EXHIBIT 1.1
6,000,000 SHARES
XXXXXX XXXXXXXXXX TECHNOLOGIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
July __, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
U.S. BANCORP XXXXX XXXXXXX INC.
As Representatives of the Several Underwriters
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Xxxxxx Xxxxxxxxxx Technologies, Inc., a Delaware
corporation (the "COMPANY") proposes to issue and sell 2,000,000 shares of its
common stock, par value $.001 per share (the "SECURITIES"), and the stockholders
listed in Schedule A hereto ("SELLING STOCKHOLDERS") propose severally and not
jointly to sell an aggregate of 4,000,000 outstanding Securities (such 6,000,000
Securities to be sold by the Company and the Selling Stockholders being
hereinafter referred to as the "FIRM SECURITIES") to the Underwriters. The
Selling Stockholders also propose to sell, severally and not jointly, to the
Underwriters, at the option of the Underwriters, an aggregate of not more than
900,000 additional outstanding shares of the Company's Securities, as set forth
below (such 900,000 additional shares being hereinafter referred to as the
"OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities are
herein collectively called the "OFFERED SECURITIES." The Company and the Selling
Stockholders, severally and not jointly, hereby agree with the several
Underwriters named in Schedule B hereto ("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-63386) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission (the "COMMISSION") and either
(A) has been declared effective under the Securities Act of 1933, as
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amended (the "ACT"), and is not proposed to be amended or (B) is
proposed to be amended by amendment or post-effective amendment. If
such registration statement (the "INITIAL REGISTRATION STATEMENT") has
been declared effective, either (A) an additional registration
statement (the "ADDITIONAL REGISTRATION STATEMENT") relating to the
Offered Securities may have been filed with the Commission pursuant to
Rule 462(b) ("RULE 462(B)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing, the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("RULE 462(C)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement, means (A) if the Company has advised
the Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement, but the
Company has advised the Representatives that it proposes to file one,
"EFFECTIVE TIME" with respect to such additional registration statement
means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "EFFECTIVE DATE"
with respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form
on which it is filed and including all information (if any) deemed to
be a part of the initial registration statement as of its Effective
Time pursuant to Rule 430A(b) ("RULE 430A(B)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION STATEMENT." The
additional registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all information (if
any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "ADDITIONAL REGISTRATION STATEMENT." The Initial
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Registration Statement and the Additional Registration Statement are
hereinafter referred to collectively as the "REGISTRATION STATEMENTS"
and individually as a "REGISTRATION STATEMENT." The form of prospectus
relating to the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(B)") under
the Act or (if no such filing is required) as included in a
Registration Statement, is hereinafter referred to as the "PROSPECTUS."
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder ("RULES AND REGULATIONS") and did 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, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement (if any) is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement (if any) each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional Registration
Statement (if any) in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all material respects to the requirements of the Act and the
Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and no Additional Registration Statement has
been or will be filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by
(i) any Selling Stockholder or (ii) any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Sections 7(b) and 7(c) hereof.
(iii) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described in
the Prospectus and to own, lease and operate its properties, and each
is duly qualified and is in good standing
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as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(iv) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
granted or issued by the Company or any of its subsidiaries relating to
or entitling any person to purchase or otherwise to acquire any shares
of the capital stock of the Company or any of its subsidiaries, except
as otherwise disclosed in the Registration Statement.
(v) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights; and
the Offered Securities have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by
this Agreement, will be validly issued, fully paid and non-assessable
and the issuance of such Offered Securities will not be subject to any
preemptive or similar rights.
(vi) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable and are owned by the Company,
directly or indirectly through one or more subsidiaries, free and clear
of any security interest, claim, lien, encumbrance or adverse interest
of any nature.
(vii) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(viii) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(ix) The execution, delivery and performance of this Agreement by
the Company, the compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
will not (A) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency (except such as may be required under the securities or Blue Sky
laws of the various states), (B) conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the charter
or by-laws of the Company or any of its subsidiaries or any indenture,
loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound, (C) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any
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governmental body or agency having jurisdiction over the Company, any
of its subsidiaries or their respective property or (D) result in the
suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or any other
impairment of the rights of the holder of any such Authorization.
(x) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of
its subsidiaries is or could be a party or to which any of their
respective property is or could be subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described; nor are there any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required.
(xi) Neither the Company nor any of its subsidiaries has violated
any foreign, federal, state or local law or regulation relating to the
protection of human health and safety (including, without limitation,
laws relating to the Food and Drug Administration), the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or any provisions of the
Foreign Corrupt Practices Act, or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect.
(xii) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "AUTHORIZATION") of, and has made all filings with
and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals,
including, without limitation, under any applicable Environmental Laws,
as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would
not, singly or in the aggregate, have a Material Adverse Effect. Each
such Authorization is valid and in full force and effect and each of
the Company and its subsidiaries is in compliance with all the terms
and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome to
the Company or any of its subsidiaries; except where such failure to be
valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such restriction
would not, singly or in the aggregate, have a Material Adverse Effect.
(xiii) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any Authorization, any related
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constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a Material
Adverse Effect.
(xiv) This Agreement has been duly authorized, executed and
delivered by the Company.
(xv) Deloitte & Touche LLP are independent public accountants with
respect to the Company and its subsidiaries (other than Sierra-KD
Components Division, which was recently acquired by the Company's
subsidiary, Greatbatch-Sierra, Inc., a Delaware corporation
("GREATBATCH-SIERRA")) as required by the Act.
(xvi) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present
fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries on
the basis stated therein at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein; the supporting schedules
included in the Registration Statement present fairly in accordance
with generally accepted accounting principles the information required
to be stated therein and the assumptions used in preparing the
unaudited pro forma as adjusted consolidated financial statements (the
"UNAUDITED PRO FORMA AS ADJUSTED CONSOLIDATED FINANCIAL STATEMENTS")
included in each Registration Statement and Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein and the
related pro forma adjustments give appropriate effect to those
assumptions and the pro forma columns therein reflect the proper
adjustment applicable to those assumptions and the corresponding
historical financial statement amounts; and the other financial and
statistical information and data set forth in the Registration
Statement and the Prospectus (and any amendment or supplement thereto)
are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and
records of the Company.
