement of
fact that, in the opinion of the Representatives or counsel for the
Underwriters, is material, or omits to state a fact that, in the opinion
of the Representatives or such counsel, is material and is required to
be stated therein or necessary to make the statements therein not
misleading.
(d) The Representatives shall have received an opinion of Armstrong,
Teasdale, Schlafly & Xxxxx, counsel for the Company addressed to the
Representatives, as the representatives of the Underwriters, and dated
the First Closing Date or the Second Closing Date, as the case may be,
to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation and in good standing under the laws of its
jurisdiction of incorporation, with full corporate power and
authority to own, lease and operate its properties and conduct its
business as presently conducted and as described in the Prospectus
and the Registration Statement; the Company is duly registered and
qualified to do business as a foreign corporation under the laws
of, and is in good standing as such in, each jurisdiction in which
such
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registration or qualification is required, except where the
failure to so register or qualify would not have a Material
Adverse Effect;
(ii) The authorized capital stock of the Company consists of 25,000,000
shares of Common Stock, par value $.01 per share, and all such
stock conforms as to legal matters to the descriptions thereof in
the Prospectus and the Registration Statement;
(iii) The issued and outstanding shares of capital stock of the Company
immediately prior to the issuance and sale of the Shares to be
sold by the Company hereunder have been duly authorized and
validly issued, are fully paid and nonassessable, and there are no
preemptive, preferential or, except as described in the
Prospectus, other rights to subscribe for or purchase any shares
of capital stock of the Company, and to such counsel's knowledge,
no shares of capital stock of the Company have been issued in
violation of such rights;
(iv) Except for the Subsidiaries, the Company has no subsidiaries, and
the Company does not own any equity interest in or control,
directly or indirectly, any other corporation, limited liability
company, partnership, joint venture, association, trust or other
business organization except as described in the Prospectus and
the Registration Statement; each Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as presently conducted and
as described in the Prospectus and the Registration Statement;
each Subsidiary is duly registered or qualified to do business as
a foreign corporation under the laws of, and is in good standing
as such in, each jurisdiction in which such registration or
qualification is required, except where the failure to so register
or qualify would not have a Material Adverse Effect; the issued
and outstanding shares of the capital stock of each Subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable and there are no preemptive, preferential or, to
such counsel's knowledge, other rights to subscribe for or
purchase any shares of capital stock of any Subsidiary, and to
such counsel's knowledge, no shares of capital stock of any
Subsidiary have been issued in violation of such rights; except as
otherwise disclosed in the Prospectus, the Company owns directly
and, to such counsel's knowledge, beneficially all of the issued
and outstanding capital stock of each Subsidiary, free and clear
of any and all liens, claims, encumbrances and security interests;
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(v) The certificates for the Shares to be delivered hereunder are in
due and proper form and conform to the requirements of
applicable law; and when duly countersigned by the Company's
transfer agent, and delivered to the Representatives or upon the
order of the Representatives against payment of the agreed
consideration therefor in accordance with the provisions of this
Agreement, the Shares to be sold by the Company represented
thereby will be duly authorized and validly issued, fully paid and
nonassessable, and free of any preemptive, preferential or other
rights to subscribe for or purchase shares of Common Stock;
(vi) The Registration Statement has become effective under the Act,
and to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or are threatened
under the Act or any Blue Sky Laws; the Registration Statement and
the Prospectus and any amendment or supplement thereto (except for
the financial statements and other statistical or financial data
included therein as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements
of the Act; no facts have come to the attention of such counsel
which lead it to believe that either the Registration Statement or
the Prospectus or any amendment or supplement thereto contains any
untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, as of the First Closing Date or the Second Closing
Date, as the case may be, contained any untrue statement of a
material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which
they were made (except for the financial statements and other
financial and statistical data included therein as to which such
counsel need express no opinion); to such counsel's knowledge,
there are no legal or governmental proceedings pending or