(xvii) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(xviii) Other than as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with
the Offered Securities registered pursuant to the Registration
Statement.
(xix) Since the respective dates as of which information is given
in the Prospectus other than as set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of this
Agreement), (A) there has not occurred any material adverse
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change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries,
taken as a whole, (B) there has not been any material adverse change or
any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries and (C) neither the Company nor any of its subsidiaries
has incurred any material liability or obligation, direct or
contingent.
(xx) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
(xxi) The Company owns or possesses, or can acquire on reasonable
terms, all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"INTELLECTUAL PROPERTY") currently employed by it in connection with
the business now operated by it, except where the failure to own or
possess or otherwise be able to acquire such Intellectual Property
would not, singly or in the aggregate, have a Material Adverse Effect;
and the Company is not infringing or conflicting with asserted rights
of others with respect to any of such Intellectual Property which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(xxii) The Offered Securities have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance.
(xxiii) The Company's and GB Acquisition Co., Inc.'s respective
representations and warranties contained in the Asset Purchase
Agreement (the "ASSET PURCHASE AGREEMENT"), dated as of June 18, 2001,
by and among the Company, GB Acquisition Co., Inc., Xxxxxxx
Technologies, Inc. and Xxxxxxx Electronic Components Group, Inc. (the
"SELLER"), were true and correct in all material respects when made and
as of the date hereof.
(xxiv) 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 in connection with the offering and sale of the Offered
Securities.
(b) Each Selling Stockholder, severally and not jointly, represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has, and on each applicable Closing
Date hereinafter mentioned will have, valid and unencumbered title
(except for encumbrances pursuant to the Power of Attorney and Custody
Agreement, each as defined below) to the Offered Securities to be
delivered by such Selling Stockholder on such Closing Date and full
right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Offered Securities to be delivered by
such Selling Stockholder on such Closing Date hereunder; and
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upon the delivery of and payment for the Offered Securities on each
Closing Date hereunder, the several Underwriters will acquire valid and
unencumbered title to the Offered Securities to be delivered by such
Selling Stockholder on such Closing Date;
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement did 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, (B)
on the Effective Date of the Additional Registration Statement (if
any), neither Registration Statement included, or will include, any
untrue statement of a material fact and did not omit, or will not omit,
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (C) on the date of
this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement (if any) is
prior to the execution and delivery of this Agreement, the Additional
Registration Statement (if any) does not, and at the time of filing of
the Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement (if any) in which the Prospectus is included, each
Registration Statement and the Prospectus will not, include any untrue
statement of a material fact or omit, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The preceding sentence applies only
to the extent that any statements in or omissions from a Registration
Statement or the Prospectus are made in reliance on and in conformity
with written information relating to such Selling Stockholder furnished
to the Company by such Selling Stockholder specifically for use
therein, it being understood and agreed that the only such information
furnished by any Selling Stockholder consists of such Selling
Stockholder's name, number of shares of the Company's Common Stock held
by such Selling Stockholder before and after the offering and its plan
to sell its Firm Securities and any Optional Securities pursuant to
this Agreement as set forth under the caption "Principal and Selling
Stockholders"; and
(iii) Except as disclosed in the Prospectus and other than this
Agreement, there are no contracts, agreements or understandings between
such Selling Stockholder and any person that would give rise to a valid
claim against such Selling Stockholder or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with the offering of the Offered Securities.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agree, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $_______ per share, that
number of Firm Securities (a) in the case of the Company, set forth in column A
opposite the name of such Underwriter in Schedule B hereto and (b) in the case
of each Selling Stockholder (rounded up or down, as determined by Credit Suisse
First Boston Corporation ("CSFBC") in its discretion, in order to avoid
fractions) obtained by multiplying the number of Firm Securities set forth
opposite the name of such Selling Stockholder in Schedule A hereto, under the
caption "Number of Firm Securities to Be Sold" by a fraction, the
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numerator of which is the number of Firm Securities set forth opposite the name
of such Underwriter in Column B of Schedule B hereto and the denominator of
which is 4,000,000.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under custody agreements ("CUSTODY AGREEMENTS") made with
Mellon Investor Services LLC, as Custodian (the "CUSTODIAN"). Each Selling
Stockholder agrees that the shares represented by the certificates held in
custody for the Selling Stockholders under such Custody Agreements are subject
to the interests of the Underwriters hereunder, that the arrangements made by
the Selling Stockholders for such custody are to that extent irrevocable, and
that the obligations of the Selling Stockholders hereunder shall not be
terminated by operation of law, whether by the death of any individual Selling
Stockholder or the occurrence of any other event, or in the case of a trust, by
the death of any trustee or trustees or the termination of such trust. If any
individual Selling Stockholder or any such trustee or trustees should die, or if
any other such event should occur, or if any of such trusts should terminate,
before the delivery of the Offered Securities hereunder, certificates for such
Offered Securities shall be delivered by the Custodian in accordance with the
terms and conditions of this Agreement as if such death or other event or
termination had not occurred, regardless of whether or not the Custodian shall
have received notice of such death or other event or termination.
The Company and the Custodian will deliver the Firm Securities to be
sold by the Company and the Selling Stockholders hereunder, respectively, to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by wire transfer to an account at a
bank acceptable to CSFBC (and, in the case of the Company, as specified by the
Company) and to the order of Xxxxxx Xxxxxxxxxx Technologies, Inc. in the case of
2,000,000 shares of Firm Securities and to the order of the Custodian in the
case of 4,000,000 shares of Firm Securities to be sold by the Selling
Stockholders, at the office of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 000
Xxxxxxx Xxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York time, on July ___,
2001, or at such other time not later than seven full business days thereafter
as CSFBC and the Company determine, such time being herein referred to as the
"FIRST CLOSING DATE." For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or less than all
of the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholders agree, severally and not jointly, to
sell to the Underwriters the respective numbers of Optional Securities obtained
by multiplying the number of Optional Securities specified in such notice by a
fraction, the numerator of which is the number of shares set forth opposite the
names of such Selling Stockholders in Schedule A hereto under the caption
"Number of Optional Securities to be Sold" and the denominator of which is the
total number of Optional Securities (subject to adjustment by CSFBC to eliminate
fractions) and the Underwriters agree, severally and not jointly, to purchase
such Optional Securities. Such Optional Securities shall be purchased from each
Selling Stockholder for the account of each Underwriter in the same proportion
as the number of Firm Securities set forth opposite such Underwriter's name
bears to
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the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless all of the
Firm Securities previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company and
the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Custodian, at the above office of Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P.
Delivery of the Firm Securities and the Optional Securities shall be
made through the facilities of The Depository Trust Company ("DTC").
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. (a)
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this
Agreement or (B) if required pursuant to Rule 430A(a)(3) under the Act,
the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a portion
of the Offered Securities under the Act but the Effective Time thereof
has not occurred as of such execution and delivery, the Company will
file the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, on or prior to the time
the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CSFBC.
10
(ii) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary 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 amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(iv) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Representatives copies of each
Registration Statement (six of which will be manually signed (facsimile
copy or original) and will include all exhibits), each related
preliminary prospectus, and, so long as a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and
all amendments and supplements to such documents, in each case in such
quantities as CSFBC requests. The Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other such documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
11
(vi) The Company will arrange for the qualification of the Offered
Securities for sale under the state securities or Blue Sky laws of such
jurisdictions as CSFBC designates and will continue such qualifications
in effect so long as required for the distribution; PROVIDED, HOWEVER,
that the Company shall not be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not
now so qualified or to take any action that would subject it to general
consent to service of process or taxation other than as to matters and
transactions relating to the Prospectus, the Registration Statement,
any preliminary prospectus or the offering or sale of the Offered
Securities, in any jurisdiction in which it is not now so subject.
(vii) During the period of three years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(viii) For a period of 90 days after the date of the Prospectus,
the Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares
of its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC, except issuances of
Securities pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in each
case outstanding on the date hereof, grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof, issuances
of Securities pursuant to the exercise of such options.
(ix) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and each Selling Stockholder (excluding
underwriting discounts and commissions payable by the Selling
Stockholders), as the case may be, under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel)
in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for the filing fee incident to
the review by the National Association of Securities Dealers, Inc. of
the Offered Securities, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(b) (i) Each Selling Stockholder agrees to deliver to the Custodian on
or prior to the First Closing Date a properly completed and executed United
States Treasury Department Form W-9 (or other applicable form or statement
specified by the Treasury Department regulations in lieu thereof).
12
(ii) Each Selling Stockholder agrees, for a period of 90 days
after the date of the Prospectus, not to offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any additional
shares of the Securities of the Company or securities convertible into
or exchangeable or exercisable for any shares of Securities, enter into
a transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of CSFBC,
except that the foregoing provision shall not apply to the sale or
other transfer of shares of the Securities by DLJ Merchant Banking
Partners II, L.P. and its affiliated investment funds (the "DLJMB
FUNDS") to any associate (as such term is defined in Rule 12b-2 of the
Exchange Act), provided that such associate executes a lock-up
agreement in the form attached hereto as Exhibit A prior to such
transfer.
(iii) Each Selling Stockholder will pay all applicable transfer
taxes on the sale by such Selling Stockholder of the Offered Securities to the
Underwriters.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received letters, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), in form
and substance satisfactory to the Representatives, of (i) Deloitte &
Touche LLP, independent public accountants to the Company, relating to
those matters below as they pertain to the Company's consolidated
financial statements, and (ii) Ernst & Young LLP, independent public
accountants to the Seller, relating to those matters below as they
pertain to the Seller's financial statements, each confirming that they
are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating
to the effect that:
(i) in their opinion, the financial statements and
financial statement schedule audited by them and included in
the Registration Statements comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
13
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements of the
Company or the Seller, as the case may be, included in the
Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company or the Seller, as the case
may be, inquiries of officials of the Company or the Seller,
as the case may be, who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements of
the Company or the Seller, as the case may be,
included in the Registration Statements do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) the unaudited revenues or net sales, net
income (loss) and net earnings (loss) per share
amounts for the three-month periods ended (i) March
30, 2001 and March 31, 2000 (in the case of the
Company) or (ii) March 31, 2001 and March 31, 2000
(in the case of the Seller) included in the
Prospectus do not agree with the amounts set forth in
the unaudited financial statements where applicable
for those same periods or were not determined on a
basis substantially consistent with that of the
corresponding amounts in the audited statements of
operations;
(C) at the date of the latest available
balance sheet of the Company or the Seller, as the
case may be, read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company or the Seller, as the case may be, and
its respective consolidated subsidiaries or, at the
date of the latest available balance sheet read by
such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(D) for the period from the closing date of
the latest statement of operations included in the