threatened, including, without limitation, any such proceedings
that are related to environmental or employment discrimination
matters, required to be described in the Registration Statement or
the Prospectus which are not so described or which question the
validity of this Agreement or any action taken or to be taken
pursuant thereto, nor, to such counsel's knowledge, is there any
transaction, relationship, agreement, contract or other document
of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement by the Act, which is not described or filed
as required;
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(vii) The Company has full corporate power and authority to enter into
and perform this Agreement; the performance of the Company's
obligations hereunder and the consummation of the transactions
described herein have been duly authorized by the Company by
all necessary corporate action and this Agreement has been duly
executed and delivered by and on behalf of the Company, and is a
legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except that
rights to indemnity or contribution may be limited by applicable
law and except as enforceability of this Agreement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by equitable
principles limiting the right to specific performance or other
equitable relief; no consent, approval, authorization or other
order or decree of any court, regulatory or governmental body,
arbitrator, administrative agency or other instrumentality of the
United States or other country or jurisdiction having jurisdiction
over the Company is required for the execution and delivery of
this Agreement or the consummation of the transactions
contemplated by this Agreement (except for compliance with the
Act, the Exchange Act, applicable Blue Sky Laws and the clearance
of the underwriting arrangements by the NASD);
(viii) The execution, delivery and performance of this Agreement by the
Company will not: (A) violate any provisions of the Articles
of Incorporation or By-laws of the Company or any Subsidiary; (B)
to such counsel's knowledge, violate any provisions of, or result
in the breach, modification or termination of, or constitute a
default under, any agreement, lease, franchise, license,
indenture, permit, mortgage, deed of trust, other evidence of
indebtedness or other instrument to which the Company or any
Subsidiary is a party or by which the Company or such Subsidiary,
or any of their respective owned or leased property is bound, and
which is filed as an exhibit to the Registration Statement; or (C)
violate any statute, ordinance, order, rule, decree or regulation
of any court, regulatory or governmental body, arbitrator,
administrative agency or other instrumentality of the United
States or other country or jurisdiction having jurisdiction over
the Company or any Subsidiary;
(ix) To such counsel's knowledge, except as described in the Prospectus,
there are no holders of Common Stock or other securities of the
Company, or securities that are convertible or exchangeable into
Common Stock or other securities of the Company, that have rights
to the registration of such securities under the Act or any Blue
Sky Laws;
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(x) The Common Stock has been designated for inclusion as a National
Market security on The Nasdaq Stock Market and is registered under
the Exchange Act;
(xi) Neither the Company nor any Subsidiary is, nor with the giving of
notice or passage of time or both would be, in violation of its
respective Articles of Incorporation or By-laws or, to such
counsel's knowledge, in default in any material respect in the
performance of any agreement, lease, franchise, license, permit,
mortgage, deed of trust, evidence of indebtedness or other
instrument, or any other document that is filed as an exhibit to
the Registration Statement, to which the Company or any Subsidiary
is subject or bound;
(xii) Neither the Company nor any Subsidiary is an "INVESTMENT COMPANY",
an "AFFILIATED PERSON" of, or "PROMOTER" or "PRINCIPAL UNDERWRITER"
for, an "INVESTMENT COMPANY", as such terms are defined in the
Investment Company Act of 1940, as amended, and, upon its receipt
of any proceeds from the sale of the Shares, the Company will not
become or be deemed to be an "INVESTMENT COMPANY" thereunder;
(xiii) The description in the Registration Statement and the Prospectus of
statutes, law, regulations, legal and governmental proceedings, and
contracts and other legal documents described therein fairly and
correctly present, in all material respects, the information
required to be included therein by the Act; and
(xiv) All offers and sales by the Company and the Subsidiaries of their
capital stock before the date hereof were at all relevant times
duly registered under or exempt from the registration requirements
of the Act, and were duly registered under or the subject of an
available exemption from the registration requirements of any
applicable Blue Sky Laws.
In rendering such opinion, counsel for the Company may rely, to the extent
counsel deems such reliance proper, as to matters of fact upon certificates of
officers of the Company and of governmental officials, and copies of all such
certificates shall be furnished to the Representatives and the Underwriters on
or before each Closing Date.