Prospectus to the closing date of the latest
available income statement of the Company or the
Seller, as the case may be, read by such accountants,
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest statement of operations
14
included in the Prospectus, in revenues or net sales
in the total or per share amounts of net income
(loss);
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) in the case of Deloitte & Touche LLP, on the
basis of a reading of the Unaudited Pro Forma As Adjusted
Consolidated Financial Statements included in the Registration
Statement and the Prospectus, carrying out certain specified
procedures, inquiries of certain officials of the Company and
the Seller who have responsibility for financial and
accounting matters and proving the arithmetic accuracy of the
application of the pro forma and as adjusted adjustments to
the historical amounts in the Unaudited Pro Forma As Adjusted
Consolidated Financial Statements, nothing came to their
attention which caused them to believe that the Unaudited Pro
Forma As Adjusted Consolidated Financial Statements do not
comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or
that the pro forma and as adjusted adjustments have not been
properly applied to the historical amounts in the compilation
of such statements; and
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company or the Seller,
as the case may be, and its respective subsidiaries, subject
to the internal controls of the Company's or the Seller's
respective accounting systems or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
15
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company
or the Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Weil, Gotshal & Xxxxxx LLP, counsel for the Company, to
the effect that:
(i) each of the Company and Xxxxxx Xxxxxxxxxx Ltd., a
New York corporation ("WGL"), WGL Intermediate Holdings, Inc.,
a Delaware corporation, and Xxxxxxxxxx-Xxxxxxx, Inc., a
Delaware corporation (each a "SUBSIDIARY" and collectively,
the "SUBSIDIARIES"), is a corporation validly existing and in
good standing
16
under the laws of the State of its respective incorporation
and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business
as described in the Prospectus;
(ii) each of the Company and each Subsidiary is duly
qualified to transact business and is in good standing as a
foreign corporation authorized to do business in each
jurisdiction identified in Schedule A to the opinion;
(iii) all of the outstanding shares of capital stock
of the Company are duly authorized, validly issued, fully paid
and non-assessable and have not been issued in violation of
any preemptive or similar rights pursuant to law or in the
Company's Certificate of Incorporation;
(iv) the shares of common stock to be issued pursuant
to this Agreement have been duly authorized and, when issued
as contemplated by this Agreement, will be validly issued,
fully paid and non-assessable and free of preemptive or
similar rights pursuant to law or in the Company's Certificate
of Incorporation;
(v) all of the outstanding shares of capital stock of
WGL Intermediate Holdings, Inc. are owned of record by the
Company. All of the outstanding shares of capital stock of WGL
are owned of record by WGL Intermediate Holdings, Inc. All of
the outstanding shares of Xxxxxxxxxx-Xxxxxxx, Inc. are owned
of record by WGL. To such counsel's knowledge, such shares are
also owned beneficially by the respective record owners
thereof and are free and clear of all adverse claims,
limitations on voting rights, options and other encumbrances.
Such shares are duly authorized, validly issued, fully paid
and non-assessable, except as provided by Section 630 of the
New York Business Corporation Law with respect to WGL, and
have not been issued in violation of (A) any preemptive rights
pursuant to law, (B) any of the Subsidiaries' Certificates of
Incorporation or (C) to such counsel's knowledge, any
contractual preemptive rights;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(viii) the Registration Statement has become
effective under the Act, and such counsel is not aware of any
stop order suspending the effectiveness of the Registration
Statement. To such counsel's knowledge, after consultation
with representatives of the Commission, no proceedings
therefor have been initiated or overtly threatened by the
Commission;
(ix) the statements (A) in the Prospectus under the
captions "Risk Factors," "Management's Discussion and Analysis
of Financial Condition and Results
17
of Operations," "Business," "Management," "Related Party
Transactions," "Description of Capital Stock," "Shares
Eligible for Future Sale" and "Underwriting" and (B) in the
Registration Statement in response to the requirements of
Items 14 and 15 of Part II, in each case insofar as such
statements constitute summaries of the legal matters,
documents or proceedings referred to therein, except as
pertaining to matters of intellectual property (including
without limitation matters of patents, licenses and trade
secrets), fairly present the information called for with
respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein in all
material respects;
(x) the execution, delivery and performance of this
Agreement by the Company, the compliance by the Company with
all the provisions hereof and the consummation of the
transactions contemplated hereby will not (A) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as may be required under the federal or state
securities or Blue Sky laws of the various states), (B)
conflict with or constitute a breach of any of the terms or
provisions of, or a default under, (i) the Certificate of
Incorporation or by-laws of the Company or any Subsidiary or
(ii) any agreements filed as exhibits to the Registration
Statement, that is material to the Company and its
Subsidiaries, taken as a whole, to which the Company or any
Subsidiary is a party or by which the Company or any
Subsidiary or their respective property is bound, or (C)
violate or conflict with any (i) New York, Delaware corporate
or federal law, rule or regulation or (ii) judgment, order or
decree of any court, governmental body or agency having
jurisdiction over the Company, any of its Subsidiaries or
their respective property of which such counsel is aware;
(xi) to such counsel's knowledge, there are no legal
or governmental proceedings pending or overtly threatened to
which the Company or any Subsidiary is a party or to which any
of the properties of the Company or any Subsidiary is subject
that are required to be described in the Registration
Statement or the Prospectus and are not so described or any
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not so
described or filed as required;
(xii) the Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" under the
Investment Company Act of 1940, as amended, and the rules and
regulations promulgated by the Commission thereunder;
(xiii) to such counsel's knowledge, after due
inquiry, except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company or
18
to require the Company to include such securities with the
Offered Securities registered pursuant to the Registration
Statement; and
(xiv) such counsel has participated in conferences
with directors, officers and other representatives of the
Company, representatives of the independent public accountants
for the Company, representatives of the Underwriters and
representatives of counsel for the Underwriters, at which
conferences the contents of the Registration Statement and the
Prospectus and related matters were discussed, and, although
such counsel has not independently verified and is not passing
upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except to the extent
specified in the foregoing opinion), no facts have come to
such counsel's attention which lead such counsel to believe
that the Registration Statement, on the effective date
thereof, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements contained therein not
misleading or that the Prospectus, on the date thereof or on
the date hereof, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements contained therein, in light of the circumstances
under which they were made, not misleading (it being
understood that such counsel expresses no view with respect to
the financial statements and related notes, the financial
statement schedules and the other financial and accounting
data included in the Registration Statement or Prospectus).
The opinion of Weil, Gotshal & Xxxxxx LLP described in Section
6(d) above shall be rendered to the Representatives at the request of
the Company and shall so state therein.
(e) The Representatives shall have received an opinion, dated
such Closing Date, Xxxxxxx Xxxx LLP, local counsel for the Company, to
the effect that:
(i) Battery Engineering, Inc., a Massachusetts corporation
("BEI"), is a corporation validly existing and in good
standing under the law of the Commonwealth of Massachusetts.
BEI is not qualified to do business as a foreign corporation
in any other state;
(ii) BEI has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its
business as described in the Prospectus;
(iii) all of the outstanding capital stock of BEI is owned of
record by WGL. To such counsel's knowledge, all of such
capital stock is also beneficially owned by WGL, free and
clear of all adverse claims, limitations on voting rights,
options and other encumbrances. Such shares are duly
authorized, validly issued, fully paid and non-assessable and
have not been issued in violation of (A) any preemptive rights
pursuant to law, (B) BEI's Certificate of Incorporation or (C)
to such counsel's knowledge, any contractual preemptive
rights;
19
(iv) Greatbatch-Sierra (a) is a corporation validly existing
and in good standing under the General Corporation Law of the
State of Delaware and (b) is duly qualified to do business and
is in good standing as a foreign corporation in the State of
Nevada;
(v) Greatbatch-Sierra has all requisite corporate power and
authority to own, lease and operate its properties and to
carry on its business as described in the Prospectus;
(vi) all of the outstanding capital stock of Greatbatch-Sierra
is owned of record by Xxxxxxxxxx-Xxxxxxx, Inc. To such
counsel's knowledge, all of such capital stock is also
beneficially owned by Xxxxxxxxxx-Xxxxxxx, Inc., free and clear
of all adverse claims, limitations on voting rights, options
and other encumbrances. Such shares are duly authorized,
validly issued, fully paid and non-assessable and have not
been issued in violation of (A) any preemptive rights pursuant
to law, (B) Greatbatch-Sierra's Certificate of Incorporation
or (C) to such counsel's knowledge, any contractual preemptive
rights;
(vii) the execution, delivery and performance of this
Agreement by the Company, the compliance by the Company with
all the provisions hereof and the consummation of the
transactions contemplated hereby will not (A) conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, (i) the Certificate of Incorporation or by-laws
of BEI or Greatbatch-Sierra or (ii) any agreements filed as
exhibits to the Registration Statement, that is material to
BEI and Greatbatch-Sierra, to which BEI or Greatbatch-Sierra
is a party or by which BEI or Greatbatch-Sierra or their
respective property is held, or (B) to such counsel's
knowledge, violate or conflict with any judgment, order or
decree of any court, governmental body or agency having
jurisdiction over BEI or Greatbatch-Sierra or their respective
property;
(viii) to such counsel's knowledge, there are no legal or
governmental proceedings pending or overtly threatened to
which BEI or Greatbatch-Sierra is a party or to which any of
the properties of BEI or Greatbatch-Sierra is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described;
(ix) to such counsel's knowledge, there are no contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so
described or filed as required;
(x) there have come to such counsel's attention no facts that
lead such counsel to believe that the Registration Statement
or that the Prospectus contains an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were
made, not misleading, with respect to (A) any Intellectual
Property of the Company or (B) any license agreement relating
to any Intellectual Property of the Company;
20
(xi) such counsel has no knowledge that, other than as stated
in the Registration Statement and the Prospectus, there is any
material pending or threatened action against the Company
relating to (A) any Intellectual Property of the Company or
(B) any license agreement relating to any Intellectual
Property of the Company;
(xii) such counsel has no knowledge that the Company does not
take measures that the Company reasonably believes to be
adequate to prevent material adverse effects upon the Company
by creating, maintaining, protecting, and realizing reasonable
value from the material Intellectual Property of the Company
and from current material license and other agreements between
the Company and others;
(xiii) such counsel has no knowledge that any license
agreement listed as an Exhibit in the Registration Statement
was not duly executed or is not valid in accordance with its
terms or that the Company is in default (declared or
undeclared), except as otherwise disclosed, in connection with
any material provision of any such license agreement, and
there have come to such counsel's attention no facts that lead
such counsel to believe that any such license agreement to
which the Company is a party is not enforceable;
(xiv) such counsel has no knowledge that, other than as stated
in the Registration Statement and the Prospectus, there is any
pending or threatened legal proceeding asserting a material
breach or default by the Company relating to (A) any
Intellectual Property of the Company or (B) any license
agreement relating to any Intellectual Property of the
Company;
(xv) such counsel has no knowledge that the Company does not
possess the Intellectual Property and licenses to Intellectual
Property that are currently believed by the Company to be
necessary for the conduct of the business of the Company as
described in the Registration Statement and the Prospectus;
(xvi) such counsel has no knowledge, that the Company is not
an owner of record in the appropriate governmental agency of
any Intellectual Property of the Company that is currently
believed by the Company to be necessary for the conduct of the
business, of the Company as described in the Registration
Statement and the Prospectus and for which the Company does
not otherwise hold rights through an express license or
agreement;
(xvii) such counsel has no knowledge that any Intellectual
Property of the Company currently believed by the Company to
be necessary for the conduct of the business of the Company as
described in the Registration Statement and the Prospectus is
unenforceable or invalid owing to a statutory bar arising out
of the acts or omissions of the Company, or that any lien has
been filed against any such Intellectual Property; and
21
(xviii) the statements under the subcaption "Patents and
Proprietary Technology," under the caption "Business" in the
Prospectus, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to
therein fairly present the information called for with respect
to such legal matters, documents and proceedings referred to
therein in all material respects.
The opinion of Xxxxxxx Xxxx LLP described in Section 6(e)
above shall be rendered to the Representatives at the request of the
Company and shall so state therein.