(e) The Representatives shall have received an opinion of XxXxxxxxx, Will &
Xxxxx, counsel for the Underwriters, dated the First Closing Date or the
Second Closing Date, as the case may be, with respect to the issuance
and sale of the Shares by the Company, the Registration Statement and
other related matters as the Representatives may require, and the
Company shall have furnished to such counsel such documents
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and shall have exhibited to them such papers and records as they request
for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received on each Closing Date, a
certificate of Xxxxxx X. Xxxxxxxx, President and Chief Executive
Officer, and Xxxxxxx X. Xxxxxxxxx, Vice President, Treasurer and Chief
Financial Officer, of the Company, to the effect that:
(i) The representations and warranties of the Company set forth in
section 2 hereof are true and correct as of the date of this
Agreement and as of the date of such certificate, and the Company
has complied with all the agreements and satisfied all the
conditions to be performed or satisfied by it at or prior to the
date of such certificate;
(ii) The Commission has not issued an order preventing or suspending the
use of the Prospectus or any Preliminary Prospectus or any
amendment or supplement thereto; no stop order suspending the
effectiveness of the Registration Statement has been issued; and
to the knowledge of the respective signatories, no proceedings for
that purpose have been initiated or are pending or contemplated
under the Act or under the Blue Sky Laws of any jurisdiction;
(iii) Each of the respective signatories has carefully examined the
Registration Statement and the Prospectus, and any amendment or
supplement thereto, and such documents contain all statements
required to be stated therein, and do not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and since the date on which the
Registration Statement was initially filed, no event has occurred
that was required to be set forth in an amended or supplemented
prospectus or in an amendment to the Registration Statement that
has not been so set forth; and
(iv) Since the date on which the Registration Statement was initially
filed with the Commission, there shall not have occurred any
change or development involving, or which could be expected to
involve, a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as
disclosed in the Prospectus and the Registration Statement as
heretofore amended or (but only if the Representatives expressly
consent thereto in writing) as disclosed in an amendment or
supplement thereto filed with the Commission and delivered to the
Representatives after the execution of this Agreement; since such
date and except as so disclosed or in the
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ordinary course of business, the Company has not incurred any
liability or obligation, direct or indirect, or entered into any
transaction which is material to the Company; since such date and
except as so disclosed, there has not been any change in the
outstanding capital stock of the Company, or any change that is
material to the Company in the short-term debt or long-term debt
of the Company; since such date and except as so disclosed, the
Company has not acquired any of the Common Stock or other capital
stock of the Company nor has the Company declared or paid any
dividend, or made any other distribution, upon its outstanding
Common Stock payable to shareholders of record on a date prior to
such Closing Date; since such date and except as so disclosed, the
Company has not incurred any material contingent obligations, and
no material litigation is pending or threatened against the
Company; and, since such date and except as so disclosed, the
Company has not sustained any material loss or interference from
any strike, fire, flood, windstorm, accident or other calamity
(whether or not insured) or from any court or governmental action,
order or decree.
The delivery of the certificate provided for in this subsection (f) shall be
and constitute a representation and warranty of the Company as to the facts
required in the immediately foregoing clauses (i), (ii), (iii) and (iv) to be
set forth in said certificate.
(g) At the time this Agreement is executed and also on each Closing Date,
there shall be delivered to the Representatives letters addressed to the
Representatives, as the representatives of the Underwriters, from Xxxxxx
Xxxxxxxx LLP, the Company's independent accountants, the first letter to
be dated the date of this Agreement, the second letter to be dated the
First Closing Date and the third letter (if applicable) to be dated the
Second Closing Date, which shall be in form and substance satisfactory
to the Representatives and shall contain information as of a date within
five days of the date of such letter. There shall not have been any
change or decrease set forth in any of the letters referred to in this
subsection (g) which makes it impracticable or inadvisable in the
judgment of the Representatives to proceed with the public offering or
purchase of the Shares as contemplated hereby.
(h) The Shares shall have been qualified or registered for sale under the
Blue Sky Laws of such jurisdictions as shall have been specified by the
Representatives, the underwriting terms and arrangements for the
offering shall have been cleared by the NASD, and the Common Stock shall
have been designated for inclusion as a Nasdaq National Market security
on the Nasdaq Stock Market and shall have been registered under the
Exchange Act.
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(i) Receipt of such further certificates and documents as the
Representatives may reasonably request (including certificates of
officers of the Company).
All such opinions, certificates, letters and documents shall be in compliance
with the provisions hereof only if they are reasonably satisfactory to the
Representatives and to XxXxxxxxx, Will & Xxxxx, counsel for the Underwriters.
The Company shall furnish the Representatives with such manually signed or
conformed copies of such opinions, certificates, letters and documents as the
Representatives may reasonably request.