(f) The Representatives shall have received (i) an opinion,
dated such Closing Date, of Xxxxx Xxxx & Xxxxxxxx, counsel for the
DLJMB Funds and (ii) the opinion contemplated in the power of attorney
("POWER OF ATTORNEY") executed and delivered by each Selling
Stockholder (other than the DLJMB Funds) and an opinion, dated such
Closing Date, of Xxxxxxx Xxxx LLP, or such other counsel for each of
the Selling Stockholders (other than the DLJMB Funds), each to the
effect that:
(i) A Power of Attorney and related Custody Agreement
have been duly authorized, executed and delivered by such
Selling Stockholder and constitute valid and binding
obligations of such Selling Stockholder, enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability related to or
affecting creditors' rights and to general equity principles,
and except as rights to indemnity and contribution thereunder
may be limited by applicable law (although no opinion need be
expressed with respect to the provisions contained in the
second and third sentences of Section 2 of the Power of
Attorney or the second and third sentences of the sixth
paragraph of the Custody Agreement); and
(ii) This Agreement has been duly authorized,
executed and delivered by such Selling Stockholder and the
sale of the Offered Securities being delivered by such Selling
Stockholder at such time of delivery and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement, the Power of Attorney and the Custody Agreement
with respect to such Offered Securities will not result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of such Selling Stockholder if such
Selling Stockholder is a corporation or the Partnership
Agreement of such Selling Stockholder if such Selling
Stockholder is a partnership;
(iii) No consent, approval, authorization or order of
any court or governmental agency or body is required to be
obtained or made by such Selling Stockholder for the
execution, delivery and performance by such Selling
Stockholder of the Custody Agreement or this Agreement or in
connection with the sale of the Offered Securities sold by
such Selling Stockholder, except such as have been obtained
and made and such as may be required under the Act or the
Exchange Act and state securities laws or blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Offered Securities by the Underwriters (as to which no
opinion need be expressed); and
22
(iv) Upon payment for the Offered Securities to be
sold by each Selling Stockholder pursuant to this Agreement,
delivery of such Offered Securities, as directed by the
Underwriters, to Cede & Co. ("CEDE") or such other nominee as
may be designated by DTC, registration of such Offered
Securities in the name of Cede or such other nominee and the
crediting of such Offered Securities on the books of DTC to
securities accounts of the Underwriters (assuming that neither
DTC nor any such Underwriter has notice of any adverse claim
(as such phrase is defined in Section 8-105 of the Uniform
Commercial Code as in effect in the State of New York (the
"UCC")) to such Offered Securities), (A) DTC shall be a
"protected purchaser" of such Offered Securities within the
meaning of Section 8-303 of the UCC, (B) under Section 8-501
of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Offered Securities and (C) no
action based on any "adverse claim" (as defined in Section
8-102 of the UCC) to such Offered Securities may be asserted
against the Underwriters with respect to such security
entitlement.
The opinions of Xxxxx Xxxx & Xxxxxxxx and of Xxxxxxx Xxxx LLP
or such other counsel described in Section 6(f) above shall be rendered
to the Representatives at the request of the Company and shall so state
therein.
(g) The Representatives shall have received from Akin, Gump,
Strauss, Xxxxx & Xxxx, L.L.P., counsel for the Underwriters, an opinion
as to the matters referred to in Sections 6(d)(iv), 6(d)(vi), 6(d)(ix)
(but only with respect to the statements under the caption "Description
of Capital Stock" and "Underwriting") and 6(d)(xiv).
(h) The Representatives shall have received a certificate,
dated such Closing Date, signed by Xxxxxx X. Xxxxxxx and Xxxxx X.
XxXxxxxx, in their capacities as Senior Vice President, Finance and
Senior Vice President, Administration and Secretary respectively, of
the Company confirming that: the representations and warranties of the
Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
dates of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(i) The Representatives shall have received letters of
Deloitte & Touche LLP, dated the Closing Date, and Ernst & Young LLP,
dated July __, 2001, which meet the requirements
23
of subsection (a) of this Section, except that in the case of the
letter from Deloitte & Touche LLP, the specified date referred to in
such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(j) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each executive
officer, director and stockholder of the Company listed on Schedule C
hereto.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably request. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, 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, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; PROVIDED FURTHER, that
with respect to any untrue statement or alleged untrue statement in or omission
or alleged omission from any preliminary prospectus, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to such
Underwriter.
(b) Each Selling Stockholder, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses,
24
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, 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, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that such Selling Stockholder shall only be subject
to such liability to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission is based upon written information
provided by such Selling Stockholder relating to such Selling Stockholder
specifically for use therein or contained in a representation or warranty given
by such Selling Stockholder in this Agreement or the Custody Agreement, it being
understood and agreed that the only such information furnished by any Selling
Stockholder consists of each Selling Stockholder's name, number of shares of the
Company's Common Stock held by each Selling Stockholder before and after the
offering and its plan to sell its Firm Securities and any Optional Securities
pursuant to this Agreement as set forth under the caption "Principal and Selling
Stockholders"; PROVIDED, FURTHER, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus, the indemnity agreement contained in this subsection (b) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus if the Company had
previously furnished copies thereof to such Underwriter and PROVIDED, FURTHER,
that the liability under this subsection of each Selling Stockholder shall be
limited to an amount equal to the aggregate gross proceeds to such Selling
Stockholder from the sale of Securities sold by such Selling Stockholder
hereunder.
(c) Each Underwriter will, severally and not jointly, indemnify and
hold harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the
25
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting" and the information contained in the second sentence of the sixth
paragraph, the thirteenth paragraph and fourteenth paragraph under the caption
"Underwriting."
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. In any such case,
the indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
CSFBC, in the case of parties indemnified pursuant to Sections 7(a) and 7(b),
and by the Company, in the case of parties indemnified pursuant to Section 7(c).
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
(i) settlement includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company or the Selling Stockholders, as applicable, on the one hand and the
Underwriters on the other from the offering of the Securities 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 or
the Selling Stockholders, as applicable, on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company or the Selling
Stockholders, as applicable, on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
26
the offering (before deducting expenses) received by the Company or the Selling
Stockholders, as applicable, bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities 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 in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that 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 of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this
27
Agreement will not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). 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.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers 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, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholders and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(c), the Company and the Selling
Stockholders will, severally and not jointly, reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 10,000 Xxxxxx Xxxxx, Xxxxxxxx Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxx, or, if sent to the Selling Stockholders or any of them, will
be mailed, delivered or telegraphed and confirmed to the address of such Selling
Stockholder set forth on Schedule A hereto; PROVIDED, HOWEVER, that any notice
to an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
28
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
29
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
XXXXXX XXXXXXXXXX TECHNOLOGIES, INC.