If any condition to the Underwriters' obligations hereunder to be satisfied
prior to or at either Closing Date is not so satisfied, this Agreement at the
election of the Representatives will terminate upon notification to the Company
without liability on the part of any Underwriter, including the
Representatives, the Company except for the provisions of section 6(n) hereof,
the expenses to be paid by the Company pursuant to section 7 hereof and except
to the extent provided in section 10 hereof.
SECTION 9. MAINTAIN EFFECTIVENESS OF REGISTRATION STATEMENT. The Company
will use its best efforts to prevent the issuance of any stop order suspending
the effectiveness of the Registration Statement, and, if such stop order is
issued, to obtain as soon as possible the lifting thereof.
SECTION 10. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
the Act or the Exchange Act, from and against any losses, claims,
damages, expenses, liabilities or actions in respect thereof ("CLAIMS"),
joint or several, to which such Underwriter or each such controlling
person may become subject under the Act, the Exchange Act, Blue Sky Laws
or other federal or state statutory laws or regulations, at common law
or otherwise (including payments made in settlement of any litigation),
insofar as such Claims arise out of or are based upon any breach of any
representation, warranty or covenant made by the Company in this
Agreement, or any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or in
any application filed under any Blue Sky Law or other document executed
by the Company for that purpose or based upon written information
furnished by the Company and filed in any state or other jurisdiction to
qualify any or all of the Shares under the securities laws thereof (any
such document, application or information being hereinafter called a
"BLUE SKY APPLICATION") or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Company
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agrees to reimburse each Underwriter and each such controlling person
for any legal fees or other expenses incurred by such Underwriter or any
such controlling person in connection with investigating or defending
any such Claim; provided, however, that the Company will not be liable
in any such case to the extent that: (i) any such Claim arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or supplement thereto or in any
Blue Sky Application in reliance upon and in conformity with the written
information furnished to the Company pursuant to section 4 of this
Agreement; or (ii) such statement or omission was contained or made in
any Preliminary Prospectus and corrected in the Prospectus and (1) any
such Claim suffered or incurred by any Underwriter (or any person who
controls any Underwriter) resulted from an action, claim or suit by any
person who purchased Shares which are the subject thereof from such
Underwriter in the offering, and (2) such Underwriter failed to deliver
or provide a copy of the Prospectus to such person at or prior to the
confirmation of the sale of such Shares in any case where such delivery
is required by the Act, unless such failure was due to failure by the
Company to provide copies of the Prospectus to the Underwriters as
required by this Agreement. The indemnification obligations of the
Company as provided above are in addition to and in no way limit any
liabilities the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors and each of its officers who
signs the Registration Statement, and each person, if any, who controls
the Company within the meaning of the Act or the Exchange Act against
any Claim to which the Company, or any such director, officer or
controlling person may become subject under the Act, the Exchange Act,
Blue Sky Laws or other federal or state statutory laws or regulations,
at common law or otherwise (including payments made in settlement of any
litigation, if such settlement is effected with the written consent of
such Underwriter and Xxxxx), insofar as such Claim arises out of or is
based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, or in any Blue Sky
Application, or arises out of or is based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or
any amendment or supplement thereto, or in any Blue Sky Application, in
reliance solely upon and in conformity with the written information
furnished by the Representatives to the Company pursuant to section 4 of
this Agreement. Each Underwriter will severally reimburse any legal
fees or other
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expenses incurred by the Company, or any such director, officer or
controlling person in connection with investigating or defending any
such Claim, and from any and all Claims solely resulting from failure of
an Underwriter to deliver a Prospectus, if the person asserting such
Claim purchased Shares from such Underwriter and a copy of the
Prospectus (as then amended if the Company shall have furnished any
amendments thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended) would have
cured the defect giving rise to such Claim. The indemnification
obligations of each Underwriter as provided above are in addition to any
liabilities any such Underwriter may otherwise have. Notwithstanding
the provisions of this section, no Underwriter shall be required to
indemnify or reimburse the Company, or any officer, director or
controlling person in an aggregate amount in excess of the total price
at which the Shares purchased by any such Underwriter hereunder were
offered to the public, less the amount of any damages such Underwriter
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this section of
notice of the commencement of any action in respect of a Claim, such
indemnified party will, if a Claim in respect thereof is to be made
against an indemnifying party under this section, notify the
indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve an
indemnifying party from any liability it may have to any indemnified
party under this section or otherwise. In case any such action is
brought against any indemnified party, and such indemnified party
notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and, to the extent
that he, she or it may wish, jointly with all other indemnifying
parties, similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided, however, if
the defendants in any such action include both the indemnified party and
any indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to the indemnified
party and/or other indemnified parties which are different from or
additional to those available to any indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties.