By:____________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chairman, President & CEO
DLJ MERCHANT BANKING PARTNERS II, L.P.
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
DLJ OFFSHORE PARTNERS II, C.V.
DLJ DIVERSIFIED PARTNERS, L.P.
DLJ DIVERSIFIED PARTNERS-A, L.P.
DLJ MILLENNIUM PARTNERS, L.P.
DLJ MILLENNIUM PARTNERS-A, L.P.
DLJMB FUNDING II, INC.
DLJ INVESTMENT PARTNERS, L.P.
DLJ INVESTMENT FUNDING, INC.
UK INVESTMENT PLAN 1997 PARTNERS
DLJ EAB PARTNERS, L.P.
DLJ FIRST ESC, L.P.
BY: DLJ MERCHANT BANKING PARTNERS II, L.P., ON
BEHALF OF ITSELF AND AS ATTORNEY-IN-FACT FOR
EACH OF THE SELLING STOCKHOLDERS LISTED ABOVE
BY: DLJ MERCHANT BANKING II, INC., MANAGING
GENERAL PARTNER
By: ______________________________
Name:
Title:
30
XXXXXX XXXXXXXX
XXXX XXXXXXXX
XXXXXXXX XXXXXXXX
XXXXX BELDSTADT
XXX X. BELDSTADT
XXXX BELDSTADT FAMILY TRUST
XXXXX BELDSTADT FAMILY TRUST
XXX BELDSTADT FAMILY TRUST
XXXXXX X. XXXXXXXXXX
XXXX X. XXXXXX
EAST HILL FOUNDATION
GREATBATCH 1998 TRUST FOR CHILDREN (XXXXX XXXXXX)
GREATBATCH 1998 TRUST FOR CHILDREN (XXXXXXX XXXXXX)
XXX X. XXXXXXXXXX
THE XXXX XXXXXXXXXX TRUST
XXXXXXX X. AND XXXXXX X. XXXXXXXXXX
XXXXXXX X. XXXXXXXXXX
XXXXXX X. XXXXXXXXXX
HITACHI-MAXELL, LTD.
XXXX XXXXXXX
XXXXX X. XXXXXXXXXXX
XXXXXXXX X. AND XXXX X. XXXXXXXXXXX
XXXXXXXX X. AND XXXXX X. XXXXXXXXXXX
XXXXXX XXX XXXXXXXXXXX
XXXX X. XXXX
XXXXXX X. XXXX
XXXXXXX X. XXXXXXX
BY: XXXXXX X. XXXXXXX, AS ATTORNEY-IN-FACT FOR THE
SELLING STOCKHOLDERS LISTED ABOVE
By: ______________________________
Name:
Title:
31
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
U.S. BANCORP XXXXX XXXXXXX INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By:__________________________
Name:
Title:
32
35
SCHEDULE A
SELLING STOCKHOLDERS
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES TO
SELLING STOCKHOLDER TO BE SOLD BE SOLD
------------------- --------------- -------------
DLJ Merchant Banking Partners II, L.P.
DLJ Merchant Banking Partners II-A, L.P.
DLJ Offshore Partners II, C.V.
DLJ Diversified Partners, L.P.
DLJ Diversified Partners-A, L.P.
DLJ Millennium Partners, L.P.
DLJ Millennium Partners-A, L.P.
DLJMB Funding II, Inc.
DLJ Investment Partners, L.P.
DLJ Investment Funding, Inc.
UK Investment Plan 1997 Partners
DLJ EAB Partners, X.X.
XXX Xxxxx XXX X.X.
x/x XXX Merchant Banking Partners II, L.P.
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Xxxx Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxxx Xxxxxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
Xxxxx Xxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
33
Xxx X. Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Xxxx Xxxxxxxx Family Trust
c/o Xxx X. Xxxxxxxxxx and Xxxx Xxxxxxxx, as
Trustees of the Xxxx Xxxxxxxx Family Trust
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxx Xxxxxxxx Family Trust
c/o Xxx X. Xxxxxxxxxx and Xxx Xxxxxxxx, as
Trustees of the Xxxxx Xxxxxxxx Family Trust
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Xxx Xxxxxxxx Family Trust
c/o Xxx X. Xxxxxxxxxx and Xxx Xxxxxxxx, as
Trustees of the Xxx Xxxxxxxx Family Trust
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxxxxxx
00 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
East Hill Foundation
c/o Xx. Xxxxxx X. Xxxxxxxxxx
President/Chairman of the Board
0000 Xxxx Xxxxxx, Xxxxx #0
Xxxxxxxxxxxxx, XX 00000
Greatbatch 1998 Trust for Children (Xxxxx Xxxxxx)
c/o Xxx X. Xxxxxxxx, Trustee
of the Trust for Xxxxx Xxxxxx under the Xxx X.
Xxxxxxxxxx 1998 Trusts for the Children
000 X. Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Greatbatch 1998 Trust for Children (Xxxxxxx Xxxxxx)
c/o Xxx X. Xxxxxxxx, Trustee of the Trust for
34
Xxxxx Xxxxxx under the Xxx X.
Xxxxxxxxxx 1998 Trusts for the Children
000 X. Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, XX 00000
Xxx X. Xxxxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
The Xxxx Xxxxxxxxxx Trust
c/o Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxxxxxx
as Trustees of The Xxxx Xxxxxxxxxx Family
Trust U/A/D November 17, 1997
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx X. and Xxxxxx X. Xxxxxxxxxx
00 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxxx
00000 Xxxxxxxxx Xxxx
Xxxxx, XX 00000
Xxxxxx X. Xxxxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Hitachi Maxell, Ltd.
0-00-00 Xxxxxxx, Xxxxxxx-Xx
Xxxxx, 000-0000 Xxxxx
Attn: President
Xxxx Xxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxxxxx
000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxxx X. and Xxxx X. Xxxxxxxxxxx
As Tenants in Common
0000 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
35
Xxxxxxxx X. Xxxxxxxxxxx, Xx. and Xxxxx X. Xxxxxxxxxxx
As Tenants in Common
0000 X. Xxxxxxxx Xx. (#502)
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxx Xxxxxxxxxxx
c/o Xxxxxxxx X. Xxxxxxxxxxx as Custodian for
Xxxxxx X. Xxxxxxxxxxx under UGMA
0000 X. Xxxxxxxx Xx. (#502)
Xxx Xxxxxxxxx, XX 00000
Xxxx X. Xxxx
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxx
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx
X.X. Xxx 00, 0000 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxxx, XX 00000
Total....................................