(d) Upon receipt of notice from the indemnifying party to such indemnified
party of the indemnifying party's election to assume the defense of such
action and upon approval by the indemnified party of counsel selected by
the
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indemnifying party, the indemnifying party will not be liable to such
indemnified party under this section for any legal fees or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless:
(i) the indemnified party shall have employed separate counsel in
connection with the assumption of legal defenses in accordance
with the proviso to the last sentence of subsection (c) of this
section (it being understood, however, that the indemnifying party
shall not be liable for the legal fees and expenses of more than
one separate counsel, approved by Xxxxx, if one or more of the
Underwriters or their controlling persons are the indemnified
parties);
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the indemnified
party's notice to the indemnifying party of commencement of the
action; or
(iii) the indemnifying party has authorized the employment of counsel
at the expense of the indemnifying party.
(e) If the indemnification provided for in this section is unavailable to an
indemnified party under subsection (a), (b) or (c) hereof in respect of
any Claim referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall, subject to the limitations
hereinafter set forth, contribute to the amount paid or payable by such
indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Underwriters from the
offering of the Shares; or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above,
but also the relative fault of the Company and the Underwriters in
connection with the statements or omissions which resulted in such
Claim, as well as any other relevant equitable considerations.
The relative benefits received by each of the Company and the Underwriters
shall be deemed to be in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the amount of
the underwriting discounts and commissions per share appearing on the cover
page of the Prospectus bears to the public offering price per share appearing
thereon, and the Company (including its officers and directors and controlling
persons) is responsible for the remaining portion. The relative fault of the
Company and the Underwriters shall be determined by
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reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the Claims referred to above shall be
deemed to include, subject to the limitations set forth in subsections (c) and
(d) of this section, any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
(f) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this section were determined by
pro rata or per capita allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method or allocation
which does not take into account the equitable considerations referred
to in subsection (e) of this section. Notwithstanding the other
provisions of this section, no Underwriter shall be required to
contribute any amount that is greater than the amount by which the total
price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this section are
several in proportion to their respective underwriting commitments and
not joint.
SECTION 11. DEFAULT OF UNDERWRITERS. It shall be a condition to the
obligations of each Underwriter to purchase the Shares in the manner as
described herein, that, except as hereinafter provided in this section, each of
the Underwriters shall purchase and pay for all the Shares agreed to be
purchased by such Underwriter hereunder upon tender to the Representatives of
all such Shares in accordance with the terms hereof. If any Underwriter or
Underwriters default in their obligations to purchase Shares hereunder on
either the First Closing Date or the Second Closing Date and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed ten percent (10%) of the total number of
Shares which the Underwriters are obligated to purchase on such Closing Date,
the Representatives may make arrangements for the purchase of such Shares by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date the nondefaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Shares which such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of Shares with respect to which such default or defaults occur
is greater than ten percent (10%) of the total number of Shares which the
Underwriters are obligated to purchase on such Closing Date, and arrangements
satisfactory to the Representatives for the purchase of such Shares by other
persons are not made within thirty-six hours
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after such default, this Agreement will terminate without liability on the part
of any nondefaulting Underwriter, the Company except for the expenses to be
paid by the Company pursuant to section 7 hereof and except to the extent
provided in section 10 hereof.
In the event that Shares to which a default relates are to be purchased by
the nondefaulting Underwriters or by another party or parties, the
Representatives shall have the right to postpone the First Closing Date or the
Second Closing Date, as the case may be, for not more than seven business days
in order that the necessary changes in the Registration Statement, Prospectus
and any other documents, as well as any other arrangements, may be effected.
As used in this Agreement, the term "UNDERWRITER" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve
a defaulting Underwriter from liability for its default.
SECTION 12. EFFECTIVE DATE. This Agreement shall become effective upon the
execution and delivery of this Agreement by the parties hereto. Such execution
and delivery shall include an executed copy of this Agreement sent by
telecopier, facsimile transmission or other means of transmitting written
documents.