=============== =============
36
SCHEDULE B
UNDERWRITERS
A. B.
NUMBER OF FIRM NUMBER OF FIRM
SECURITIES TO BE SECURITIES TO BE
PURCHASED FROM PURCHASED FROM
UNDERWRITER THE COMPANY SELLING STOCKHOLDERS
----------- ----------- --------------------
Credit Suisse First Boston Corporation..................
Xxxxxx Xxxxxxx & Co. Incorporated.......................
Banc of America Securities LLC..........................
U.S. Bancorp Xxxxx Xxxxxxx Inc..........................
Total........................ 2,000,000 4,000,000
========= =========
37
SCHEDULE C
LIST OF PERSONS AND ENTITIES REQUIRED TO EXECUTE LOCK-UP LETTERS
o Xxxxx X. Xxxxxxx
o Xxxxxxx X. Xxxxx
o Xxxxxx X. Xxxxxx
o Xxxxx X. Xxxxxxxxxx
o Xxxxx X. XxXxxxxx
o Xxxxxxx X. Xxxxxxxxxx
o Xxxxxxx X. Xxxx
o Xxxx X. Empl
o Xxxxxx X. Xxxxxxx
o Xxxx X. Xxxxxxx
o Xxxxxxxxx X. Xxxxx
o Xxxxxxx X. Xxxxxxxx
o Xxxxxxx Xxxxxxx
o Xxxxxx X. Xxxxxxx
o Xxxxxx X. Xxxxxxx
o Xxxxxx X. Xxxxxx
o Xxxxx Xxxxx
o Xxxx X. Xxxxxxxx
o Xxxxx X. Xxxxx
o Xxxxxx X. Xxxxxxx
o Xxxxx X. Xxxxxxx
o Xxxxxx X. Xxxxxx
o Xxxxxxxxx X. Xxxx
o Xxxxxxx X. Xxxx
o Xxxxxxx X. Xxxxxx
o Xxxxxx X. Xxxxxx
o Xxxxxxx X. Xxxxx
o Xxxxxx X. Xxxx, Xx.
o Xxxxxxx X. Xxxxxx
o Xxxx X. Xxxxx
o Xxxxxxxxxxx X. Xxxxx
o Xxxxxxxxx X. Xxxxx
o Xxxxx X. Xxxxx
o F. Xxxxx Xxxxx
38
o Xxxxxx X. Xxxxx
o Xxxxx X. Xxxxx
o Xxxx Xxxxxxx
o Xxxx Xxxxx
o Xxxxxx X. Xxxxxxx
o Xxxxxxx X. Xxxxxxx
o Xxxxxx X. Xxxxxxxx
o Xxxxxxx X. Xxxxx
o Xxxxx XxxXxxxxx
o Xxxxxx X. Xxxxxxx
o Xxxxx Xxxxx
o Xxxx X. Xxxxx
o Xxxxx X. Xxxxxxx
o Xxxxxx Xxxxxxxxx
o Xxxxxxxx X. Xxxxxxxxxxx Xx. as Custodian for Xxxxxx X. Xxxxxxxxxxx
under UGMA
o Xxxxxxx X. Xxxxxxx, Xxxx Xxxxxx Xxxxxxxx, Xx., and Xxxxxx Xxxxxx
Xxxxxxx or their successors, Trustees of the Xxxxxx X. Xxxxxxx 2000
Family Trust, U/A/D May 16, 2000
o Xxxxxxx X. Xxxx, Trustee of the Xxxxxxx X. Xxxx Trust
o Xxxxxxx X. Xxxx, Trustee of the Xxxxxx X. Xxxx Trust
o Xxxxxxx X. Xxxx, Trustee of the Xxxxx X. Xxxx Trust
39
EXHIBIT A
FORM OF LOCK-UP LETTER
_______________, 2001
Xxxxxx Xxxxxxxxxx Technologies, Inc.
10,000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx & Co. Incorporated
Bank of America Securities LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
As representatives of the several Underwriters
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to Credit Suisse First Boston Corporation, Xxxxxx
Xxxxxxx & Co. Incorporated, Bank of America Securities LLC and U.S. Xxxxx
Xxxxxxx Inc., as representatives of the several underwriters (the
"UNDERWRITERS") to execute the Underwriting Agreement, pursuant to which an
offering will be made that is intended to result in an orderly market for the
common stock, par value $.001 per share (the "SECURITIES"), of Xxxxxx Xxxxxxxxxx
Technologies, Inc. and any successor (by merger or otherwise) thereto (the
"COMPANY"), the undersigned hereby agrees that from the date hereof and until 90
days after the public offering date set forth on the final prospectus used to
sell the Securities (the "PUBLIC OFFERING DATE") pursuant to the Underwriting
Agreement, to which you are or expect to become parties, the undersigned will
not offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any shares of Securities or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse First Boston Corporation, except pursuant to or in
connection with the Underwriting Agreement (if the undersigned is a party to the
Underwriting Agreement). In addition, the undersigned agrees that, without the
prior written consent of Credit Suisse First Boston Corporation, it will not,
during the period commencing on the
40
date hereof and ending 90 days after the Public Offering Date, make any demand
for or exercise any right with respect to, the registration of any Securities or
any security convertible into or exercisable or exchangeable for the Securities,
except pursuant to or in connection with the Underwriting Agreement (if the
undersigned is a party to the Underwriting Agreement).
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market will not be subject to this Agreement. A
transfer of Securities to a family member or trust may be made, provided the
transferee agrees to be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before October 31, 2001.
Very truly yours,
----------------------------------
Name:
Title:
41