SECTION 13. TERMINATION. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof, this Agreement may be
terminated by the Representatives prior to or on the First Closing Date and the
over-allotment option from the Company referred to in section 5 hereof, if
exercised, may be cancelled by the Representatives at any time prior to or on
the Second Closing Date, if in the judgment of the Representatives, payment for
and delivery of the Shares is rendered impracticable or inadvisable because:
(a) additional governmental restrictions, not in force and effect on the
date hereof, shall have been imposed upon trading in securities
generally or minimum or maximum prices shall have been generally
established on the New York Stock Exchange or the American Stock
Exchange, or trading in securities generally shall have been suspended
or materially limited on either such exchange or on The Nasdaq Stock
Market or a general banking moratorium shall have been established by
either federal or state authorities in New York, Missouri or Wisconsin;
(b) any event shall have occurred or shall exist which makes untrue or
incorrect in any material respect any statement or information contained
in the Registration Statement or which is not reflected in the
Registration Statement but should be reflected therein to make the
statements or information contained therein not misleading in any
material respect; or
(c) an outbreak or escalation of hostilities or other national or
international calamity or any substantial change in political, financial
or economic conditions shall have occurred or shall have accelerated to
such extent, in the judgment of the
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Representatives, as to have a material adverse effect on the financial
markets of the United States, or to make it impracticable or inadvisable
to proceed with completion of the sale of and payment for the Shares as
provided in this Agreement.
Any termination pursuant to this Section shall be without liability on the
part of any Underwriter to the Company, or on the part of the Company to any
Underwriter, except for expenses to be paid by the Company pursuant to section
7 hereof or reimbursed by the Company pursuant to section 6(n) hereof and
except as to indemnification to the extent provided in section 10 hereof.
SECTION 14. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties, covenants and
other statements of the Company, of its officers or directors and of the
several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or the Company or any of its or their partners,
officers, directors or any controlling person, as the case may be, and will
survive delivery of and payment for the Shares sold hereunder.
SECTION 15. NOTICES. All communications hereunder will be in writing and,
if sent to the Representatives, will be mailed, delivered, telecopied (with
receipt confirmed) or telegraphed and confirmed to Xxxxxx X. Xxxxx & Co.
Incorporated at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxx X. Xxxxxxxx, Managing Director, with a copy to Xxxxxx X.
Xxxxxx, Esq., XxXxxxxxx, Will & Xxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000; and if sent to the Company, will be mailed, delivered,
telecopied (with receipt confirmed) or telegraphed and confirmed to the Company
at 00000 Xxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxxxx, with a copy to Armstrong, Teasdale, Schlafly & Xxxxx, Xxx
Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxx X.
Xxxxxx, Xx.
SECTION 16. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors, personal
representatives and assigns, and to the benefit of the officers and directors
and controlling persons referred to in section 10 hereof and no other person
will have any right or obligation hereunder. The term "SUCCESSORS" shall not
include any purchaser of the Shares as such from any of the Underwriters merely
by reason of such purchase.
SECTION 17. PARTIAL UNENFORCEABILITY. If any section, paragraph, clause or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph clause or provision hereof.
SECTION 18. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of Wisconsin
without reference to conflict of law principles thereunder. This Agreement may
be signed in various counterparts which together
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shall constitute one and the same instrument, and shall be effective when at
least one counterpart hereof shall have been executed by or on behalf of each
party hereto.
* * *
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company and the several Underwriters,
including the Representatives, all in accordance with its terms.
Very truly yours,
YOUNG INNOVATIONS, INC.
By:
------------------------------------
Its:
-----------------------------------
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first above written
XXXXXX X. XXXXX & CO. INCORPORATED
XXXXXX GULL XXXXXXX & XXXXXXXX INC.
By: XXXXXX X. XXXXX & CO. INCORPORATED
Acting as Representative of the several
Underwriters (including themselves) identified
in Schedule I annexed hereto.
By:
----------------------------
Authorized Representative
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YOUNG INNOVATIONS, INC.
SCHEDULE I
NO. OF
UNDERWRITER SHARES
----------- ------
Xxxxxx X. Xxxxx & Co. Incorporated
Xxxxxx Gull Xxxxxxx & XxXxxxxx Inc.
---------
Total 2,000,000
=========
